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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) June 22, 1999
DLJ Commercial Mortgage Corp.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 333-82275-01 13-3956945
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
277 Park Avenue, New York, New York 10172
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 892-3000
---------------
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
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Item 2. Acquisition or Disposition of Assets.
On October 12, 1999, a single series of certificates entitled
Series 1999-CG3 Commercial Mortgage Pass-Through Certificates (the
"Certificates"), was issued pursuant to a pooling and servicing (the "Pooling
and Servicing Agreement"), dated as of October 1, 1999, among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor"), GE Capital Loan Services, Inc. as
master servicer (the "Master Servicer"), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer") and Norwest Bank Minnesota, National
Association as trustee (the "Trustee"). The Certificates consist of 22 classes
identified as the "Class S Certificates", the "Class A-1A Certificates", the
"Class A-1B Certificates", the "Class A-1C Certificates" the "Class A-2
Certificates", the "Class A-3 Certificates", the "Class A-4 Certificates", the
"Class A-5 Certificates" the "Class B-1 Certificates", the "Class B-2
Certificates", the "Class B-3 Certificates", the "Class B-4 Certificates", the
"Class B-5 Certificates", the "Class B-6 Certificates", the "Class B-7
Certificates", the "Class B-8 Certificates", the "Class C Certificates", the
"Class D Certificates", the "Class E Certificates", the "Class R-I
Certificates", the "Class R-II Certificates" and the "Class R-III Certificates",
respectively. The Certificates were issued in exchange for, and to evidence the
entire beneficial ownership interest in, the assets of a trust fund (the "Trust
Fund") consisting primarily of a segregated pool (the "Mortgage Pool") of
commercial and multifamily mortgage loans (the "Mortgage Loans"), having, as of
the close of business on October 1, 1999 (the "Cut-off Date"), an aggregate
principal balance of $899,289,205 (the "Initial Pool Balance"), after taking
into account all payments of principal due on the Mortgage Loans on or before
such date, whether or not received. The Depositor acquired certain of the
Mortgage Loans from GE Capital Access, Inc. ("GECA"), which is an affiliate of
the Master Servicer and the remaining Mortgage Loans from Column Financial, Inc.
("Column" which is an affiliate of the Depositor; and together with GECA the
"Mortgage Loan Sellers"), pursuant to certain mortgage loan purchase agreements
between the Depositor and each of the Mortgage Loan Sellers. The Depositor
caused the Mortgage Loans to be transferred to the Trustee for the benefit of
the holders of the Certificates. The Depositor sold the Class S, Class A-1A,
Class A-1B, Class A-1C, Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2
Certificates to Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"),
pursuant to an underwriting agreement dated October 5, 1999 (the "Underwriting
Agreement"), among the Depositor and DLJSC. A form of the Pooling and Servicing
Agreement is attached hereto as Exhibit 99.1 and a form of the Underwriting
Agreement is attached hereto as Exhibit 99.2.
In connection with the issuance of the Certificates, Sidley &
Austin, tax counsel to the Depositor, provided an opinion regarding certain tax
matters. A copy of the opinion is attached hereto as Exhibit 99.3.
The Class S Certificates has an initial aggregate notional
amount of $899,289,205. The Class A-1A Certificates have an initial aggregate
principal balance of $140,618,000. The Class A-1B Certificates have an initial
aggregate principal balance of $509,118,000. The Class A-1C Certificates have an
initial aggregate principal balance of $17,716,000. The Class A-2 Certificates
have an initial aggregate principal balance of $25,000,000. The Class A-3
Certificates have an initial aggregate principal balance of $49,461,000. The
Class A-4 Certificates have an initial aggregate principal balance of
$13,489,000. The Class A-5 Certificates have an initial aggregate principal
balance of $15,738,000. The Class B-1 Certificates have an initial aggregate
principal balance of $17,986,000. The Class B-2 Certificates have an initial
aggregate principal balance of $15,737,000. The Class B-3 Certificates have an
initial aggregate principal balance of $26,979,000. Class B-4 Certificates have
an initial aggregate principal balance of $13,489,000. The Class B-5
Certificates have an initial aggregate principal balance of $8,993,000. The
Class B-6 Certificates have an initial aggregate principal balance of
$11,241,000. The Class B-7 Certificates have an initial aggregate principal
balance of $8,993,000. The Class B-8 Certificates have
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an initial aggregate principal balance of $8,993,000. The Class C Certificates
have an initial aggregate principal balance of $4,497,000. The Class D
Certificates have an initial aggregate principal balance of $11,241,205.
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them in the Pooling and Servicing
Agreement.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired:
Not applicable.
(b) Pro forma financial information:
Not applicable.
(c) Exhibits:
Exhibit No. Description
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99.1 Pooling and Servicing Agreement.
99.2 Underwriting Agreement.
99.3 Opinion of Sidley & Austin with respect to certain tax matters.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: October 21, 1999
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/ N. Dante LaRocca
--------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
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EXHIBIT INDEX
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The following exhibits are filed herewith:
Exhibit No.
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99.1 Pooling and Servicing Agreement.
99.2 Underwriting Agreement.
99.3 Opinion of Sidley & Austin with respect to certain tax matters.
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EXECUTION COPY
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DLJ COMMERCIAL MORTGAGE CORP.,
as Depositor,
GE CAPITAL LOAN SERVICES, INC.
as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION
as Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 1999
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$899,289,205
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
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TABLE OF CONTENTS
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Section Page
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
1.01. Defined Terms..................................................... .....2
1.02. General Interpretive Principles........................................47
1.03. Certain Calculations in Respect of the Mortgage Pool...................48
1.04. Cross-Collateralized Mortgage Loans....................................49
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
2.01. Conveyance of Mortgage Loans...........................................50
2.02. Acceptance of Mortgage Assets by Trustee...............................53
2.03. Certain Repurchases and Substitutions of Mortgage Loans by the
Originators............................................................55
2.04. Representations and Warranties of the Depositor........................59
2.05. Representations and Warranties of the Master Servicer..................60
2.06. Representations and Warranties of the Special Servicer.................62
2.07. Representations and Warranties of the Trustee..........................64
2.08. Designation of the Certificates........................................65
2.09. Creation of REMIC I; Issuance of REMIC I Regular Interests and
REMIC I Residual Interest; Certain Matters Involving REMIC I
and the Loan REMICs....................................................66
2.10. Conveyance of REMIC I Regular Interests; Acceptance of REMIC I
Regular Interests by Trustee...........................................69
2.11. Creation of REMIC II; Issuance of REMIC II Regular Interests and
Class R-II Certificates; Certain Matters Involving REMIC II............69
2.12. Conveyance of REMIC II Regular Interests; Acceptance of REMIC II
Regular Interests by Trustee...........................................71
2.13. Creation of REMIC III; Issuance of REMIC III Certificates;
Certain Matters Involving REMIC III....................................71
2.14. Acceptance of Grantor Trusts by Trustee; Issuance of the
Class E and Class R-I Certificates.....................................74
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Section Page
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
3.01. Administration of the Mortgage Loans...................................76
3.02. Collection of Mortgage Loan Payments...................................77
3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.............................................77
3.04. Collection Account, Distribution Account, Interest Reserve Account.....79
3.05. Permitted Withdrawals From the Collection Account, the Distribution
Account, the Interest Reserve Account..................................82
3.06. Investment of Funds in the Collection Account, Servicing Accounts,
Reserve Accounts and the REO Account...................................86
3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage......................................................88
3.08. Enforcement of Alienation Clauses......................................91
3.09. Realization Upon Defaulted Mortgage Loans..............................92
3.10. Trustee to Cooperate; Release of Mortgage Files........................95
3.11. Master Servicing and Special Servicing Compensation; Interest on
and Reimbursement of Servicing Advances; Payment of Certain
Expenses; Obligations of the Trustee and any Fiscal Agent
regarding Back-up Servicing Advances...................................96
3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports...........................................100
3.13. Annual Statement as to Compliance.....................................103
3.14. Reports by Independent Public Accountants.............................103
3.15. Access to Certain Information.........................................104
3.16. Title to REO Property; REO Account....................................104
3.17. Management of REO Property............................................105
3.18. Sale of Mortgage Loans and REO Properties.............................108
3.19. Additional Obligations of Master Servicer.............................111
3.20. Modifications, Waivers, Amendments and Consents.......................114
3.21. Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping........................................................118
3.22. Sub-Servicing Agreements..............................................119
3.23. Controlling Class Representative......................................121
3.24. Certain Rights and Powers of the Controlling Class Representative.....123
3.25. Credit Leases.........................................................125
3.26. Alternate Special Servicer............................................125
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Section Page
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
4.01. Distributions.........................................................127
4.02. Statements to Certificateholders; Certain Other Reports...............137
4.03. P&I Advances; Advances relating to the Master Servicer Remittance
Amount................................................................140
4.04. Allocation of Realized Losses and Additional Trust Fund Expenses......142
4.05. Calculations..........................................................143
ARTICLE V
THE CERTIFICATES
5.01. The Certificates......................................................144
5.02. Registration of Transfer and Exchange of Certificates.................144
5.03. Book-Entry Certificates...............................................150
5.04. Mutilated, Destroyed, Lost or Stolen Certificates.....................151
5.05. Persons Deemed Owners.................................................151
5.06. Certification by Certificate Owners...................................151
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER
AND THE SPECIAL SERVICER
6.01. Liability of the Depositor, the Master Servicer and the Special
Servicer..............................................................152
6.02. Merger, Consolidation or Conversion of the Depositor, the
Master Servicer or the Special Servicer...............................152
6.03. Limitation on Liability of the Depositor, the Master Servicer, and
the Special Servicer..................................................152
6.04. Master Servicer and Special Servicer Not to Resign....................153
6.05. Rights of the Depositor and the Trustee in Respect of the Master
Servicer and the Special Servicer.....................................154
6.06. Designation of Special Servicer by the Controlling Class..............155
6.07. Master Servicer or Special Servicer as Owner of a Certificate.........156
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Section Page
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ARTICLE VII
DEFAULT
7.01. Events of Default.....................................................157
7.02. Trustee to Act; Appointment of Successor..............................161
7.03. Notification to Certificateholders....................................161
7.04. Waiver of Events of Default...........................................162
7.05. Additional Remedies of Trustee Upon Event of Default..................162
ARTICLE VIII
THE TRUSTEE
8.01. Duties of Trustee.....................................................163
8.02. Certain Matters Affecting the Trustee.................................164
8.03. Trustee and Fiscal Agent not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans.....................................166
8.04. Trustee and Fiscal Agent May Own Certificates.........................166
8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee
and Fiscal Agent......................................................166
8.06. Eligibility Requirements for Trustee..................................168
8.07. Resignation and Removal of Trustee....................................168
8.08. Successor Trustee.....................................................169
8.09. Merger or Consolidation of Trustee....................................170
8.10. Appointment of Co-Trustee or Separate Trustee.........................170
8.11. Appointment of Custodians.............................................171
8.12. Access to Certain Information.........................................171
8.13. Appointment of Fiscal Agent...........................................173
8.14. Advance Security Arrangement..........................................174
8.15. Filings with the Securities and Exchange Commission...................174
ARTICLE IX
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans......177
9.02. Additional Termination Requirements...................................179
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ARTICLE X
ADDITIONAL TAX PROVISIONS
10.01. Tax Administration....................................................180
10.02. Depositor, Master Servicer, Special Servicer, Trustee and Fiscal
Agent to Cooperate with Tax Administrator.............................183
10.03. Appointment of Tax Administrator......................................183
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment.............................................................184
11.02. Recordation of Agreement; Counterparts................................185
11.03. Limitation on Rights of Certificateholders............................185
11.04. Governing Law.........................................................186
11.05. Notices...............................................................186
11.06. Severability of Provisions............................................187
11.07. Successors and Assigns; Beneficiaries.................................187
11.08. Article and Section Headings..........................................187
11.09. Notices to and from the Rating Agencies and the Depositor.............187
11.10. Notices to Controlling Class Representative...........................189
11.11. Information Requested by GECA.........................................189
11.12. Complete Agreement....................................................189
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EXHIBITS
EXHIBIT A-1 Form of Class S Certificates
EXHIBIT A-2 Form of Class A-1A and Class A-1B Certificates
EXHIBIT A-3 Form of Class A-1C, Class A-2, Class A-3, Class A-4, Class A-5,
Class B-1 and Class B-2 Certificates
EXHIBIT A-4 Form of Class B-3, Class B-4, Class B-5, Class B-6, Class B-7,
Class B-8, Class C and Class D Certificates
EXHIBIT A-5 Form of Class E Certificates
EXHIBIT A-6 Form of Class R-I, Class R-II and Class R-III Certificates
EXHIBIT B-1A Schedule of Column Mortgage Loans
EXHIBIT B-1B Schedule of GECA Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT C Letter of Representations among Depositor, Trustee and initial
Depository
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2A Form of CMSA Loan Periodic Update File
EXHIBIT E-2B Form of CMSA Property File
EXHIBIT E-2C Form of CMSA Loan Set-up File
EXHIBIT E-3 Form of Comparative Financial Status Report
EXHIBIT E-4 Form of Delinquent Loan Status Report
EXHIBIT E-5 Form of Historical Loan Modification Report
EXHIBIT E-6 Form of Historical Loss Estimate Report
EXHIBIT E-7 Form of NOI Adjustment Worksheet
EXHIBIT E-8 Form of Operating Statement Analysis Report
EXHIBIT E-9 Form of REO Status Report
EXHIBIT E-10 Form of Watch List
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Non-Registered
Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of Non-Registered
Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered
Certificates
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered
Certificates
EXHIBIT G Form of Transferee Certificate in Connection with ERISA
(Definitive Subordinated Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Residual
Interest Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Residual Interest
Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of Special
Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M-1 Form of Column Mortgage Loan Purchase and Sale Agreement
EXHIBIT M-2 Form of GECA Mortgage Loan Purchase and Sale Agreement
EXHIBIT N Form of Union Capital Agreement
EXHIBIT O Schedule of Designated ARD Loans
EXHIBIT P Schedule of Designated Sub-Servicers
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<PAGE>
This Pooling and Servicing Agreement, is dated and effective as of
October 1, 1999, among DLJ COMMERCIAL MORTGAGE CORP. as Depositor, GE CAPITAL
LOAN SERVICES, INC. as Master Servicer, GMAC COMMERCIAL MORTGAGE CORPORATION as
Special Servicer, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION as Trustee.
PRELIMINARY STATEMENT:
Column (as defined herein) has sold to the Depositor, pursuant to
the Mortgage Loan Purchase and Sale Agreement dated as of October 5, 1999 (as
such may from time to time hereafter be amended, the "Column Mortgage Loan
Purchase and Sale Agreement"), between Column, DLJ Mortgage Capital, Inc. and
the Depositor, those Original Mortgage Loans (as defined herein) identified as
of the date hereof on the schedule attached hereto as Exhibit B-1A. A form of
the Column Mortgage Loan Purchase and Sale Agreement is attached hereto as
Exhibit M-1.
GECA (as defined herein) has sold to the Depositor, pursuant to the
Mortgage Loan Purchase and Sale Agreement dated as of October 5, 1999 (as such
may from time to time hereafter be amended, the "GECA Mortgage Loan Purchase and
Sale Agreement"), between GECA, General Electric Capital Corporation and the
Depositor, those Original Mortgage Loans identified as of the date hereof on the
schedule attached hereto as Exhibit B-1B. A form of the GECA Mortgage Loan
Purchase and Sale Agreement is attached hereto as Exhibit M-2.
The parties hereto desire to provide for, among other things, (i)
the creation of a common law trust, (ii) the transfer of the Original Mortgage
Loans, together with certain related rights, funds and property, by the
Depositor to the Trustee for the benefit of the Certificateholders (as defined
herein), (iii) the issuance of mortgage pass-through certificates in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the trust fund to be created hereunder, and (iv) the servicing and
administration of the Mortgage Loans (as defined herein), including the Original
Mortgage Loans, and the other assets that from time to time shall constitute
part of the trust fund to be created hereunder.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Section 1.01, subject to
modification in accordance with Section 1.04.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"Accrued Certificate Interest": The interest accrued from time to
time in respect of any Class of Regular Interest Certificates, calculated in
accordance with Section 2.13(g).
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust within the
meaning of Treasury regulation Section 1.856-6(b)(1), which is the first day on
which the Trust is treated as the owner of such REO Property for federal income
tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month in a year assumed
to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest on
an Actual/360 Basis.
"Additional Collateral": Any non-real property (including any Letter
of Credit) pledged and/or delivered by the related Borrower and held by the
mortgagee to secure payment on any Mortgage Loan.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the principal
balance of such Mortgage Loan has been paid in full), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
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"Additional Trust Fund Expense": Any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Regular Interest Certificateholders'
receiving less than the full amount of principal and/or Distributable
Certificate Interest to which they are entitled on any Distribution Date.
"Adjusted REMIC II Remittance Rate": With respect to REMIC II
Regular Interest A-1A, for any Interest Accrual Period, 7.120% per annum; with
respect to REMIC II Regular Interest A-1B, for any Interest Accrual Period,
7.340% per annum; with respect to REMIC II Regular Interest A-1C for any
Interest Accrual Period, 7.440% per annum; with respect to each of REMIC II
Regular Interests B-1 and B-2, for any Interest Accrual Period, a rate per
annum equal to the related REMIC II Remittance Rate for such Interest Accrual
Period; and, with respect to each other REMIC II Regular Interest, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i) the related
REMIC II Remittance Rate for such Interest Accrual Period and (ii) the related
"Fixed Cap Rate" specified below:
REMIC II Regular Interest Fixed Cap Rate
------------------------- --------------
A-2 7.540% per annum
A-3 7.730% per annum
A-4 7.830% per annum
A-5 8.120% per annum
B-3 6.925% per annum
B-4 6.925% per annum
B-5 6.925% per annum
B-6 6.925% per annum
B-7 6.925% per annum
B-8 6.925% per annum
C 6.925% per annum
D 6.925% per annum
"Administrative Fee Rate": With respect to each Mortgage Loan (and
any successor REO Mortgage Loan), the sum of the related Master Servicing Fee
Rate, plus the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": That certain interest accrued on any Advance
(and compounded monthly) at the Reimbursement Rate, which is payable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, all in accordance with Section 3.11(g) or Section 4.03(d), as
applicable.
"Advance Security Arrangement": As defined in Section 8.14.
"Adverse Grantor Trust Event": Either (i) any impairment of the
status of either Grantor Trust Pool as a Grantor Trust or (ii) the imposition of
a tax upon either Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or
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<PAGE>
withdrawal of (or the placing of such Class of Rated Certificates on watch
status in contemplation of any such action with respect to) the rating then
assigned to such Class of Rated Certificates by such Rating Agency.
"Adverse REMIC Event": Either (i) any impairment of the status of
any REMIC Pool as a REMIC or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon any REMIC Pool or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on prohibited contributions set forth in Section 860G(d)
of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
"Alternate Special Servicer": As defined in Section 3.26.
"A.M. Best": A.M. Best Company or its successor in interest.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Additional Interest shall
begin to accrue on such Mortgage Loan, which date is prior to the Stated
Maturity Date for such Mortgage Loan.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with USPAP (or, in the case of a
Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance as of the
date of such appraisal of $1,000,000 or less, either a limited appraisal and a
summary report or an internal valuation prepared by the Special Servicer) that
(i) indicates the "market value" of the subject property (within the meaning of
12 CFR ss. 225.62(g)) and (ii) is conducted by a Qualified Appraiser (except
that, in the case of a Mortgage Loan or an REO Mortgage Loan with a Stated
Principal Balance as of the date of such appraisal of $1,000,000 or less, the
appraiser may be an employee of the Special Servicer).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of (a) the date on which the most recent relevant Appraisal acceptable
for purposes of Section 3.19(c) hereof was obtained by the Special Servicer
pursuant to this Agreement and (b) the earliest of the relevant dates in respect
of such Required Appraisal Loan specified in the first sentence of Section
3.19(c) hereof) equal to the excess, if any, of (x) the sum of (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer, the Trustee or any
Fiscal Agent, all unpaid interest (net of Default Interest and, in the case of
an ARD Loan after its Anticipated Repayment Date, Additional Interest) accrued
on such Required Appraisal Loan through the most recent Due Date prior to such
Determination
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Date, (iii) all unpaid Special Servicing Fees accrued in respect of such
Required Appraisal Loan, (iv) all related unreimbursed Advances made by or on
behalf of the Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent in respect of such Required Appraisal Loan, together with all unpaid
Advance Interest accrued on such Advances, and (v) all currently due but unpaid
real estate taxes and assessments, insurance premiums and, if applicable, ground
rents in respect of the related Mortgaged Property or REO Property (net of any
Escrow Payments or other reserves held by the Master Servicer or the Special
Servicer with respect to (A) any such item, (B) tenant improvements and leasing
commissions in respect of the related Mortgaged Property or (C) debt service on
such Required Appraisal Loan), over (y) 90% of an amount equal to (i) the
Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal acceptable for
purposes of Section 3.19(c) hereof, net of (ii) the amount of any obligation(s)
secured by any mortgage liens on such Mortgaged Property or REO Property, as
applicable, that are prior to the lien of the Required Appraisal Loan.
Notwithstanding the foregoing, if in the case of any Required Appraisal Loan an
Appraisal acceptable for purposes of Section 3.19(c) hereof is not obtained
within 60 days following, and has not been obtained within the 12-month period
preceding, the earliest of the relevant dates in respect of such Required
Appraisal Loan specified in clauses (i) - (v) of the first sentence of Section
3.19(c) hereof, then until such Appraisal is obtained the Appraisal Reduction
Amount shall equal 25% of the Stated Principal Balance of such Required
Appraisal Loan; provided, however, that upon receipt of an Appraisal acceptable
for purposes of Section 3.19(c) hereof, the Appraisal Reduction Amount for such
Required Appraisal Loan will be recalculated in accordance with the preceding
sentence.
"Appraised Value": With respect to each Mortgaged Property or REO
Property, the appraised value thereof (as is) based upon the most recent
Appraisal obtained pursuant to this Agreement; provided, however, that, for
purposes of this Agreement, no party hereto may rely on an Appraisal that is
more than 12 months old (it being understood and agreed that this provision is
not intended by itself to impose any separate obligation on any party hereto to
periodically update Appraisals).
"ARD Loan": A Mortgage Loan that provides for the accrual of
Additional Interest thereon if such Mortgage Loan is not paid in full on or
prior to its Anticipated Repayment Date.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the related Borrower in connection with the origination of the
related Mortgage Loan, as such assignment may be amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan
delinquent in respect of its Balloon Payment, for each Due Date coinciding with
or following its Stated Maturity Date as of which such Mortgage Loan remains
outstanding and part of the Trust Fund (provided that such Mortgage Loan was not
paid in full, and no other Liquidation Event occurred in respect thereof, before
the end of the Collection Period in which such maturity date occurs), the
scheduled monthly payment of principal and/or interest deemed to be due in
respect of such Mortgage Loan on such Due Date equal to the amount that would
have been due in respect thereof on such Due Date (other than any Default
Interest) if such Mortgage Loan had been required to continue to accrue interest
in accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any) in effect immediately prior to, and without
regard to the occurrence of, such maturity date. With respect to any REO
Mortgage Loan, for any Due Date as of which the related REO Property remains
part of the Trust Fund, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
Monthly Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding sentence of this definition, the Assumed Monthly
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Payment) that was due (or deemed due) in respect of the related Mortgage Loan on
the last Due Date prior to its becoming an REO Mortgage Loan.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) all amounts on deposit in the
Distribution Account as of 11:00 a.m., New York City time, on such Distribution
Date, (ii) to the extent not included in the amount described in clause (a)(i)
of this definition, any P&I Advances and/or Compensating Interest Payments that
were made in respect of such Distribution Date, (iii) to the extent not included
in the amount described in clause (a)(i) of this definition, the aggregate
amount transferred (pursuant to Section 3.05(d)) from the Gain on Sale Reserve
Fund to the Distribution Account in respect of such Distribution Date, and (iv)
to the extent not included in the amount described in clause (a)(i) of this
definition, if such Distribution Date occurs during the month of March of any
year, the aggregate of the Interest Reserve Amounts with respect to the Interest
Reserve Loans transferred from the Interest Reserve Account to the Distribution
Account during such month of March for distribution on such Distribution Date,
net of (b) any portion of the amounts described in clause (a) of this definition
that represents one or more of the following: (i) collected Monthly Payments
that are due on a Due Date following the end of the related Collection Period,
(ii) any payments of principal (including Principal Prepayments) and interest,
Liquidation Proceeds and Insurance Proceeds received after the end of the
related Collection Period, (iii) any Prepayment Premiums, Yield Maintenance
Charges and/or Additional Interest; (iv) any amounts payable or reimbursable to
any Person from the Distribution Account pursuant to clauses (ii) through (v) of
Section 3.05(b), (v) if such Distribution Date occurs during the month of
February of any year or during the month of January of any year that is not a
leap year, the aggregate of the Interest Reserve Amounts with respect to the
Interest Reserve Loans to be withdrawn (pursuant to Section 3.04(c) and Section
3.05(b)(vi)) from the Distribution Account and deposited into the Interest
Reserve Account during such month of February or such month of January, as the
case may be, and held for future distribution, and (vi) any amounts deposited in
the Distribution Account in error; provided that the Available Distribution
Amount for the Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(v) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date (or,
in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment": Any Monthly Payment payable on a Mortgage Loan at
scheduled maturity that is at least twice as large as the normal Monthly Payment
due on such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated October 5, 1999,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Bid Allocation": With respect to the initial Master Servicer and
each Sub-Servicer (other than a Designated Sub-Servicer) and the proceeds of any
bid pursuant to Section 7.01(c), the amount of such proceeds (net of any
expenses incurred in connection with such bid, including, without limitation,
reasonable attorneys' fees, and out-of-pocket expenses incurred in connection
with transferring the servicing of the
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Mortgage Loans), multiplied by a fraction equal to (i) the Servicer Fee Amount
for the initial Master Servicer or such Sub-Servicer, as the case may be, as of
such date of determination, over (ii) the aggregate of the Servicer Fee Amounts
for the initial Master Servicer and all of the Sub-Servicers (other than the
Designated Sub-Servicers) as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Subordinated Certificate": Any Subordinated Certificate
that constitutes a Book-Entry Certificate.
"Borrower": The obligor or obligors on a Mortgage Note, including
any Person that has acquired the related Mortgaged Property and assumed the
obligations of the original obligor under the Mortgage Note.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Minneapolis, Minnesota, the
city or cities in which the Primary Servicing Offices of the Master Servicer and
the Special Servicer are located or the city in which the Corporate Trust Office
of the Trustee is located, are authorized or obligated by law or executive order
to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor": With respect to any Class of Regular Interest
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, then
outstanding, and the denominator of which is the related Class Principal Balance
or Class Notional Amount, as the case may be, outstanding as of the Closing
Date.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that:
(i) neither a Disqualified Organization nor a Non-United States Person shall be
a "Holder" of, or a "Certificateholder" with respect to, a Residual Interest
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval, direction or waiver pursuant to this Agreement that
specifically relates to the rights, duties and/or obligations hereunder of any
of the Depositor, the Master Servicer, the Special Servicer, the Tax
Administrator, the Trustee or any Fiscal Agent in its respective capacity as
such (other than any consent, approval or waiver contemplated by any of Sections
3.23, 3.24 and 6.06), any Certificate registered in the name of such party or in
the name of any Affiliate thereof shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that specifically relates to such
party has been obtained. The Certificate
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Registrar shall be entitled to request and conclusively rely upon a certificate
of the Depositor, the Master Servicer or the Special Servicer in determining
whether a Certificate is registered in the name of an Affiliate of such Person.
All references herein to "Certificateholders" or "Holders" shall reflect the
rights of Certificate Owners only insofar as they may indirectly exercise such
rights through the Depository and the Depository Participants (except as
otherwise specified herein), it being herein acknowledged and agreed that the
parties hereto shall be required to recognize as a "Certificateholder" or
"Holder" only the Person in whose name a Certificate is registered in the
Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Certificate Notional Amount": With respect to any Class S
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest, equal to the product of (a) the then
Certificate Factor for the Class S Certificates, multiplied by (b) the amount
specified on the face of such Certificate as the initial Certificate Notional
Amount thereof.
"Certificate Owner": With respect to any Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the then
Certificate Factor for the Class of Principal Balance Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation and having the same
payment terms. The respective Classes of Certificates are designated in Section
2.08(a). Any reference in any other Section or Subsection of this Agreement to
any Certificate or Certificates preceded by a Class designation shall be to a
Certificate or Certificates of the Class so designated in Section 2.08(a).
"Class A Certificate": Any of the Certificates designated as such in
Section 2.08.
"Class B Certificate": Any of the Certificates designated as such in
Section 2.08.
"Class E Sub-Account": A sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and Grantor Trust E, but not an asset of any REMIC Pool.
"Class Notional Amount": The aggregate hypothetical or notional
amount on which the Class S Certificates (as a collective whole) accrue interest
from time to time, as calculated in accordance with Section 2.13(d).
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"Class Principal Balance": The aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates, as
calculated in accordance with Section 2.13(e).
"Class S Portion": When used with respect to the Uncertificated
Accrued Interest in respect of any REMIC II Regular Interest for any Interest
Accrual Period, the portion of such Uncertificated Accrued Interest that is
equal to the product of (a) the entire amount of such Uncertificated Accrued
Interest, multiplied by (b) a fraction (not less than zero or greater than one),
the numerator of which is the excess, if any, of the REMIC II Remittance Rate in
respect of such REMIC II Regular Interest for such Interest Accrual Period, over
the Adjusted REMIC II Remittance Rate in respect of such REMIC II Regular
Interest for such Interest Accrual Period; provided that if the aggregate Class
S Portion of the Uncertificated Accrued Interest in respect of all the REMIC II
Regular Interests for any Interest Accrual Period, calculated without regard to
this proviso, would exceed an amount equal to the aggregate Accrued Certificate
Interest in respect of the Class S Certificates for such Interest Accrual
Period, then the Class S Portion of the Uncertificated Accrued Interest in
respect of each REMIC II Regular Interest for such Interest Accrual Period shall
be proportionately reduced until the aggregate Class S Portion of the
Uncertificated Accrued Interest in respect of all the REMIC II Regular Interests
for such Interest Accrual Period is equal to the aggregate Accrued Certificate
Interest in respect of the Class S Certificates for such Interest Accrual
Period. When used with respect to the Uncertificated Distributable Interest in
respect of any REMIC II Regular Interest for any Distribution Date, the portion
of such Uncertificated Distributable Interest that is equal to (a) the Class S
Portion of the Uncertificated Accrued Interest in respect of such REMIC II
Regular Interest for the related Interest Accrual Period, reduced (to not less
than zero) by (b) the product of (i) any portion of the Net Aggregate Prepayment
Interest Shortfall for such Distribution Date that is allocable to such REMIC II
Regular Interest in accordance with the definition of "Uncertificated
Distributable Interest", multiplied by (ii) a fraction, the numerator of which
is equal to the Class S Portion of the Uncertificated Accrued Interest in
respect of such REMIC II Regular Interest for the related Interest Accrual
Period, and the denominator of which is equal to the entire amount of the
Uncertificated Accrued Interest in respect of such REMIC II Regular Interest for
the related Interest Accrual Period.
"Closing Date": October 12, 1999.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto.
"CMSA Loan Periodic Update File": The report substantially in the
form and containing the information described in Exhibit E-2A attached hereto.
"CMSA Loan Set-up File": The report substantially in the form and
containing the information described in Exhibit E-2C attached hereto.
"CMSA Property File": The report substantially in the form and
containing the information described in Exhibit E-2B hereto.
"Code": The Internal Revenue Code of 1986 and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
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"Collection Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) in trust for the
Certificateholders, which shall be entitled "GE Capital Loan Services, Inc. [or
the name of any successor Master Servicer], as Master Servicer, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3".
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Column": Column Financial, Inc. or its successor in interest.
"Column Mortgage Loan": Any of the Mortgage Loans sold by Column to
the Depositor pursuant to the Column Mortgage Loan Purchase and Sale Agreement,
which Mortgage Loans are identified on Exhibit B-1A.
"Column Mortgage Loan Purchase and Sale Agreement": As defined in
the Preliminary Statement.
"Column Third Party Mortgage Loan": Any Column Mortgage Loan
originated by Union Capital.
"Commission": The Securities and Exchange Commission or any
successor thereto.
"Comparative Financial Status Report": A report substantially
containing the information described in Exhibit E-3 attached hereto, including,
among other things, the occupancy and Debt Service Coverage Ratio for each
Mortgage Loan or the related Mortgaged Property, as applicable, as of the
Determination Date immediately preceding the preparation of such report and the
revenue and net operating income for each of the following three periods (to the
extent such information is available): (i) the most current available
year-to-date, (ii) the previous two full fiscal years, and (iii) the "base year"
(representing the original analysis of information used as of the Cut-off Date).
For the purposes of the production by the Master Servicer or the Special
Servicer of any such report that is required to state information for any period
prior to the Cut-off Date, the Master Servicer or the Special Servicer, as the
case may be, may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the related Mortgage Loan
Seller, by the related Borrower or (x) in the case of such a report produced by
the Master Servicer, by the Special Servicer (if other than the Master Servicer
or an Affiliate thereof) and (y) in the case of such a report produced by the
Special Servicer, by the Master Servicer (if other than the Special Servicer or
an Affiliate thereof).
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by the Master Servicer pursuant to Section 3.19(a) to
cover Prepayment Interest Shortfalls incurred during the related Collection
Period.
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"Controlling Class": As of any date of determination, the Class of
Principal Balance Certificates with the lowest payment priority pursuant to
Section 4.01(a), that has a then outstanding Class Principal Balance that is not
less than 25% of its initial Class Principal Balance; provided that, if no Class
of Principal Balance Certificates has a Class Principal Balance that satisfies
the foregoing requirement, then the Controlling Class shall be the Class of
Principal Balance Certificates with the lowest payment priority pursuant to
Section 4.01(a). For purposes of this definition, the Class A-1A and Class A-1B
Certificates shall be treated as a single Class and, if appropriate under the
terms of this definition, shall collectively constitute the Controlling Class.
"Controlling Class Certificateholder": Any Holder of Certificates of
the Controlling Class.
"Controlling Class Representative": As defined in Section 3.23(a).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562, Attn: Corporate Trust Administration/DLJ Commercial
Mortgage Corp. Series 1999-CG3.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of
(i) a Liquidation Event occurring in respect of such Mortgage Loan or (ii) the
related Mortgaged Property becoming an REO Property).
"Corresponding REMIC II Regular Interest": With respect to any Class
of Principal Balance Certificates, the REMIC II Regular Interest that has an
alphabetical and, if applicable, numerical designation that is the same as the
alphabetical and, if applicable, numerical Class designation for such Class of
Principal Balance Certificates.
"Cross-Collateralized Group": Any group of Mortgage Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan, that is, by
its terms, cross-defaulted and cross-collateralized with any other Mortgage
Loan.
"Credit Lease": With respect to the CTL Loan, the lease agreement
between the Borrower as lessor and the Credit Tenant as lessee of the related
Mortgaged Property.
"Credit Tenant": The tenant under the Credit Lease.
"CTL Loan": The Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as Kaiser Permanente Office Building.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files.
"Cut-off Date": October 1, 1999.
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"Cut-off Date Balance": With respect to any Original Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all payments of principal due on or before such date,
whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, and without regard to the cross-collateralization
in the case of any Cross-Collateralized Mortgage Loan, the ratio of (x) the Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recent period of not
more than 12 months or less than three-months for which Net Operating Income can
be calculated (annualized if such period is less than 12 months), to (y) twelve
times the amount of the Monthly Payment in effect for such Mortgage Loan as of
such date of determination.
"Default Charges": Default Interest and/or late payment charges that
are paid or payable, as the context may require, in respect of any Mortgage Loan
or REO Mortgage Loan.
"Default Interest": With respect to any Mortgage Loan (or successor
REO Mortgage Loan), any amounts collected thereon, other than late payment
charges, Prepayment Premiums or Yield Maintenance Charges, that represent
interest (exclusive, if applicable, of Additional Interest) in excess of
interest accrued on the principal balance of such Mortgage Loan (or REO Mortgage
Loan) at the related Mortgage Rate, such excess interest arising out of a
default under such Mortgage Loan.
"Defaulted Mortgage Loan": A Specially Serviced Mortgage Loan (i)
that is delinquent in an amount equal to at least two Monthly Payments (not
including the Balloon Payment, if any) or is delinquent 30 days or more in
respect of its Balloon Payment, in either case such delinquency to be determined
without giving effect to any grace period permitted by the related Mortgage or
Mortgage Note and without regard to any acceleration of payments under the
related Mortgage and Mortgage Note, or (ii) as to which the Special Servicer
has, by written notice to the related Borrower, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Mortgage Loan which is repurchased from
the Trust or replaced with one or more Replacement Mortgage Loans, in either
case as contemplated by Section 2.03.
"Delinquent Loan Status Report": A report substantially in the form
and containing the information described in Exhibit E-4 attached hereto,
including, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, were (1) delinquent 30-59 days, (2) delinquent 60-89 days, (3)
delinquent 90 days or more, (4) current but specially serviced, or (5) in
foreclosure but as to which the related Mortgaged Property has not become an REO
Property, and those Mortgage Loans as to which the related Borrower is the
subject of a bankruptcy, insolvency or similar proceeding.
"Depositor": DLJ Commercial Mortgage Corp. or its successor in
interest.
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"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Designated ARD Loan": Any ARD Loan set forth on Exhibit O hereto.
"Designated Sub-Servicer": Any Sub-Servicer set forth on Exhibit P
hereto and any successor thereto under the related Sub-Servicing Agreement.
"Designated Sub-Servicer Agreement": Any Sub-Servicing Agreement
between a Designated Sub-Servicer and the Master Servicer.
"Determination Date": With respect to any calendar month, commencing
in November 1999, the fourth day of such month (or, if such fourth day is not a
Business Day, the immediately preceding Business Day). Each Determination Date
will relate to the Distribution Date in the same calendar month.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust other than through an
Independent Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) shall not be considered to
Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Discount Rate": As defined in Section 4.01(b).
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Tax Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Residual Interest Certificate by such
Person may cause the Trust or any Person having an Ownership Interest in any
Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Interest
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Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Interest Certificates, for any Distribution Date, an amount of interest
equal to all Accrued Certificate Interest in respect of such Class of
Certificates for the related Interest Accrual Period, reduced (to not less than
zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, multiplied by (ii) a fraction, expressed as a decimal,
the numerator of which is the Accrued Certificate Interest in respect of such
Class of Certificates for the related Interest Accrual Period, and the
denominator of which is the aggregate Accrued Certificate Interest in respect of
all the Classes of Regular Interest Certificates for the related Interest
Accrual Period.
"Distribution Account": The segregated account or accounts created
and maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled " Norwest Bank Minnesota, National
Association [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3".
"Distribution Date": With respect to any calendar month, commencing
in November 1999, the later of (i) the tenth day of such month (or, if such
tenth day is not a Business Day, the Business Day immediately following) and
(ii) the fourth Business Day following the Determination Date occurring in such
month.
"DLJSC": Donaldson, Lufkin & Jenrette Securities Corporation or its
successor in interest.
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to any Mortgage Loan (and any successor REO
Mortgage Loan), the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan is scheduled to be first due.
"EDGAR": The Electronic Data Gathering, Analysis, and Retrieval
System of the Commission, the computer system for the receipt, acceptance,
review and dissemination of documents submitted to the Commission in electronic
format.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, the long-term
deposit or long-term unsecured debt obligations of which (or of such
institution's parent holding company) are rated no less than "Aa3" by Moody's
and, if then rated thereby, "AA" by Fitch (if the deposits are to be held in the
account for more than 30 days), or the short-term deposit or short-term
unsecured debt obligations of which (or of such institution's parent holding
company) are rated no less than "P-1" by Moody's and, if then rated thereby,
"F-1+" by Fitch (if the deposits are to be held in the account for 30 days or
less), in any event at any time funds are on deposit therein, or (ii) a
segregated trust account maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b), and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
federal or state authority, or (iii) any other account that is acceptable to the
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Rating Agencies (as evidenced by written confirmation to the Trustee from each
Rating Agency that the use of such account would not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated Certificates), or
(iv) an account maintained with Bankers Trust Company or Norwest Bank Minnesota,
National Association, if (A) the long term unsecured debt obligations thereof
are rated no less than "A+" by Fitch and "A1" by Moody's and (B) the short term
unsecured debt obligations thereof are rated no less than "F-1+" by Fitch and
"P-1" by Moody's.
"Environmental Insurance Policy": With respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution conditions
and/or other environmental conditions that is maintained from time to time in
respect of such Mortgaged Property or REO Property, as the case may be, for the
benefit of, among others, the Trustee on behalf of the Certificateholders.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Borrower for application toward the
payment of real estate taxes, assessments, insurance premiums (including with
respect to any Environmental Insurance Policy), ground rents (if applicable) and
similar items in respect of the related Mortgaged Property.
"Event of Default": Any of the events described in Section 7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"FHLMC": The Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable, good faith judgment, with respect to any Mortgage
Loan or REO Property (other than a Mortgage Loan that is paid in full and other
than a Mortgage Loan or REO Property, as the case may be, that is repurchased or
replaced by Union Capital pursuant to the Union Capital Agreement, repurchased
or replaced by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase and Sale Agreement or purchased by the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s) pursuant to Section
9.01), that there has been a recovery of all related Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries that will ultimately be
recoverable.
"Fiscal Agent": A Person who is at any time appointed by the Trustee
pursuant to Section 8.13 to act as fiscal agent hereunder.
"Fiscal Agent Agreement": As defined in Section 8.13.
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"Fitch": Fitch IBCA, Inc. or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Fitch" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the other parties hereto, and specific ratings of Fitch IBCA,
Inc. herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated. References herein to "applicable rating category" (other
than such references to "highest applicable rating category") shall, in the case
of Fitch, be deemed to refer to such applicable rating category of Fitch,
without regard to any plus or minus or other comparable rating qualification.
"FNMA": The Federal National Mortgage Association or any successor.
"Gain on Sale Reserve Fund": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(d) in trust for the
Certificateholders, which shall be entitled "Norwest Bank Minnesota, National
Association [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3".
"GECA": GE Capital Access, Inc. or its successor in interest.
"GECA Mortgage Loan": Any of the Mortgage Loans sold by GECA to the
Depositor pursuant to the GECA Mortgage Loan Purchase and Sale Agreement, which
Mortgage Loans are identified on Exhibit B-1B.
"GECA Mortgage Loan Purchase and Sale Agreement": As defined in the
Preliminary Statement.
"Gold Ridge Apartments Mortgage Loan": The Mortgage Loan secured by
the Mortgaged Property identified on the Mortgage Loan Schedule as Gold Ridge
Apartments.
"Gold Ridge Apartments REMIC": The segregated pool of assets
designated as such in the Gold Ridge Apartments REMIC Declaration.
"Gold Ridge Apartments REMIC Declaration": The REMIC Declaration
dated as of August 30, 1999 with respect to the assets of the Gold Ridge
Apartments REMIC.
"Gold Ridge Apartments REMIC Regular Interest": The uncertificated
"regular interest", within the meaning of Section 860G(a)(1) of the Code, in the
Gold Ridge Apartments REMIC issued pursuant to the Gold Ridge Apartments REMIC
Declaration. The principal balance of the Gold Ridge Apartments REMIC Regular
Interest shall equal the principal balance of the Gold Ridge Apartments Mortgage
Loan or any related Replacement Mortgage Loan (or, if applicable, the deemed
principal balance of any successor REO Mortgage Loan) outstanding from time to
time. Payments and other collections of amounts received on or in respect of the
Gold Ridge Apartments Mortgage Loan or any related Replacement Mortgage Loan (or
any related REO Property) and allocable (in accordance with Section 1.03) to
interest (adjusted to the related Loan REMIC Remittance Rate) on, principal of
and/or Prepayment Premiums or Yield Maintenance Charges in respect of such
Original Mortgage Loan or any related Replacement Mortgage Loan (or any
successor REO Mortgage Loan) shall be deemed paid on the Gold Ridge Apartments
REMIC
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Regular Interest to REMIC I at the time such amounts are so received. The terms
of the Gold Ridge Apartments REMIC Regular Interest are otherwise set forth in
the related Loan REMIC Declaration.
"Gold Ridge Apartments REMIC Residual Interest": The sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in the Gold Ridge Apartments REMIC issued pursuant to the Gold Ridge
Apartments REMIC Declaration.
"Grantor Trust": A grantor trust as defined under Subpart E of Part
1 of Subchapter J of the Code.
"Grantor Trust E": The Grantor Trust designated as such in Section
2.14(a).
"Grantor Trust R-I": The Grantor Trust designated as such in Section
2.14(b).
"Grantor Trust Pool": Either of Grantor Trust E or Grantor Trust
R-I.
"Ground Lease": The ground lease pursuant to which any Borrower
holds a leasehold interest in the related Mortgaged Property.
"Group Environmental Insurance Policy": The Environmental Insurance
Policy that is maintained from time to time in respect of more than one
Mortgaged Property or REO Property.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including those so identified pursuant to
CERCLA or any other federal, state or local environmental related laws and
regulations now existing or hereafter enacted, and specifically including
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Loan Modification Report": A report substantially in the
form and containing the information described in Exhibit E-5 attached hereto,
and setting forth, among other things, those Mortgage Loans which, as of the
close of business on the Determination Date immediately preceding the
preparation of such report, have been modified pursuant to this Agreement (i)
during the related Collection Period and (ii) since the Cut-off Date, showing
the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially in the
form and containing the information described in Exhibit E-6 attached hereto,
and setting forth, among other things, as of the close of business on the
Determination Date immediately preceding the preparation of such report, (i) the
aggregate amount of Liquidation Proceeds and expenses relating to each Final
Recovery Determination made, both during the related Collection Period and
historically, and (ii) the amount of Realized Losses occurring during the
related Collection Period and historically, set forth on a Mortgage
Loan-by-Mortgage Loan basis.
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"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Tax Administrator, the
Trustee, any Fiscal Agent and any and all Affiliates thereof, (ii) does not have
any direct financial interest in or any material indirect financial interest in
any of the Depositor, either Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Tax Administrator, the Trustee, any Fiscal Agent or any
Affiliate thereof, and (iii) is not connected with the Depositor, either
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Tax
Administrator, the Trustee, any Fiscal Agent or any Affiliate thereof as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail to
be Independent of the Depositor, either Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Tax Administrator, the Trustee, any Fiscal
Agent or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor, such
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Tax
Administrator, the Trustee, such Fiscal Agent or any Affiliate thereof, as the
case may be.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I (or, solely for purposes of a Mortgage Loan
in a Loan REMIC, the related Loan REMIC) within the meaning of Section 856(d)(3)
of the Code if REMIC I (or the related Loan REMIC) were a real estate investment
trust (except that the ownership test set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee, the Tax Administrator or the Trust, delivered to the
Trustee and the Tax Administrator), so long as the Trust does not receive or
derive any income from such Person and provided that the relationship between
such Person and the Trust is at arm's length, all within the meaning of Treasury
regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee and the Tax Administrator of an Opinion of Counsel, which shall be at no
expense to the Trustee, the Tax Administrator or the Trust, to the effect that
the taking of any action in respect of any REO Property by such Person, subject
to any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Original Mortgage Loans.
"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO
Property, any hazard insurance policy, flood insurance policy, title insurance
policy, earthquake insurance policy, Environmental Insurance Policy, or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan (or the related Mortgaged Property) or such REO Property, as the
case may be.
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"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the related Borrower, in any
case, in accordance with the Servicing Standard.
"Insured CTL Event": As defined in Section 3.25.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any Loan REMIC Regular Interest, any REMIC I
Regular Interest, any REMIC II Regular Interest or any Class of Regular Interest
Certificates, consisting of one of the following: (i) a 30/360 Basis; or (ii) an
Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any Class of Regular Interest
Certificates, for any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for the
Certificateholders, which shall be entitled "Norwest Bank Minnesota, National
Association [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs during February of each year and
during January of each year that is not a leap year, an amount equal to
one-day's interest at the related Mortgage Rate on the Stated Principal Balance
of such Interest Reserve Loan as of the Due Date in the month in which such
Distribution Date occurs (but prior to the application of any amounts due on
such Due Date), to the extent that a Monthly Payment is received in respect
thereof for such Due Date on or before the related Master Servicer Remittance
Date or a P&I Advance is made in respect thereof for such Due Date on the
related P&I Advance Date.
"Interest Reserve Loan": Any Actual/360 Mortgage Loan (or successor
REO Mortgage Loan).
"Interested Person": Any party hereto, Column, GECA, Union Capital,
any Certificateholder, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Company Act": The Investment Company Act of 1940, as
amended.
"IRS": The Internal Revenue Service or any successor.
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
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"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment or an Assumed
Monthly Payment in respect of such Mortgage Loan due or deemed due on a Due Date
in a previous Collection Period, or on a Due Date coinciding with or preceding
the Cut-off Date, and not previously recovered. With respect to any REO Mortgage
Loan, all amounts received in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of the principal and/or
interest portions of a Monthly Payment or an Assumed Monthly Payment in respect
of the predecessor Mortgage Loan or late collections of the principal and/or
interest portions of an Assumed Monthly Payment in respect of such REO Mortgage
Loan due or deemed due on a Due Date in a previous Collection Period and not
previously recovered.
"Latest Possible Maturity Date": With respect to any Loan REMIC
Regular Interest, any REMIC I Regular Interest, REMIC II Regular Interest or
Class of Principal Balance Certificates, the date designated as the "latest
possible maturity date" thereof solely for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii).
"Lease Enhancement Policy": An insurance policy that provides,
subject to customary exclusions, that in the event of a permitted termination or
abatement of the Credit Lease by the Credit Tenant as a result of a casualty or
condemnation, the insurer under such policy will be required to make a specified
insurance payment.
"Letter of Credit": With respect to any Mortgage Loan, any
third-party letter of credit delivered by or at the direction of the Borrower
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased or replaced by Union Capital pursuant to the Union Capital
Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase and Sale Agreement, in each case as contemplated by Section 2.03; or
(iv) such Mortgage Loan is purchased by the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s) pursuant to Section 3.18
or Section 9.01. With respect to any REO Property (and the related REO Mortgage
Loan), any of the following events: (i) a Final Recovery Determination is made
with respect to such REO Property; or (ii) such REO Property is purchased by the
Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 3.18 or Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or 3.18 (including legal
fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
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"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property that is purchased by the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder(s) pursuant to Section 3.18 or Section 9.01
or that is repurchased or replaced by Union Capital pursuant to the Union
Capital Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase and Sale Agreement), the fee designated as such and payable to the
Special Servicer pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation, exclusive
of any portion thereof required to be released to the related Borrower in
accordance with applicable law and/or the terms and conditions of the related
Mortgage Note and Mortgage; (ii) the liquidation of a Mortgaged Property or
other collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Borrower; (iv) the purchase of a Defaulted Mortgage Loan by any
Controlling Class Certificateholder(s) pursuant to Section 3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan
by Union Capital pursuant to the Union Capital Agreement or by a Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase and Sale Agreement; (vi)
the substitution of one or more Replacement Mortgage Loans for a Deleted
Mortgage Loan by Union Capital pursuant to the Union Capital Agreement or by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase and Sale
Agreement (such cash amounts being any Substitution Shortfall Amounts); or (vii)
the purchase of a Mortgage Loan or REO Property by the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01.
"Loan REMIC": Each of the Gold Ridge Apartments REMIC, the Regency
Apartments REMIC and the Yonkers Shopping Center REMIC.
"Loan REMIC Declaration": Each of the Gold Ridge Apartments REMIC
Declaration, the Regency Apartments REMIC Declaration and the Yonkers Shopping
Center REMIC Declaration.
"Loan REMIC Interest": Any Loan REMIC Regular Interest or Loan REMIC
Residual Interest.
"Loan REMIC Regular Interest": Each of the Gold Ridge Apartments
REMIC Regular Interest, the Regency Apartments REMIC Regular Interest and the
Yonkers Shopping Center REMIC Regular Interest.
"Loan REMIC Remittance Rate": The per annum rate at which interest
accrues in respect of a Loan REMIC Regular Interest, as set forth in or
otherwise calculated in accordance with the related Loan REMIC Declaration.
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"Loan REMIC Residual Interest": Each of the Gold Ridge Apartments
REMIC Residual Interest, the Regency Apartments REMIC Residual Interest and the
Yonkers Shopping Center REMIC Residual Interest.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, and without regard to the cross-collateralization in the
case of any Cross-Collateralized Mortgage Loan, a fraction, expressed as a
percentage, the numerator of which is the then current principal amount of such
Mortgage Loan, and the denominator of which is the Appraised Value of the
related Mortgaged Property.
"Majority Controlling Class Certificateholder": As of any date of
determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class or Classes
of Principal Balance Certificates that constitute(s) the Controlling Class as of
such date of determination.
"Master Servicer": GE Capital Loan Services, Inc., or its successor
in interest, in its capacity as master servicer hereunder, or any successor
master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Collection Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including Principal
Prepayments) and interest (including Additional Interest), Liquidation Proceeds
and Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums and/or Yield Maintenance Charges received after
the end of the related Collection Period, (iv) any amounts payable or
reimbursable to any Person from the Collection Account pursuant to clauses (ii)
through (xix) of Section 3.05(a), and (v) any amounts deposited in the
Collection Account in error; provided that the Master Servicer Remittance Amount
for the Master Servicer Remittance Date that occurs in the same calendar month
as the anticipated Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day preceding each
Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Mortgage Loan, the fee designated as such and payable to the Master Servicer
pursuant to Section 3.11(a) and from which any Primary Servicing Fees are
payable.
"Master Servicing Fee Rate": With respect to each Mortgage Loan and
REO Mortgage Loan (other than a Primary Servicing Fee Loan), 0.05% per annum;
and, with respect to each Primary Servicing Fee Loan, 0.15% per annum.
"Maturity Assumptions": Collectively, the assumptions identified as
the "Maturity Assumptions" in the Prospectus Supplement.
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"Memorandum": The final Private Placement Memorandum dated October
5, 1999, relating to the Non-Registered Certificates delivered by the Depositor
to the Underwriter as of the Closing Date.
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing
current Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related loan
documents, results in a release of the lien of the Mortgage on
any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less
than the fair market value (as is) of the property to be
released, as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Borrower and
upon which the Special Servicer may conclusively rely); or
(C) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impairs the security for such
Mortgage Loan or reduces the likelihood of timely payment of
amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled monthly payment (or, in the case of an ARD Loan after its
Anticipated Repayment Date, the minimum required monthly payment) of principal
and/or interest on such Mortgage Loan, including any Balloon Payment, that is
actually payable by the related Borrower from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Borrower or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20); provided that the Monthly
Payment due in respect of any ARD Loan after its Anticipated Repayment Date
shall not include Additional Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the other parties
hereto, and specific ratings of Moody's Investors Service, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage": A mortgage, deed of trust, deed to secure debt or
similar document that secures a Mortgage Note and creates a lien on a Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the
order of Norwest Bank Minnesota, National
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Association, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, without recourse";
(ii) an original or a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in
clause (iv) of this definition, in each case with evidence of
recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any
intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case
with evidence of recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of
Norwest Bank Minnesota, National Association, as trustee for
the registered holders of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1999-CG3, in recordable form;
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the
Mortgage), in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, in recordable form;
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those
instances where the terms or provisions of the Mortgage or
Mortgage Note have been modified or the Mortgage Loan has been
assumed;
(vii) the original or a copy of the policy of lender's title
insurance;
(viii) filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the
related Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there
is an effective UCC Financing Statement in favor of the
related Mortgage Loan Seller on record with the applicable
public office for UCC Financing Statements, an original UCC-2
or UCC-3, as appropriate, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3;
(ix) any environmental indemnity agreement and the original or a
copy of any Environmental Insurance Policy relating solely to
such Mortgage Loan;
(x) power of attorney, guaranty, property management agreement,
Ground Lease, intercreditor agreement, cash management
agreement and lock-box agreement, relating to such Mortgage
Loan;
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(xi) any original documents (including any security agreements and
any Letters of Credit and related letter of credit
reimbursement agreements) relating to, evidencing or
constituting Additional Collateral;
(xii) any insurance certificates relating to hazard insurance
policies maintained by the Borrower with respect to the
related Mortgaged Property that are in the possession of the
related Mortgage Loan Seller; and
(xiii) if such Mortgage Loan is the CTL Loan, an original or copy of
the Credit Lease and Lease Enhancement Policy;
provided that the evidence of recording referred to in clauses (ii) and (iii)
above shall not be required prior to the second anniversary of the Closing Date
if the subject document has not been returned from the applicable recording
office; and provided, further, that whenever the term "Mortgage File" is used to
refer to documents actually received by the Trustee or by a Custodian on its
behalf such term shall not be deemed to include such documents and instruments
required to be included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage
Loan Schedule and from time to time held in the Trust Fund. As used herein, the
term "Mortgage Loan" includes the related Mortgage Note, Mortgage and other
security documents contained in the related Mortgage File.
"Mortgage Loan Purchase and Sale Agreements": The Column Mortgage
Loan Purchase and Sale Agreement and the GECA Mortgage Loan Purchase and Sale
Agreement.
"Mortgage Loan Schedule": Together, the two lists of Mortgage Loans
attached hereto as Exhibit B-1A and, Exhibit B-1B, respectively, as such lists
may be amended from time to time in accordance with this Agreement. Such lists
shall set forth the following information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the Mortgage Rate as of the Cut-off Date;
(vi) the (A) original and remaining term to stated maturity and (B)
Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the original and
remaining amortization term;
(viii) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, the other Mortgage Loans contained in the
related Cross-Collateralized Group;
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(ix) whether the Mortgage Loan is an ARD Loan and, if so, the
Anticipated Repayment Date;
(x) whether the Mortgage Loan is the CTL Loan and, if so, the
Credit Tenant under the Credit Lease;
(xi) whether such Mortgage Loan provides for defeasance and, if so,
the period during which defeasance may occur;
(xii) whether the Mortgage Loan is secured by a fee simple interest
in the Mortgaged Property; by the Borrower's leasehold
interest, and a fee simple interest, in the Mortgaged
Property; or solely by a leasehold interest in the Mortgaged
Property;
(xiii) the name of the originator of the Mortgage Loan; and
(xiv) the Interest Accrual Basis.
"Mortgage Loan Sellers": GECA and Column.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Mortgage Loans as of any particular date of determination.
"Mortgage Rate": With respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law, as such rate
may be modified in accordance with Section 3.20 or in connection with a
bankruptcy, insolvency or similar proceeding involving the related Borrower. In
the case of each of the ARD Loans, the related Mortgage Rate will be subject to
increase in accordance with the related Mortgage Note if the particular Mortgage
Loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property": The real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage and
constituting collateral for a Mortgage Loan.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount of the Compensating Interest Payment
remitted by the Master Servicer pursuant to Section 3.19(a) on the Master
Servicer Remittance Date related to such Distribution Date.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Assumption Fee": As defined in Section 3.08.
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"Net Default Charges": With respect to any Mortgage Loan, any
Default Charges actually collected from the related Borrower or out of other
collections thereon (based on the allocations specified in Section 1.03), net of
any and all Advance Interest accrued on Advances made in respect of such
Mortgage Loan and payable from such Default Charges in accordance with this
Agreement.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06 (other than losses of what would otherwise
have constituted interest or other income earned on such funds).
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds held in such Investment Account in accordance with Section 3.06 (other
than losses of what would otherwise have constituted interest or other income
earned on such funds), exceeds the aggregate of all interest and other income
realized during such Collection Period on such funds; provided that, in the case
of any Investment Account and any particular investment of funds in such
Investment Account, Net Investment Loss shall not include any loss with respect
to such investment which is incurred solely as a result of the insolvency of the
federal or state chartered depository institution or trust company that holds
such Investment Account, so long as such depository institution or trust company
satisfied the qualifications set forth in the definition of Eligible Account at
the time such investment was made.
"Net Operating Income": With respect to any Mortgaged Property, the
net operating income derived from such Mortgaged Property for any specified
period, calculated in accordance with Exhibit K.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer with respect to Specially Serviced Mortgaged Loans and REO Mortgage
Loans, and by the Master Servicer with respect to all other Mortgage Loans,
substantially in the form and containing the information described in Exhibit
E-7 attached hereto, presenting the computations made in accordance with the
methodology described in such Exhibit to "normalize" the full year net operating
income and debt service coverage numbers used in the other reports required by
this Agreement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Mortgage Loan that, as determined by the Master Servicer or, if applicable,
the Trustee or any Fiscal Agent, in its reasonable, good faith judgment, will
not be ultimately recoverable from late payments, Insurance Proceeds,
Liquidation Proceeds or any other recovery on or in respect of such Mortgage
Loan.
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"Nonrecoverable Servicing Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 3.11(h), any
Servicing Advance previously made or to be made in respect of a Mortgage Loan or
REO Property that, as determined by the Master Servicer, the Special Servicer
or, if applicable, the Trustee or any Fiscal Agent, in its reasonable, good
faith judgment, will not be ultimately recoverable from late payments, Insurance
Proceeds, Liquidation Proceeds or any other recovery on or in respect of such
Mortgage Loan or REO Property.
"Non-Registered Certificate": Any Certificate that has not been
registered under the Securities Act. As of the Closing Date, the Class B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class C, Class D, Class
E, Class R-I, Class R-II and Class R-III Certificates will constitute
Non-Registered Certificates.
"Non-United States Person": Any Person other than a United States
Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer or a Responsible Officer of the
Trustee or any Fiscal Agent, as the case may be.
"Operating Statement Analysis Report": As defined in Section
3.12(b).
"Opinion of Counsel": A written opinion of counsel (which counsel,
in the case of any such opinion of counsel relating to the taxation of the Trust
Fund or any portion thereof or the status of any REMIC Pool as a REMIC or the
status of either Grantor Trust Pool as a Grantor Trust for taxation purposes,
shall be Independent of the Depositor, each Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, any Fiscal Agent and the Tax
Administrator, but which may act as counsel to such Person) acceptable to and
delivered to the addressee(s) thereof and which Opinion of Counsel, except as
provided herein, shall not be at the expense of the Trustee or the Tax
Administrator.
"Original Mortgage Loans": Collectively, those Mortgage Loans
identified on the Mortgage Loan Schedule as being included in the Trust Fund as
of the Closing Date.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Mortgage Loan, any
advance made by the Master Servicer, the Trustee or any Fiscal Agent pursuant to
Section 4.03.
"P&I Advance Date": The Business Day preceding each Distribution
Date.
"Pass-Through Rate": The per annum rate at which interest accrues in
respect of any Class of Regular Interest Certificates during any Interest
Accrual Period, as set forth in or otherwise calculated in accordance with
Section 2.13(f).
"Percentage Interest": With respect to any Regular Interest
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the
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Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Class Principal Balance or Class
Notional Amount, as the case may be, of the relevant Class as of the Closing
Date. With respect to a Class E Certificate or Residual Interest Certificate,
the percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Performing Mortgage Loan": Any Corrected Mortgage Loan and any
Mortgage Loan as to which a Servicing Transfer Event has not occurred.
"Permitted Investments": Any one or more of the following
obligations or securities:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States
or any agency or instrumentality thereof, provided that each
such obligation is backed by the full faith and credit of the
United States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time
of investment rated in the highest short-term debt rating
category of each of Moody's and, if rated thereby, Fitch (or,
in the case of either Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates, as confirmed in writing to the
Trustee by such Rating Agency);
(iii) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances of any bank or trust company
organized under the laws of the United States or any state
thereof, provided that the short-term unsecured debt
obligations of such bank or trust company are at the time of
investment rated in the highest short-term debt rating
category of each of Moody's and, if rated thereby, Fitch (or,
in the case of either Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates, as confirmed in writing to the
Trustee by such Rating Agency);
(iv) commercial paper of any corporation incorporated under the
laws of the United States or any state thereof (or of any
corporation not so incorporated, provided that the commercial
paper is United States Dollar denominated and amounts payable
thereunder are not subject to any withholding imposed by any
non-United States jurisdiction), provided that such commercial
paper is rated in the highest short-term debt rating category
of each of Moody's and, if rated thereby, Fitch (or, in the
case of either Rating Agency, has such lower rating as will
not result in an Adverse Rating Event with respect to any
Class of Rated Certificates, as confirmed in writing to the
Trustee by such Rating Agency);
(v) units of money market funds which maintain a constant net
asset value, provided that such units of money market funds
are rated in the highest applicable rating category of each of
Moody's and, if rated thereby, Fitch (or, in the case of
either Rating Agency, have such lower rating as will not
result in an Adverse Rating Event with
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respect to any Class of Rated Certificates, as confirmed in
writing to the Trustee by such Rating Agency); or
(vi) any other obligation or security that is acceptable to the
Rating Agencies and will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed
in writing to the Trustee by each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than 30 days and (Z) except in the case of a
Permitted Investment described in clause (v) above, a fixed interest rate or an
interest rate that is tied to a single interest rate index plus a single fixed
spread; and provided, further, that each investment described hereunder must be
a "cash flow investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee": Any Transferee of a Residual Interest
Certificate other than either a Disqualified Organization or a Non-United States
Person; provided that if a Transferee is classified as a partnership under the
Code, such Transferee shall only be a Permitted Transferee if all of its
beneficial owners are United States Persons.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of Part II of the FNMA
Multifamily Guide, as amended from time to time.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Interest Certificateholder": As to any taxable
year of any REMIC Pool, the Holder of Certificates evidencing the largest
Percentage Interest in the Class of Residual Interest Certificates constituting
the sole class of "residual interests" in respect of such REMIC Pool.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the Loan REMIC Regular Interests, the REMIC I Regular Interests, the
REMIC II Regular Interests and the Certificates for federal income tax purposes,
the assumptions that each ARD Loan is paid in its entirety on its Anticipated
Prepayment Date and that no Mortgage Loan is otherwise voluntarily prepaid prior
to its Stated Maturity Date.
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"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made after its Due Date
in any Collection Period, any payment of interest (net of related Master
Servicing Fees and, further, net of any portion of such interest that represents
Default Interest or Additional Interest) actually collected from the related
Borrower and intended to cover the period from and after such Due Date to, but
not including, the date of prepayment (exclusive, however, of any related
Prepayment Premium or Yield Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part made prior to its
Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Borrower (without regard to any Prepayment Premium or
Yield Maintenance Charge that may have been collected), that would have accrued
on the amount of such Principal Prepayment during the period from the date of
prepayment to, but not including, such Due Date (less the amount of related
Master Servicing Fees and, if applicable, exclusive of Default Interest and
Additional Interest).
"Prepayment Premium": With respect to any Mortgage Loan, any
premium, penalty or fee paid or payable, as the context requires, by a Borrower
in connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan or any successor REO Mortgage Loan, to the extent
such premium, penalty or fee is calculated as a percentage of the principal
amount being prepaid or as a specified amount.
"Primary Servicing Fee": With respect to each Primary Servicing Fee
Loan, the monthly fee calculated at 0.10% per annum, payable to the Sub-Servicer
by the Master Servicer from the Master Servicing Fee.
"Primary Servicing Fee Loans": The Mortgage Loans secured by (and
any successor REO Mortgage Loans relating to) those Mortgaged Properties
identified on the Mortgage Loan Schedule as West End Court and The Fox Glen I
and II Apartments.
"Primary Servicing Office": The office of the Master Servicer or the
Special Servicer, as the context may require, that is primarily responsible for
such party's servicing obligations hereunder.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate", then the
Trustee, in its sole discretion, shall select an equivalent publication that
publishes such "prime rate"; and if such "prime rate" is no longer generally
published or is limited, regulated or administered by a governmental or quasi-
governmental body, then the Trustee shall select a comparable interest rate
index. In either case, such selection shall be made by the Trustee in its sole
discretion and the Trustee shall notify the Master Servicer and the Special
Servicer in writing of its selection.
"Principal Balance Certificate": Any of the Certificates designated
as such in Section 2.08.
"Principal Balance Reduction": Any reduction made in the Class
Principal Balance of any Class of Principal Balance Certificates pursuant to
Section 4.04(a), the Uncertificated Principal Balance of any REMIC II Regular
Interest pursuant to Section 4.04(b) or the Uncertificated Principal Balance of
any REMIC I Regular Interest pursuant to Section 4.04(c).
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"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the aggregate (without duplication) of the following:
(a) all payments of principal (other than Principal Prepayments)
received on the Mortgage Loans during the related Collection Period, in each
case net of any portion of the particular payment that represents a Late
Collection of principal for which a P&I Advance was previously made for a prior
Distribution Date or that represents the principal portion of a Monthly Payment
due on or before the Cut-off Date or on a Due Date subsequent to the related
Collection Period;
(b) all scheduled payments of principal due in respect of the
Mortgage Loans for their respective Due Dates occurring during the related
Collection Period that were received (other than as part of a Principal
Prepayment) prior to the related Collection Period;
(c) all Principal Prepayments received on any of the Mortgage Loans
during the related Collection Period;
(d) all Liquidation Proceeds and Insurance Proceeds received on any
of the Mortgage Loans during the related Collection Period that were identified
and applied by the Master Servicer as recoveries of principal of such Mortgage
Loans in accordance with Section 1.03, in each case net of any portion of such
proceeds that represents a Late Collection of principal due on or before the
Cut-off Date or for which a P&I Advance was previously made for a prior
Distribution Date;
(e) all Liquidation Proceeds, Insurance Proceeds and REO Revenues
received in respect of any REO Properties during the related Collection Period
that were identified and applied by the Master Servicer as recoveries of
principal of the related REO Mortgage Loans in accordance with Section 1.03, in
each case net of any portion of such proceeds and/or revenues that represents a
Late Collection of principal due on or before the Cut-off Date or for which a
P&I Advance was previously made for a prior Distribution Date; and
(f) the respective principal portions of all P&I Advances made in
respect of the Mortgage Loans and any REO Mortgage Loans with respect to such
Distribution Date.
"Principal Prepayment": Any voluntary payment of principal made by
the Borrower on a Mortgage Loan that is received in advance of its scheduled Due
Date, that is not accompanied by an amount of interest (without regard to any
Prepayment Premium, Yield Maintenance Charge and/or Additional Interest that may
have been collected) representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
"Proposed Plan": As defined in Section 3.17(a).
"Prospectus": The Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement": That certain prospectus supplement dated
October 5, 1999, relating to the Registered Certificates, that is a supplement
to the Base Prospectus.
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"Purchase Price": With respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Mortgage Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Mortgage Loan) at the related Mortgage Rate to, but not including,
the Due Date occurring in the Collection Period during which the applicable
purchase or repurchase occurs, (c) all related unreimbursed Servicing Advances,
and (d) solely in the case of a purchase by Union Capital pursuant to the Union
Capital Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase and Sale Agreement, (i) all accrued and unpaid Advance Interest in
respect of related Advances, (ii) all related Special Servicing Fees, whether
paid or then owing, and (iii) to the extent not otherwise included in the amount
described in the preceding clause (c), any costs and expenses incurred by the
Master Servicer or the Trustee (on behalf of the Trust) in enforcing the
obligation of such Person to purchase such Mortgage Loan.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Deleted Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a fixed rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has the
same Due Date as, and a grace period for delinquent Monthly Payments that is no
longer than, the Due Date and grace period, respectively, of the Deleted
Mortgage Loan; (iv) is accruing interest on the same Interest Accrual Basis as
the Deleted Mortgage Loan; (v) has a remaining term to stated maturity not
greater than, and not more than two years less than, that of the Deleted
Mortgage Loan and, in any event, has a Stated Maturity Date not later than two
years prior to the Rated Final Distribution Date; (vi) has a then current
Loan-to-Value Ratio not higher than, and a then current Debt Service Coverage
Ratio not lower than, the Loan-to-Value Ratio and Debt Service Coverage Ratio,
respectively, of the Deleted Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Deleted Mortgage Loan, (viii)
will comply (except in a manner that would not be adverse to the interests of
the Certificateholders (as a collective whole) in or with respect to such
mortgage loan), as of the date of substitution, with all of the representations
relating to the Deleted Mortgage Loan set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement and, in the case of a Column
Third Party Mortgage Loan, the Union Capital Agreement; (ix) has a Phase I
Environmental Assessment relating to the related Mortgaged Property in its
Servicing File, which Phase I Environmental Assessment will evidence that there
is no material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be required under
applicable law; and (x) constitutes a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided, however, that if more
than one mortgage loan is to be substituted for any Deleted Mortgage Loan, then
all such proposed Replacement Mortgage Loans shall,
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in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (x) of this
definition; and provided, further, that no mortgage loan shall be substituted
for a Deleted Mortgage Loan unless (x) such prospective Replacement Mortgage
Loan shall be acceptable to the Controlling Class Representative (or, if there
is no Controlling Class Representative then serving, to the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class), in its (or their) sole discretion, and (y) each Rating
Agency shall have confirmed in writing to the Trustee that such substitution
will not in and of itself result in an Adverse Rating Event with respect to any
Class of Rated Certificates (such written confirmation to be obtained by the
party (i.e., GECA, Column or Union Capital) effecting the substitution). It is
understood and agreed that the Controlling Class Representative (or, if no
Controlling Class Representative is then serving, the Holders of Certificates
representing a majority of the Voting Rights assigned to the Controlling Class)
could find a prospective Replacement Mortgage Loan unacceptable for any reason
or no reason whatsoever.
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": The Distribution Date in October
2032.
"Rating Agency": Each of Moody's and Fitch.
"Realized Loss": With respect to: (1) each defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor REO Mortgage Loan as to which a Final Recovery Determination has been
made as to the related REO Property, an amount (not less than zero) equal to (a)
the unpaid principal balance of such Mortgage Loan or REO Mortgage Loan, as the
case may be, as of the commencement of the Collection Period in which the Final
Recovery Determination was made, plus (b) without taking into account the amount
described in subclause (1)(c) of this definition, all unpaid interest accrued in
respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, to but
not including the related Due Date in the Collection Period in which the Final
Recovery Determination was made (exclusive, however, of any portion of such
unpaid interest that constitutes Default Interest or, in the case of an ARD Loan
after its Anticipated Repayment Date, Additional Interest), minus (c) all
payments and proceeds, if any, received in respect of such Mortgage Loan or REO
Mortgage Loan, as the case may be, during the Collection Period in which such
Final Recovery Determination was made (net of any related Servicing Advances
reimbursed therefrom and any related Liquidation Expenses paid therefrom); (2)
each defaulted Mortgage Loan as to which any portion of the principal or past
due interest payable thereunder was canceled in connection with a bankruptcy,
insolvency or similar proceeding involving the related Borrower or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or the Special Servicer pursuant to Section 3.20, the amount
of such principal or past due interest (other than any Default Interest and, in
the case of an ARD Loan after its Anticipated Repayment Date, Additional
Interest) so canceled; and (3) each defaulted Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for any
period in connection with a bankruptcy, insolvency or similar proceeding
involving the related Borrower or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20, the amount of any consequent reduction in the
interest portion of each successive Monthly Payment due thereon (each such
Realized Loss to be deemed to have been incurred on the Due Date for each
affected Monthly Payment).
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"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Regency Apartments Mortgage Loan": The Mortgage Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as The Regency
Apartments
"Regency Apartments REMIC": The segregated pool of assets designated
as such in the Regency Apartments REMIC Declaration.
"Regency Apartments REMIC Declaration": The REMIC Declaration dated
as of August 30, 1999 with respect to the assets of the Regency Apartments
REMIC.
"Regency Apartments REMIC Regular Interest": The uncertificated
"regular interest", within the meaning of Section 860G(a)(1) of the Code, in the
Regency Apartments REMIC issued pursuant to the Regency Apartments REMIC
Declaration. The principal balance of the Regency Apartments REMIC Regular
Interest shall equal the principal balance of the Regency Apartments Mortgage
Loan or any related Replacement Mortgage Loan (or, if applicable, the deemed
principal balance of any successor REO Mortgage Loan) outstanding from time to
time. Payments and other collections of amounts received on or in respect of the
Regency Apartments Mortgage Loan or any related Replacement Mortgage Loan (or
any related REO Property) and allocable (in accordance with Section 1.03) to
interest (adjusted to the related Loan REMIC Remittance Rate) on, principal of
and/or Prepayment Premiums or Yield Maintenance Charges in respect of such
Original Mortgage Loan or any related Replacement Mortgage Loan (or any
successor REO Mortgage Loan) shall be deemed paid on the Regency Apartments
REMIC Regular Interest to REMIC I at the time such amounts are so received. The
terms of the Regency Apartments REMIC Regular Interest are otherwise set forth
in the related Loan REMIC Declaration.
"Regency Apartments REMIC Residual Interest": The sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in the Regency Apartments REMIC issued pursuant to the Regency
Apartments REMIC Declaration.
"Registered Certificate": Any Certificate that has been registered
under the Securities Act. As of the Closing Date, the Class S, Class A-1A, Class
A-1B, Class A-1C, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1 and
Class B-2 Certificates constitute Registered Certificates.
"Regular Interest Certificate": Any of the Certificates designated
as such in Section 2.08.
"Reimbursement Rate": The rate per annum applicable to the accrual
and monthly compounding of Advance Interest, which rate per annum is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC I": The segregated pool of assets designated as such in
Section 2.09(a)
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in each such
case, designated as a "regular interest" in REMIC I. The REMIC I Regular
Interests have the designations and terms provided for in Section 2.09.
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"REMIC I Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC I Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.09(f).
"REMIC I Residual Interest": The sole uncertificated "residual
interest", within the meaning of Section 860G(a)(2) of the Code, in REMIC I
issued pursuant to this Agreement.
"REMIC II": The segregated pool of assets designated as such in
Section 2.11(a).
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in each such
case, designated as a "regular interest" in REMIC II. The REMIC II Regular
Interests have the designations and terms provided for in Section 2.11.
"REMIC II Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.11(f).
"REMIC III": The segregated pool of assets designated as such in
Section 2.13(a).
"REMIC III Certificate": Any of the Certificates designated as such
in Section 2.08.
"REMIC Pool": Any of REMIC I, REMIC II, REMIC III and the three Loan
REMICs.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC Sub-Account": A sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and REMIC I (or any Loan REMIC), but not an asset of
either Grantor Trust Pool.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16(b) on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled "GMAC
Commercial Mortgage Corporation [or the name of any successor Special Servicer],
as Special Servicer, in trust for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-CG3".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
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"REO Extension": As defined in Section 3.16(a).
"REO Mortgage Loan": The mortgage loan deemed for purposes hereof to
be outstanding with respect to each REO Property. Each REO Mortgage Loan shall
be deemed to provide for monthly payments of principal and/or interest equal to
its Assumed Monthly Payment and otherwise to have the same terms and conditions
as its predecessor Mortgage Loan (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan or the Trust's
acquisition of the subject REO Property). Each REO Mortgage Loan shall be deemed
to have an initial unpaid principal balance and Stated Principal Balance equal
to the unpaid principal balance and Stated Principal Balance, respectively, of
its predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Monthly Payments (other than any Balloon Payment), Assumed Monthly Payments (in
the case of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment) and other amounts due and owing, or deemed to be due and owing, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, shall be deemed to continue to be due and owing in respect of an
REO Mortgage Loan. In addition, all amounts payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including any unpaid or unreimbursed Servicing Fees and Advances
(together with any related unpaid Advance Interest), shall continue to be
payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to the Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent, as the case may be, in respect of an REO Mortgage Loan.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trust for the benefit of the Certificateholders
through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially in the form and
containing the information described in Exhibit E-9 attached hereto, including,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Determination Date immediately preceding the
preparation of such report, among other things, (i) the Acquisition Date of such
REO Property, (ii) the amount of income collected with respect to such REO
Property (net of related expenses) and other amounts, if any, received on such
REO Property during the related Collection Period and (iii) the value of the REO
Property based on the most recent appraisal or other valuation thereof available
to the Special Servicer as of such Determination Date (including any valuation
prepared internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Replacement Mortgage Loan": Any mortgage loan that is substituted
by GECA, Column or Union Capital for a Deleted Mortgage Loan as contemplated by
Section 2.03.
"Request for Release": A request signed by a Servicing Officer of,
as applicable, the Master Servicer in the form of Exhibit D-1 attached hereto or
the Special Servicer in the form of Exhibit D-2 attached hereto.
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"Required Appraisal Loan": As defined in Section 3.19(c).
"Reserve Account": Any of the accounts established and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on behalf of the
mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Residual Interest Certificate": Any of the Certificates designated
as such in Section 2.08.
"Responsible Officer": When used with respect to the Trustee, the
President, the Treasurer, the Secretary, any Vice President, any Assistant Vice
President, any Trust Officer, any Assistant Secretary or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and having direct responsibility for the
administration of this Agreement. When used with respect to any Fiscal Agent or
any Certificate Registrar (other than the Trustee), any officer or assistant
officer thereof.
"Restricted Servicer Reports": Each of the Watch List, the Operating
Statement Analysis Report, the NOI Adjustment Worksheet and the Comparative
Financial Status Report.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any of the Certificates designated as such in
Section 2.08.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate of the Class Principal Balances of
the Class A-1A Certificates and the Class A-1B Certificates outstanding
immediately prior thereto equals or exceeds the sum of (a) the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date, plus (b) the lesser of (i) the Principal
Distribution Amount for such Distribution Date and (ii) the portion of the
Available Distribution Amount for such Distribution Date that will remain after
all distributions of Distributable Certificate Interest to be made on the Senior
Certificates on such Distribution Date have been so made.
"Servicer Fee Amount": With respect to each Sub-Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the principal balance
of such Mortgage Loan as of the end of the immediately preceding Collection
Period and (b) the per annum servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan. With respect to the initial
Master Servicer and any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan, (a) the principal balance of
such Mortgage Loan as of the end of the immediately preceding Collection Period
and (b) the excess, if any, of the Master Servicing Fee Rate for such Mortgage
Loan over the per annum servicing fee rate (if any) applicable to such Mortgage
Loan as specified in any Sub-Servicing Agreement related to such Mortgage Loan.
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"Servicing Account": Any of the accounts established and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses paid or to be paid, as the context requires,
out of its own funds, by the Master Servicer or the Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection with the servicing of
a Mortgage Loan after a default, delinquency or other unanticipated event, or in
connection with the administration of any REO Property, including (1) any such
costs and expenses associated with (a) compliance with the obligations of the
Master Servicer and/or the Special Servicer set forth in Sections 2.02(e),
2.03(b), 2.03(c), 3.03(c) and 3.09, (b) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, including the
cost of any "force placed" insurance policy purchased by the Master Servicer or
the Special Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the Master Servicer or the Special Servicer is required
to cause to be insured pursuant to Section 3.07(a), (c) obtaining any
Liquidation Proceeds or Insurance Proceeds in respect of any such Mortgage Loan
or any REO Property, (d) any enforcement or judicial proceedings with respect to
any such Mortgage Loan, including foreclosures and similar proceedings, (e) the
operation, management, maintenance and liquidation of any REO Property, (f)
obtaining any Appraisal required to be obtained hereunder, and (g) UCC filings
(to the extent that the costs thereof are not reimbursed by the related
Borrower), (2) the reasonable and direct out-of-pocket travel expenses incurred
by the Special Servicer in connection with performing inspections pursuant to
Section 3.12(a), (3) the cost of any Opinion of Counsel expressly required to be
obtained hereunder in connection with the servicing of any particular Mortgage
Loan, to the extent that the related Borrower fails to pay the costs thereof,
and (4) any other expenditure which is expressly designated as a Servicing
Advance herein; provided that notwithstanding anything to the contrary,
"Servicing Advances" shall not include (A) allocable overhead of the Master
Servicer or the Special Servicer, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses, or (B) costs incurred by either such
party or any Affiliate thereof in connection with its purchase of any Mortgage
Loan or REO Property pursuant to any provision of this Agreement.
"Servicing Fees": With respect to any Mortgage Loan, the Master
Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File, but including any correspondence file) in the
possession of the Master Servicer or the Special Servicer and relating to the
origination and servicing of any Mortgage Loan or the administration of any REO
Property.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time by
the Master Servicer or the Special Servicer, as applicable.
"Servicing Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
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"Servicing Return Date": With respect to any Corrected Mortgage
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer, subject to applicable law and the express terms of the
relevant Mortgage Loans, to service and administer the Mortgage Loans and REO
Properties for which it is responsible hereunder: (a) with the same care, skill
and diligence as is normal and usual in its general mortgage servicing and REO
property management activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans and REO properties
that are comparable to those for which it is responsible hereunder; (b) with a
view to the timely collection of all scheduled payments of principal and
interest under the Mortgage Loans, the full collection of all Prepayment
Premiums and Yield Maintenance Charges that may become payable under the
Mortgage Loans and, in the case of the Special Servicer, if a Mortgage Loan
comes into and continues in default and if, in the good faith and reasonable
judgment of the Special Servicer, no satisfactory arrangements can be made for
the collection of the delinquent payments (including payments of Prepayment
Premiums and Yield Maintenance Charges), the maximization of the recovery on
such Mortgage Loan to the Certificateholders (as a collective whole) on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the related
Mortgage Rate); and (c) without regard to: (i) any known relationship that the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, may have with the related Borrower or
with any other party to this Agreement; (ii) the ownership of any Certificate by
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be; (iii) any obligation of the Master
Servicer or the Special Servicer, as the case may be, to make Advances; (iv) the
right of the Master Servicer (or any Affiliate thereof) or the Special Servicer
(or any Affiliate thereof), as the case may be, to receive reimbursement of
costs, or the sufficiency of any compensation payable to it, hereunder or with
respect to any particular transaction; (v) any ownership by the Master Servicer
(or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof),
as the case may be, of any other mortgage loans or real property or of the right
to service or manage for others any other mortgage loans or real property; and
(vi) any obligation of the Master Servicer (or any Affiliate thereof) or, if
ever applicable, the Special Servicer (or any Affiliate thereof), as the case
may be, as a Mortgage Loan Seller, to pay any indemnity or cure any Document
Defect or Breach with respect to, or to repurchase or replace, any Mortgage
Loan.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (i) of the
definition of "Specially Serviced Mortgage Loan".
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events has occurred:
(a) the related Borrower has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment
required under the related Mortgage Note or the related
Mortgage(s), which failure continues, or the Master Servicer
determines, in its reasonable, good faith judgment, will
continue, unremedied for 60 days; or
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(b) if the Master Servicer or any of its Affiliates then owns a
material economic interest in the related Borrower, the
related Borrower has failed to make when due any Monthly
Payment (including a Balloon Payment), which failure continues
unremedied as of the P&I Advance Date for the Distribution
Date related to the Collection Period in which such Monthly
Payment was due; or
(c) the Master Servicer has determined, in its reasonable, good
faith judgment, that a default in making a Monthly Payment
(including a Balloon Payment) or any other material payment
required under the related Mortgage Note or the related
Mortgage(s) is likely to occur within 30 days and either (i)
the related Borrower has requested a material modification of
the related Mortgage Loan (other than a waiver of a
"due-on-sale" clause permitted under Section 3.08) or (ii)
such default is likely to remain unremedied for at least 60
days; or
(d) the Master Servicer has determined, in its reasonable, good
faith judgment, that a default, other than as described in
clause (a) or (b) above, has occurred that may materially
impair the value of the related Mortgaged Property as security
for the Mortgage Loan, which default has continued unremedied
for the applicable cure period under the terms of the Mortgage
Loan (or, if no cure period is specified, for 60 days); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary action against the related Borrower under any
present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall
have been entered against the related Borrower and such decree
or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(f) the related Borrower shall have consented to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to such Borrower or of or
relating to all or substantially all of its property; or
(g) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed
a petition to take advantage of any applicable insolvency or
reorganization statute, made an assignment for the benefit of
its creditors, or voluntarily suspended payment of its
obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with
respect to the related Mortgaged Property or Properties; or
(i) in the case of the CTL Loan, the Master Servicer determines,
in accordance with the Servicing Standard, that a material
default has occurred under the Credit Lease and such default
has continued unremedied for 60 days;
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provided, however, that a Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property or, so long
as at such time no circumstance identified in clauses (a) through (i) above
exists that would cause the Mortgage Loan to continue to be characterized as a
Specially Serviced Mortgage Loan:
(w) with respect to the circumstances described in clauses (a) and
(b) above, if and when the related Borrower has made three
consecutive full and timely Monthly Payments under the terms
of such Mortgage Loan (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding
involving the related Borrower or by reason of a modification,
waiver or amendment granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (c),
(e), (f) and (g) above, if and when such circumstances cease
to exist in the reasonable, good faith judgment of the Special
Servicer;
(y) with respect to the circumstances described in clauses (d) and
(i) above, if and when such default is cured in the
reasonable, good faith judgment of the Special Servicer; and
(z) with respect to the circumstances described in clause (h)
above, if and when such proceedings are terminated.
"Special Servicer": GMAC Commercial Mortgage Corporation or its
successor in interest, in its capacity as special servicer hereunder, or any
successor Special Servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan, the fee designated as such and payable
to the Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"Startup Day": With respect to each REMIC Pool, the day designated
as such in Section 2.09(a) (in the case of REMIC I), Section 2.11(a) (in the
case of REMIC II), Section 2.13(a) (in the case of REMIC III), or the related
Loan REMIC Declaration (in the case of any Loan REMIC), as applicable.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the related Mortgage Note (as in effect on the Closing Date
or, in the case of a Replacement Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the Special Servicer pursuant to Section 3.20 and,
in the case of an ARD Loan, without regard to its Anticipated Repayment Date.
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"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Mortgage Loan), a principal balance which (a) initially shall
equal the Cut-off Date Balance of such Mortgage Loan (or, in the case of any
Replacement Mortgage Loan, the unpaid principal balance thereof as of the
related date of substitution, after application of all payments of principal due
thereon on or before such date, whether or not received), and (b) shall be
permanently reduced on each subsequent Distribution Date (to not less than zero)
by (i) that portion, if any, of the Principal Distribution Amount for such
Distribution Date allocable to such Mortgage Loan (or successor REO Mortgage
Loan), and (ii) the principal portion of any Realized Loss incurred in respect
of such Mortgage Loan (or successor REO Mortgage Loan) during the related
Collection Period; provided that, if a Liquidation Event occurs in respect of
any Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Mortgage Loan, as the case may be, shall be
zero commencing as of the Distribution Date in the Collection Period next
following the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any of the Certificates designated as
such in Section 2.08.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": In connection with the substitution
of one or more Replacement Mortgage Loans for any Deleted Mortgage Loan, the
amount, if any, by which the Purchase Price for such Deleted Mortgage Loan
(calculated as if it were to be repurchased, instead of replaced, on the
relevant date of substitution), exceeds the initial Stated Principal Balance or
the initial aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s).
"Successful Bidder": As defined in Section 7.01(c).
"Tax Administrator": Any tax administrator appointed pursuant to
Section 10.03 (or, in the absence of any such appointment, the Trustee).
"Tax Matters Person": With respect to any REMIC Pool, the Person
designated as the "tax matters person" of such REMIC Pool in the manner provided
under Treasury regulation section 1.860F-4(d) and temporary Treasury regulation
section 301.6231(a)(7)-1T, which Person shall, pursuant to Section 10.01(b), be
the Plurality Residual Interest Certificateholder in respect of the related
class of Residual Interest Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holder of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each REMIC Pool due to its classification as a REMIC under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
under any applicable provisions of federal tax law or any other governmental
taxing authority under applicable state or local tax laws.
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"Termination Price": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Treasury Rate": As defined in Section 4.01(b).
"Trust": The trust created hereby.
"Trustee": Norwest Bank Minnesota, National Association or its
successor in interest, in its capacity as trustee hereunder, or any successor
trustee appointed as herein provided.
"Trustee Report": As defined in Section 4.02(a).
"Trustee's Fee": With respect to any Mortgage Loan or REO Mortgage
Loan, the fee designated as such and payable to the Trustee pursuant to Section
8.05(a).
"Trustee's Fee Rate": 0.002% per annum.
"Trust Fund": Collectively, all of the assets of all the REMIC Pools
and Grantor Trust Pools.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": The interest accrued from time to
time in respect of any REMIC I Regular Interest (calculated in accordance with
Section 2.09(g) hereof) or any REMIC II Regular Interest (calculated in
accordance with Section 2.11(g) hereof).
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, an amount of interest equal to all
Uncertificated Accrued Interest in respect of such REMIC I Regular Interest for
the related Interest Accrual Period, reduced (to not less than zero) by that
portion, if any, of any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date that is allocable to the related Mortgage Loan; and, with
respect to any REMIC II Regular Interest, for any Distribution Date, an amount
of interest equal to all Uncertificated Accrued Interest in respect of such
REMIC II Regular Interest for the related Interest Accrual Period, reduced (to
not less than zero) by the product of (i) any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date, multiplied by (ii) a fraction, expressed
as a decimal, the numerator of which is the Uncertificated Accrued Interest in
respect
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of such REMIC II Regular Interest for the related Interest Accrual Period, and
the denominator of which is the aggregate Uncertificated Accrued Interest in
respect of all the REMIC II Regular Interests for the related Interest Accrual
Period.
"Uncertificated Principal Balance": The principal balance
outstanding from time to time of any REMIC I Regular Interest (calculated in
accordance with Section 2.09(e) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.11(e) hereof).
"Underwriter": DLJSC.
"Union Capital": Union Capital Investments, LLC or its successor in
interest.
"Union Capital Agreement": With respect to each Mortgage Loan
originated by Union Capital, the Seller's Warranty Certificate dated as of
October 5, 1999, executed and delivered by Union Capital in favor of DLJ
Mortgage Capital, Inc., the form of which is attached hereto as Exhibit N.
"United States Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust
(or, to the extent provided in the Treasury regulations, a trust if it was in
existence on August 20, 1996 and it elected to be treated as a United States
Person), all within the meaning of Section 7701(a)(30) of the Code.
"Unreimbursed Principal Balance Reduction": Any Principal Balance
Reduction made with respect to a Class of Principal Balance Certificates, a
REMIC II Regular Interest or a REMIC I Regular Interest for which no
distribution or deemed distribution of reimbursement has been made pursuant to
Section 4.01(a), Section 4.01(i) or Section 4.01(j), as applicable.
"Unrestricted Servicer Reports": Each of the Delinquent Loan Status
Report, the Historical Loan Modification Report, the Historical Loss Estimate
Report, the REO Status Report, the CMSA Loan Periodic Update File, the CMSA
Property File and the CMSA Loan Set-Up File.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Classes of Principal Balance
Certificates in proportion to their respective Class Principal Balances, and
1.0% of the Voting Rights shall be allocated to the Class S Certificates. Voting
Rights allocated to a particular Class of Certificates shall be allocated among
such Certificates in proportion to the respective Percentage Interests evidenced
thereby.
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"Warranting Party": As defined in Section 2.03(a).
"Watch List": For any Determination Date, a report (substantially in
the form of Exhibit E-10) of all Mortgage Loans that constitute one of the
following types of Mortgage Loans as of such Determination Date (the "Watch
List"): (i) a Mortgage Loan that has a then current Debt Service Coverage Ratio
that is less than 1.10x; (ii) a Mortgage Loan as to which any required
inspection of the related Mortgaged Property conducted by the Master Servicer
indicates a problem that the Master Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property; (iii) a Mortgage Loan as to which the Master Servicer has
actual knowledge of material damage or waste at the related Mortgaged Property;
(iv) a Mortgage Loan as to which it has come to the Master Servicer's attention
in the performance of its duties under this Agreement (without any expansion of
such duties by reason thereof) that any tenant occupying 25% or more of the
space in the related Mortgaged Property (A) has vacated such space (without
being replaced by a comparable tenant and lease) or (B) has declared bankruptcy;
(v) a Mortgage Loan that is at least 30 days delinquent in payment; and (vi) a
Mortgage Loan that is within 60 days of maturity. No later than one Business Day
after each Determination Date, the Special Servicer shall provide the Master
Servicer with any information in its possession regarding the Specially Serviced
Mortgage Loans necessary for preparation of the Watch List that is not in the
possession of the Master Servicer.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.0%.
"Year 2000 Ready": With respect to any Person, all computers,
hardware, imbedded microchips, software and material date-affected technology
used in such Person's business operations are able to correctly and effectively
store, process and otherwise deal with date data from, into, between and
otherwise concerning the 20th and 21st centuries, and otherwise continue to
function properly and unimpaired with respect to all calendar dates falling on
or after January 1, 2000.
"Yield Maintenance Certificates": The Class A-1A, Class A-1B, Class
A-1C, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1 and Class B-2
Certificates.
"Yield Maintenance Charge": With respect to any Mortgage Loan, any
premium, penalty or fee paid or payable, as the context requires, by a Borrower
in connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan, other than any Prepayment Premium.
"Yonkers Shopping Center Mortgage Loan": The Mortgage Loan secured
by the Mortgaged Property identified on the Mortgage Loan Schedule as the
Yonkers Shopping Center
"Yonkers Shopping Center REMIC": The segregated pool of assets
designated as such in the Yonkers Shopping Center REMIC Declaration.
"Yonkers Shopping Center REMIC Declaration": The REMIC Declaration
dated as of September 23, 1999 with respect to the assets of the Yonkers
Shopping Center REMIC.
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"Yonkers Shopping Center REMIC Regular Interest": The uncertificated
"regular interest", within the meaning of Section 860G(a)(1) of the Code, in the
Yonkers Shopping Center REMIC issued pursuant to the Yonkers Shopping Center
REMIC Declaration. The principal balance of the Yonkers Shopping Center REMIC
Regular Interest shall equal the principal balance of the Yonkers Shopping
Center Mortgage Loan or any related Replacement Mortgage Loan (or, if
applicable, the deemed principal balance of any successor REO Mortgage Loan)
outstanding from time to time. Payments and other collections of amounts
received on or in respect of the Yonkers Shopping Center Mortgage Loan or any
related Replacement Mortgage Loan (or any related REO Property) and allocable
(in accordance with Section 1.03) to interest (adjusted to the related Loan
REMIC Remittance Rate) on, principal of and/or Prepayment Premiums or Yield
Maintenance Charges in respect of such Original Mortgage Loan or any related
Replacement Mortgage Loan (or any successor REO Mortgage Loan) shall be deemed
paid on the Yonkers Shopping Center REMIC Regular Interest to REMIC I at the
time such amounts are so received; provided that any Additional Interest
collected on the related Mortgage Loan (or any successor REO Mortgage Loan)
shall not be an asset of the Yonkers Shopping Center REMIC. The terms of the
Yonkers Shopping Center REMIC Regular Interest are otherwise set forth in the
related Loan REMIC Declaration.
"Yonkers Shopping Center REMIC Residual Interest": The sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in the Yonkers Shopping Center REMIC issued pursuant to the Yonkers
Shopping Center REMIC Declaration.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles as in effect from time to time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision;
(vi) "or" is not exclusive; and
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(vii) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Cross-Collateralized
Group in the form of payments from Borrowers, Insurance Proceeds and Liquidation
Proceeds, shall be applied by the Master Servicer among the Mortgage Loans
constituting such Cross-Collateralized Group in accordance with the express
provisions of the related loan documents and, in the absence of such express
provisions, on a pro rata basis in accordance with the respective amounts then
"due and owing" as to each such Mortgage Loan. All amounts collected in respect
of or allocable to any particular Mortgage Loan (whether or not such Mortgage
Loan constitutes part of a Cross-Collateralized Group) in the form of payments
from Borrowers, Liquidation Proceeds or Insurance Proceeds shall be applied to
amounts due and owing under the related Mortgage Note and Mortgage (including
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related Mortgage Note and Mortgage and, in the absence of such
express provisions or if and to the extent that such terms authorize the lender
to use its discretion, shall be applied for purposes of this Agreement: first,
as a recovery of any related and unreimbursed Servicing Advances and, if
applicable, unpaid Liquidation Expenses; second, as a recovery of accrued and
unpaid interest on such Mortgage Loan to, but not including, the date of receipt
(or, in the case of a full Monthly Payment from any Borrower, through the
related Due Date), exclusive, however, of any portion of such accrued and unpaid
interest that constitutes Default Interest or, in the case of an ARD Loan after
its Anticipated Repayment Date, that constitutes Additional Interest; third, as
a recovery of principal of such Mortgage Loan then due and owing, including by
reason of acceleration of the Mortgage Loan following a default thereunder (or,
if a Liquidation Event has occurred in respect of such Mortgage Loan, as a
recovery of principal to the extent of its entire remaining unpaid principal
balance); fourth, unless a Liquidation Event has occurred in respect of such
Mortgage Loan, as a recovery of amounts to be currently applied to the payment
of, or escrowed for the future payment of, real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items; fifth,
unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a
recovery of Reserve Funds to the extent then required to be held in escrow;
sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then
due and owing under such Mortgage Loan; seventh, as a recovery of any Default
Charges then due and owing under such Mortgage Loan; eighth, as a recovery of
any assumption fees and modification fees then due and owing under such Mortgage
Loan; ninth, as a recovery of any other amounts then due and owing under such
Mortgage Loan other than remaining unpaid principal and, in the case of an ARD
Loan after its Anticipated Repayment Date, other than Additional Interest;
tenth, as a recovery of any remaining principal of such Mortgage Loan to the
extent of its entire remaining unpaid principal balance; and, eleventh, in the
case of an ARD Loan after its Anticipated Repayment Date, as a recovery of
accrued and unpaid Additional Interest on such ARD Loan to but not including the
date of receipt.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be treated: first, as a
recovery of any related and unreimbursed Servicing Advances and, if applicable,
unpaid Liquidation Expenses; second, as a recovery of accrued and unpaid
interest on the related REO Mortgage Loan to, but not including, the Due Date in
the Collection Period of receipt, exclusive, however, of any portion of such
accrued and unpaid interest that constitutes Default Interest or, in the case of
an REO Mortgage Loan that relates to an ARD Loan after its Anticipated Repayment
Date, that constitutes Additional Interest; third, as a recovery of principal of
the related REO Mortgage Loan to the extent of its
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entire unpaid principal balance; fourth, as a recovery of any Prepayment Premium
or Yield Maintenance Charge deemed to be due and owing in respect of the related
REO Mortgage Loan; fifth, as a recovery of any other amounts deemed to be due
and owing in respect of the related REO Mortgage Loan (other than, in the case
of an REO Mortgage Loan that relates to an ARD Loan after its Anticipated
Repayment Date, accrued and unpaid Additional Interest); and sixth, in the case
of an REO Mortgage Loan that relates to an ARD Loan after its Anticipated
Repayment Date, any accrued and unpaid Additional Interest.
(c) For the purposes of this Agreement, Additional Interest on an
ARD Loan or a successor REO Mortgage Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan or successor REO Mortgage
Loan, notwithstanding that the terms of the related loan documents so permit. To
the extent any Additional Interest is not paid on a current basis, it shall be
deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Mortgage Loan, as the case may be, that constitute
Additional Master Servicing Compensation payable to the Master Servicer and/or
Additional Special Servicing Compensation payable to the Special Servicer, are
insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Master Servicer, on the one hand, and such of those fees and charges as are
payable to the Special Servicer, on the other, pro rata in accordance with their
respective entitlements.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including each of the defined terms
set forth in Section 1.01, shall be interpreted in a manner consistent with this
Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and, further, that such trust be
designated as "DLJ Commercial Mortgage Trust 1999-CG3". Norwest Bank Minnesota,
National Association is hereby appointed, and does hereby agree, to act as
Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the
exclusive use and benefit of all present and future Certificateholders. It is
not intended that this Agreement create a partnership or a joint-stock
association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby sell, assign, transfer and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders, all the right, title
and interest of the Depositor in, to and under (i) the Original Mortgage Loans,
and all payments under and proceeds of such Mortgage Loans received after the
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date), together with all documents included in the related
Mortgage Files and any related Additional Collateral; (ii) any REO Property
acquired in respect of any such Mortgage Loan; (iii) such funds or assets as
from time to time are deposited in the Collection Account, the Distribution
Account, the Interest Reserve Account, the Gain on Sale Reserve Fund and, if
established, the REO Account; (iv) Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and,
to the extent related to the foregoing and applicable, under Sections 9, 10, 13,
14, 15, 16, 17 and 19) of each Mortgage Loan Purchase and Sale Agreement, (v)
the Union Capital Agreement (insofar as such right, title and interest was
assigned to the Depositor under the Column Mortgage Loan Purchase and Sale
Agreement); (vi) the Loan REMIC Interests and the Loan REMIC Declarations; and
(vii) all other assets included or to be included in the Trust Fund. This
conveyance is subject to the right of the Designated Sub-Servicers to primary
service certain of the Original Mortgage Loans pursuant to the Designated
Sub-Servicer Agreements (and, in the case of the Gold Ridge Apartments Mortgage
Loan, the Regency Apartments Mortgage Loan and the Yonkers Shopping Center
Mortgage Loan, the related Loan REMIC Declarations).
(c) The conveyance of the Mortgage Loans (and, in the case of the
Gold Ridge Apartments Mortgage Loan, the Regency Apartments Mortgage Loan and
the Yonkers Shopping Center Mortgage Loan, the related Loan REMIC Interests) and
the related rights and property accomplished hereby is absolute and is intended
by the parties hereto to constitute an absolute transfer of such Mortgage Loans,
such Loan REMIC Interests and such other related rights and property by the
Depositor to the Trustee for the benefit of the Certificateholders. Furthermore,
it is not intended that such conveyance be deemed a pledge of security for a
loan. If such conveyance is deemed to be a pledge of security for a loan,
however, the Depositor intends that the rights and obligations of the parties to
such loan shall be established pursuant to the terms of this Agreement. The
Depositor also intends and agrees that, in such event, (i) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in all of the Depositor's right, title and interest in and to
the assets constituting the Trust Fund, including the Mortgage Loans and Loan
REMIC Interests
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subject hereto from time to time, all principal and interest received on or with
respect to such Mortgage Loans and Loan REMIC Interests after the Closing Date
(other than scheduled payments of interest and principal due and payable on such
Mortgage Loans and Loan REMIC Interests on or prior to the Cut-off Date or, in
the case of a Replacement Mortgage Loan, on or prior to the related date of
substitution), all amounts held from time to time in the Collection Account, the
Distribution Account, the Interest Reserve Account, the Gain on Sale Reserve
Fund and, if established, the REO Account and all reinvestment earnings on such
amounts, and all of the Depositor's right, title and interest under Sections 2,
3(a), 3(b), 3(d), 4 and 12 (and, to the extent related to the foregoing, under
Sections 9, 10, 13, 14, 15, 16, 17 and 19) of each Mortgage Loan Purchase
Agreement and under the Union Capital Agreement (insofar as, in the case of the
Union Capital Agreement, such right, title and interest was assigned to the
Depositor under the Column Mortgage Loan Purchase Agreement), (iii) the
possession by the Trustee or its agent of the Mortgage Notes with respect to the
Mortgage Loans and the Loan REMIC Interests subject hereto from time to time and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor shall file or cause
to be filed, as a precautionary filing, a Form UCC-1 substantially in the form
attached as Exhibit J hereto in all appropriate locations in the State of New
York promptly following the initial issuance of the Certificates, and the Master
Servicer shall prepare and file at each such office, and the Trustee shall
execute, continuation statements with respect thereto, in each case within six
months prior to the fifth anniversary of the immediately preceding filing. The
Depositor shall cooperate in a reasonable manner with the Trustee and the Master
Servicer in preparing and filing such continuation statements. This Section
2.01(c) shall constitute notice to the Trustee pursuant to any requirements of
the UCC in effect in New York.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
requested the Mortgage Loan Sellers, pursuant to their respective Mortgage Loan
Purchase Agreements, to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed thereby, on or before
the Closing Date, the Mortgage File and any Additional Collateral (other than
Reserve Funds) for each Original Mortgage Loan so assigned; provided that if, as
to any Mortgage Loan, there shall not have been delivered the original or a copy
of the related lender's title insurance policy referred to in the definition of
"Mortgage File" solely because such policy has not yet been issued, the delivery
obligations of the related Mortgage Loan Seller and, in the case of any Column
Third Party Mortgage Loan, Union Capital as contemplated by this Article shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, so long as (i)
GECA, Column or Union Capital, as applicable, shall have delivered to the
Trustee on or before the Closing Date a pro forma title policy or a commitment
for title insurance "marked-up" at the closing of such Mortgage Loan, and (ii)
as of the date that is 180 days following the Closing Date, GECA, Column or
Union Capital, as applicable, has delivered to the Trustee or a Custodian
appointed thereby the original related lender's title insurance policy. The
Depositor shall deliver to the Trustee on or before the Closing Date a fully
executed counterpart of each Mortgage Loan Purchase and Sale Agreement and the
Union Capital Agreement.
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Also in connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor shall deliver to and deposit with, or cause
to be delivered to and deposited with, the Trustee or a Custodian appointed
thereby, on or before the Closing Date, the originals or copies of the Loan
REMIC Declarations.
(e) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary) and cause to be submitted for
recording or filing, as the case may be, in the appropriate office for real
property records or UCC Financing Statements, as applicable, each assignment of
Mortgage and assignment of Assignment of Leases in favor of the Trustee referred
to in clauses (iv) and (v) of the definition of "Mortgage File" that has been
received by the Trustee or a Custodian on its behalf and each UCC-2 and UCC-3 in
favor of the Trustee referred to in clause (viii) of the definition of "Mortgage
File" that has been received by the Trustee or a Custodian on its behalf. Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-2 and UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee following
filing; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases the Trustee shall obtain therefrom a certified copy of the recorded
original. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the related Mortgage Loan Seller to prepare or cause to be prepared
promptly, pursuant to the related Mortgage Loan Purchase and Sale Agreement, a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall, upon receipt thereof, cause the same to be duly recorded or
filed, as appropriate. The Depositor shall be responsible for paying the fees
and expenses of the Trustee in connection with the foregoing, as more
particularly provided for in that separate letter agreement dated September 1,
1999, between the Depositor and the Trustee.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
requested the Mortgage Loan Sellers, pursuant to their respective Mortgage Loan
Purchase Agreements, to deliver to and deposit with, or cause to be delivered to
and deposited with, the Master Servicer, on or before the Closing Date, the
following items: (i) originals or copies of all financial statements,
appraisals, environmental/engineering reports, leases, rent rolls and tenant
estoppels in the possession or under the control of the particular Mortgage Loan
Seller that relate to the Original Mortgage Loans and, to the extent they are
not required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the particular Mortgage Loan Seller that were
delivered by or on behalf of the related Borrowers in connection with the
origination of the Original Mortgage Loans; and (ii) all unapplied Reserve Funds
and Escrow Payments in respect of the Original Mortgage Loans. The Master
Servicer shall hold all such documents, records and funds on behalf of the
Trustee in trust for the benefit of the Certificateholders.
Also in connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor shall deliver to and deposit with, or cause
to be delivered to and deposited with, the Master Servicer, on or before the
Closing Date, the original or a copy of any Group Environmental Insurance
Policy.
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SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the
Trustee, by its execution and delivery of this Agreement, hereby accepts
receipt, directly or through a Custodian on its behalf, of (i) the Original
Mortgage Loans and all documents delivered to it that constitute portions of the
related Mortgage Files, (ii) the Loan REMIC Interests, and (iii) all other
assets delivered to it and included in the Trust Fund, in good faith and without
notice of any adverse claim, and declares that it or a Custodian on its behalf
holds and will hold such documents and any other documents received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Original Mortgage Loans, the Loan REMIC Interests and such other assets,
together with any other Mortgage Loans and assets subsequently delivered to it
that are to be included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee or such
Custodian shall hold any Letter of Credit in a custodial capacity only and shall
have no obligation to maintain, extend the term of, enforce or otherwise pursue
any rights under such Letter of Credit. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, the Mortgage Loan
Sellers and the Underwriter that, as to each Original Mortgage Loan, except as
specifically identified in the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Exhibit B-2, (i) the original Mortgage Note specified in
clause (i) of the definition of "Mortgage File" and all allonges thereto, if
any, are in its possession or the possession of a Custodian on its behalf, and
(ii) such Mortgage Note has been reviewed by it or by such Custodian on its
behalf and (A) appears regular on its face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appears to have been executed and (C) purports to relate to such Mortgage
Loan.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earliest of (i) the date on which such exceptions are
eliminated, (ii) the date on which all the affected Mortgage Loans are removed
from the Trust Fund and (iii) the second anniversary of the Closing Date), the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Original Mortgage Loan, and the Trustee
shall, subject to Sections 1.04, 2.01(d), 2.02(c) and 2.02(d), certify in
writing (substantially in the form of Exhibit B-3) to each of the other parties
hereto, the Mortgage Loan Sellers and the Underwriter that, as to each Original
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification): (i) the original
Mortgage Note specified in clause (i) of the definition of "Mortgage File" (or,
if such original Mortgage Note has been lost, a copy of such Mortgage Note,
together with a "lost note affidavit" certifying that the original of such
Mortgage Note has been lost), the original or copy of each recorded document
specified in clauses (ii) through (v) of the definition of "Mortgage File", and
the original or copy of the policy of title insurance specified in clause (vii)
of the definition of "Mortgage File" and each document specified in clause
(viii) of the definition of "Mortgage File" (without regard to the
parenthetical), is in its possession or the possession of a Custodian on its
behalf; (ii) if such report is due after April 1, 2000, the recordation/filing
contemplated by Section 2.01(e) has been completed (based solely on receipt by
the Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Borrower), (B) appear to have been executed
and (C) purport to relate to such Mortgage Loan; and (iv) based on the
examinations referred to in Section 2.02(a) above and this Section 2.02(b) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (ii) (other than
the zip code) and (vi)(B) of the definition of "Mortgage Loan Schedule"
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accurately reflects the information set forth in the Mortgage File. If GECA,
Column or Union Capital substitutes a Replacement Mortgage Loan for any Deleted
Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its
behalf shall review the documents delivered to it or such Custodian with respect
to such Replacement Mortgage Loan, and the Trustee shall deliver a comparable
certification in respect of such Replacement Mortgage Loan, on or about the 30th
day following the related date of substitution (and, if any exceptions are
noted, every 90 days thereafter for so long as any exceptions remain or until
such Replacement Mortgage Loan is removed from the Trust Fund).
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) In performing the reviews contemplated by subsections (a) and
(b) above, the Trustee may conclusively rely on the related Mortgage Loan Seller
as to the purported genuineness of any such document and any signature thereon.
It is understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), (vii) and (viii) of the definition of "Mortgage File" have been received
and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
(e) If any party hereto discovers, or receives notice from a
non-party, that any document constituting a part of a Mortgage File has not been
properly executed, is missing, contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule (and the terms of such document have not been modified by written
instrument contained in the Mortgage File), or does not appear to be regular on
its face (each, a "Document Defect"), then such party shall give prompt written
notice thereof to the other parties hereto, including (unless it is the party
that discovered the Document Defect) the Trustee. Upon the Trustee's discovery
or receipt of notice of any such Document Defect, the Trustee shall notify the
Master Servicer, the Controlling Class Representative, the Underwriter, the
related Mortgage Loan Seller and, in the case of a Column Third Party Mortgage
Loan, Union Capital. If such Document Defect materially and adversely affects
the value of any Mortgage Loan or the interests of the Certificateholders
therein (in which case such Document Defect shall constitute a "Material
Document Defect"), the Master Servicer (or, if the Mortgage Loan Seller of the
affected Mortgage Loan is an Affiliate of the Master Servicer, subject to
Section 8.02, the Trustee) shall, on behalf of the Trust, exercise such rights
and remedies as the Trust may have under the Mortgage Loan Purchase and Sale
Agreement or, in the case of any Column Third Party Mortgage Loan, under the
Union Capital Agreement with respect to such Document Defect in such manner as
it determines, in its good faith and reasonable judgment, is in the best
interests of the Certificateholders (taken as a collective whole), including
those contemplated by Section 2.03. A Material Document Defect shall constitute
a Material Breach of the representation and warranty set forth in Paragraph 39
of Exhibit C to each Mortgage Loan Purchase and Sale Agreement. Any and all
reasonable out-of-pocket expenses incurred by the Master Servicer (or, if
applicable, the Trustee) (including, without limitation, reasonable attorney
fees and expenses) with respect to the foregoing, together with any additional
out-of-pocket expenses reasonably incurred by the Master Servicer
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or Special Servicer in performing their respective servicing functions as a
result of a Document Defect, shall constitute Servicing Advances in respect of
the affected Mortgage Loan. Without limiting any of the foregoing, the absence
of an original Mortgage Note, an original or a copy of a Mortgage (with or
without evidence of recording thereon) or an original or a copy of a lender's
title insurance policy from a Mortgage File or any material nonconformity to the
Mortgage Loan Schedule of any such document or any material irregularity on the
face thereof (without the presence of any factor, such as the presence of a lost
note affidavit with an indemnity in the case of a missing Mortgage Note or the
presence of a pro forma title policy or a commitment for title insurance
"marked-up" at the closing of the subject Mortgage Loan, that in the Trustee's
reasonable discretion reasonably mitigates such absence, non-conformity or
irregularity) shall be a Material Document Defect. Furthermore, if either an
original or a copy of any of the documents referred to in clauses (ii) - (v) of
the definition of "Mortgage File", with evidence of recording indicated thereon,
has not been delivered to the Trustee or a Custodian on its behalf with respect
to any Mortgage Loan on or before the second anniversary of the Closing Date,
such failure shall constitute a Material Document Defect.
SECTION 2.03. Certain Repurchases and Substitutions of Mortgage
Loans by the Originators.
(a) If any party hereto or any Certificateholder discovers or, other
than pursuant to this Section 2.03(a), receives notice of a breach of any
representation or warranty relating to any Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement or, in the
case of a Column Third Party Mortgage Loan, the Union Capital Agreement (a
"Breach"), the party or Certificateholder discovering or receiving such notice
of such Breach shall (without making any determination of the materiality or
adverseness thereof) give prompt written notice thereof to the other parties
hereto, including (unless it is the party that discovered the Breach) the
Trustee, and the Trustee shall in turn (without making any determination of the
materiality or adverseness thereof) notify the Controlling Class Representative.
If such Breach materially and adversely affects the value of such Mortgage Loan
or the interests of the Certificateholders therein, then promptly upon its
becoming aware thereof the Master Servicer (or, if the Mortgage Loan Seller of
the affected Mortgage Loan is an Affiliate of the Master Servicer, subject to
Section 8.02, the Trustee) shall require that the Person (whether it is the
related Mortgage Loan Seller or, in the case of a Column Third Party Mortgage
Loan, Union Capital) that made the breached representation or warranty (in any
event, for purposes of this Section 2.03, the "Warranting Party"), not later
than 90 days (or such other period as is provided in the related Mortgage Loan
Purchase and Sale Agreement or, in the case of a Column Third Party Mortgage
Loan, the Union Capital Agreement, as applicable) from the receipt by such
Warranting Party of such notice, cure such Breach in all material respects or
repurchase the affected Mortgage Loan (as, if and to the extent required by the
related Mortgage Loan Purchase and Sale Agreement or, in the case of a Column
Third Party Mortgage Loan, the Union Capital Agreement, as applicable) at the
applicable Purchase Price (or, in the case of the repurchase of a Column Third
Party Mortgage Loan by Union Capital, at such other price as is provided for in
the Union Capital Agreement, with any shortfall between such price and the
applicable Purchase Price to be made up by Column as the related Mortgage Loan
Seller pursuant to the Column Mortgage Loan Purchase and Sale Agreement);
provided that if (i) such Breach does not relate to whether the affected
Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code, (ii) such Breach is capable of being cured but not within such
90-day (or other) period, (iii) such Warranting Party has commenced and is
diligently proceeding with the cure of such Breach within such 90-day (or other)
period, and (iv) such Warranting Party shall have delivered to the Trustee a
certification executed on behalf of such Warranting Party by an officer thereof
setting forth the reason that such Breach is not capable of being cured within
an initial 90-day (or other) period, specifying what actions such Warranting
Party is pursuing in connection with the cure thereof and stating that such
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Warranting Party anticipates that such Breach will be cured within an additional
period not to exceed 90 more days (a copy of which certification shall be
delivered by the Trustee to the Master Servicer, the Special Servicer and the
Controlling Class Representative), then such Warranting Party shall have an
additional 90 days to complete such cure (or, if it fails to complete such cure,
to repurchase the affected Mortgage Loan); and provided, further, that, in lieu
of effecting any such repurchase (but, in any event, no later than such
repurchase would have to have been completed), such Warranting Party shall be
permitted, during the three-month period following the Startup Day for the REMIC
Pool that holds the affected Mortgage Loan (or during the two-year period
following such Startup Day if the affected Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury regulation section 1.860G-2(f)), to replace the affected Mortgage Loan
with one or more Qualifying Substitute Mortgage Loans and to pay a cash amount
equal to the applicable Substitution Shortfall Amount (or, in the case of the
replacement of a Column Third Party Mortgage Loan by Union Capital, to pay such
other cash amount as is provided for in the Union Capital Agreement, with any
shortfall between such other cash amount and the applicable Substitution
Shortfall Amount to be made up by Column as the related Mortgage Loan Seller
pursuant to the Column Mortgage Loan Purchase and Sale Agreement), subject to
any other applicable terms and conditions of the related Mortgage Loan Purchase
and Sale Agreement or the Union Capital Agreement, as the case may be, and this
Agreement. If any substitution for a Deleted Mortgage Loan is not completed in
all respects by the end of the three-month (or, if applicable, the two-year)
period contemplated by the preceding sentence, the Warranting Party (whether it
is GECA, Column or Union Capital) that desired to effect such substitution shall
be barred from doing so (and, accordingly, will be limited to the
cure/repurchase remedies contemplated hereby), and no party hereto shall be
liable thereto for any loss, liability or expense resulting from the expiration
of such period. If any Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 2.03, the Master Servicer (or, if the Mortgage Loan
Seller of the affected Mortgage Loan is an Affiliate of the Master Servicer,
subject to Section 8.02, the Trustee) shall designate the Collection Account as
the account to which funds in the amount of the applicable Purchase Price or
Substitution Shortfall Amount (as the case may be) are to be wired, and the
Master Servicer shall promptly notify the Trustee when such deposit is made. Any
such repurchase or replacement of a Mortgage Loan shall be on a whole loan,
servicing released basis (subject to any rights of a Designated Sub-Servicer to
continue to sub-service the related Mortgage Loans as set forth in the related
Designated Sub-Servicer Agreement). Notwithstanding the foregoing, if there
exists in respect of any Column Third Party Mortgage Loan a Breach on the part
of Column under the Column Mortgage Loan Purchase and Sale Agreement (other than
a Breach of any of the representations and warranties of Column relating to or
affecting the status of the affected Mortgage Loan as a "qualified mortgage"
within the meaning of the REMIC Provisions) and a Breach on the part of Union
Capital under the Union Capital Agreement, and such Breaches give rise to a cure
or repurchase/substitution obligation under both the Column Mortgage Loan
Purchase and Sale Agreement and the Union Capital Agreement, then the Master
Servicer shall request Column to effect a cure of Column's Breach or to
repurchase or replace the affected Mortgage Loan only if Union Capital does not
do so within Union Capital's applicable cure/repurchase/substitution period, and
the cure/repurchase/substitution period for Column will be deemed not to
commence until such request is so made of Column; provided that such
cure/repurchase/substitution period for Column shall in no event extend more
than 90 days from the end of the cure/repurchase/substitution period for Union
Capital. It is hereby acknowledged and agreed that if any Breach or Document
Defect arises out of a failure to deliver a Mortgage Note for any Mortgage Loan,
such Breach or Document Defect, as the case may be, shall be cured for purposes
of this Agreement if the related Warranting Party delivers a copy of such
Mortgage Note, together with a "lost note affidavit" certifying that the
original of such Mortgage Note has been lost.
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If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by GECA, Column or
Union Capital as contemplated by this Section 2.03, then, prior to the subject
repurchase or substitution, the Master Servicer shall use its best efforts,
subject to the terms of the related Mortgage Loans, to prepare and, to the
extent necessary and appropriate, have executed by the related Borrower and
record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans therein, on the other hand, such that those two groups of
Mortgage Loans are each secured only by the Mortgaged Properties identified in
the Mortgage Loan Schedule as directly corresponding thereto; provided that no
such termination shall be effected unless and until the Master Servicer and the
Trustee have received from the Depositor, the related Mortgage Loan Seller or,
in the case of a Column Third Party Mortgage Loan, Union Capital (i) an Opinion
of Counsel to the effect that such termination will not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust Event
with respect to either Grantor Trust Pool and (ii) written confirmation from
each Rating Agency that such termination will not cause an Adverse Rating Event
to occur with respect to any Class of Rated Certificates. To the extent
necessary and appropriate, the Trustee shall execute (or, subject to Section
3.10, provide the Master Servicer with a limited power of attorney that enables
the Master Servicer to execute) the documentation referred to in the prior
sentence; provided that the Trustee shall not be liable for any misuse of any
such power of attorney by the Master Servicer. The Master Servicer shall advance
all costs and expenses incurred by the Trustee and the Master Servicer pursuant
to this paragraph, and such advances shall constitute and be reimbursable as
Servicing Advances. Neither the Master Servicer nor the Special Servicer shall
be liable to any Certificateholder or any other party hereto if the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph for any reason beyond the control of the
Master Servicer or Special Servicer, as the case may be.
Whenever one or more mortgage loans are substituted for a Deleted
Mortgage Loan as contemplated by this Section 2.03, the Master Servicer (or, if
the Mortgage Loan Seller of the Deleted Mortgage Loan is an Affiliate of the
Master Servicer, subject to Section 8.02, the Trustee) shall direct the
Warranting Party effecting the substitution to deliver the related Mortgage File
to the Trustee and to certify that such substitute mortgage loan satisfies or
such substitute mortgage loans satisfy, as the case may be, all of the
requirements of the definition of "Qualifying Substitute Mortgage Loan" and to
send such certification to the Trustee. No mortgage loan may be substituted for
a Deleted Mortgage Loan as contemplated by this Section 2.03 if the Mortgage
Loan to be replaced was itself a Replacement Mortgage Loan, in which case,
absent a cure of the relevant Breach or Document Defect, the affected Mortgage
Loan will be required to be repurchased as contemplated hereby. Monthly Payments
due with respect to each Replacement Mortgage Loan (if any) after the related
date of substitution, and Monthly Payments due with respect to each Deleted
Mortgage Loan (if any) after the Cut-off Date and on or prior to the related
date of substitution, shall be part of the Trust Fund. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) on or prior to the related
date of substitution, and Monthly Payments due with respect to each Deleted
Mortgage Loan (if any) after the related date of substitution, shall not be part
of the Trust Fund and are to be remitted by the Master Servicer to the
Warranting Party effecting the related substitution promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 2.03, the Master Servicer (or, if the Mortgage Loan
Seller of the Deleted Mortgage Loan is an Affiliate of the Master Servicer, the
Trustee) shall direct the related Mortgage Loan Seller to amend the Mortgage
Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s); and,
upon its receipt of such amended Mortgage Loan Schedule,
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the Master Servicer shall deliver or cause the delivery of such amended Mortgage
Loan Schedule to the other parties hereto. Upon any substitution of one or more
Replacement Mortgage Loans for a Deleted Mortgage Loan, such Replacement
Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms
of this Agreement in all respects. The reasonable "out-of-pocket" costs and
expenses incurred by the Master Servicer and/or the Trustee pursuant to this
Section 2.03 (including, without limitation, reasonable attorney fees and
expenses) shall constitute Servicing Advances.
In connection with any repurchase of the Gold Ridge Apartments
Mortgage Loan, the Regency Apartments Mortgage Loan or the Yonkers Shopping
Center Mortgage Loan pursuant to or as contemplated by this Section 2.03(a), the
Trustee shall effect a "qualified liquidation" of the related Loan REMIC in
accordance with the REMIC Provisions. Any Replacement Mortgage Loan substituted
for any such Mortgage Loan pursuant to or as contemplated by this Section
2.03(a) shall be an asset of the related Loan REMIC.
(b) Upon receipt of an Officer's Certificate from the Master
Servicer to the effect that the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage Loan
repurchased or replaced by GECA, Column or Union Capital as contemplated by this
Section 2.03 has been deposited in the Collection Account, and further, if
applicable, upon receipt of the Mortgage File for each Replacement Mortgage Loan
(if any) to be substituted for a Deleted Mortgage Loan, together with the
certification referred to in the penultimate paragraph of Section 2.03(a) from
the Warranting Party effecting the substitution, if any, the Trustee shall (i)
release or cause the release of the Mortgage File for the Deleted Mortgage Loan
to the Person effecting the repurchase/substitution or its designee and (ii)
execute and deliver such instruments of release, transfer and/or assignment, in
each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the Person effecting the repurchase/substitution or its
designee the ownership of the Deleted Mortgage Loan, and the Master Servicer
shall notify the applicable Borrowers of the transfers of the Deleted Mortgage
Loan(s) and any Replacement Mortgage Loan(s). In connection with any such
repurchase or substitution by GECA, Column or Union Capital, each of the Master
Servicer and the Special Servicer shall deliver to the Person effecting the
repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the Person effecting the repurchase/substitution. In connection
with any repurchase or replacement of a Column Third Party Mortgage Loan by
Column, the Trustee shall assign to Column all right, title and interest of the
Trustee in respect of such Mortgage Loan under the Union Capital Agreement. The
costs and expenses incurred by the Master Servicer, the Special Servicer and/or
the Trustee pursuant to this Section 2.03(b) shall be reimbursable to each of
them as Servicing Advances in respect of the affected Mortgage Loan.
(c) The Mortgage Loan Purchase and Sale Agreements and the Union
Capital Agreement provide the sole remedies available to the Certificateholders,
or the Trustee on their behalf, respecting any Breach. If GECA, Column and/or
Union Capital defaults on its obligations to repurchase or replace any Mortgage
Loan as contemplated by this Section 2.03, the Master Servicer shall promptly
notify the Trustee and the Certificateholders (or, if the Mortgage Loan Seller
of the affected Mortgage Loan is an Affiliate of the Master Servicer, the
Trustee shall notify the Certificateholders). Thereafter, the Master Servicer
(or, if the Mortgage Loan Seller of the affected Mortgage Loan is an Affiliate
of the Master Servicer, subject to Section 8.02, the Trustee) shall take such
actions on behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations, including the institution and prosecution
of appropriate legal proceedings, as the Master Servicer (or, if applicable and
subject to Section 8.02, the Trustee) shall determine
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are in the best interests of the Certificateholders (taken as a collective
whole). Any and all reasonable out-of-pocket expenses incurred by the Master
Servicer (or, if applicable, the Trustee) (including, without limitation,
reasonable attorney fees and expenses) with respect to the foregoing shall
constitute Servicing Advances in respect of the affected Mortgage Loan.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance under,
and compliance with this Agreement, will not violate the Depositor's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Depositor, is
likely to affect materially and adversely either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Depositor's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders that
previously have been obtained, (B) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and sale of
the Certificates by the Underwriter, and (C) any recordation of the
assignments of Mortgage Loan documents to the Trustee pursuant to Section
2.01(e), which has not yet been completed.
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(vii) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(viii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(ix) Assuming the accuracy of the representations and warranties of
the Mortgage Loan Sellers set forth in their respective Mortgage Loan
Purchase and Sale Agreements, immediately prior to the transfer of the
Original Mortgage Loans to the Trustee for the benefit of the
Certificateholders pursuant to this Agreement, the Depositor had good and
marketable title to, and was the sole owner and holder of, each such
Mortgage Loan, and the Depositor has full right and authority to sell,
assign and transfer the Original Mortgage Loans.
(x) The Depositor is transferring the Original Mortgage Loans to the
Trustee for the benefit of the Certificateholders free and clear of any
and all liens, pledges, charges and security interests created by or
through the Depositor.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
any breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice thereof to the other
parties hereto.
SECTION 2.05. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability
of each Mortgage Loan and to perform its obligations under this Agreement.
(ii) The Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate the Master
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
material instrument to which it is a party or by which it is bound, which
breach or default, in the good faith and reasonable judgment of the Master
Servicer, is likely to affect materially and adversely either the ability
of the Master Servicer to perform its obligations under this Agreement or
the financial condition of the Master Servicer.
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(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with this Agreement will
not constitute a violation of, any law, any order or decree of any court
or arbiter, or any order, regulation or demand of any federal, state or
local governmental or regulatory authority, which violation, in the Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Master Servicer to
perform its obligations under this Agreement or the financial condition of
the Master Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained.
(vii) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that, if
determined adversely to the Master Servicer, would prohibit the Master
Servicer from entering into this Agreement or that, in the Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the Master
Servicer.
(viii) Each officer, director or employee of the Master Servicer
with responsibilities concerning the servicing and administration of any
Mortgage Loan is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(d).
(ix) There is no event, condition or circumstance in existence that
constitutes (or, with notice or lapse of time, or both, would constitute)
an Event of Default on the part of the Master Servicer.
(x) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Mortgage Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(xi) To the best knowledge of the Master Servicer (which knowledge
may be based upon information obtained from vendors who have responded to
the Master Servicer's supplier inquiries and/or from information obtained
by the Master Servicer from sources which the Master Servicer
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reasonably believes are reliable), any custom-made software or hardware
designed or purchased or licensed by the Master Servicer, which the Master
Servicer has identified as being mission-critical to its business for
purposes of its operations and for purposes of compiling, reporting or
generating data required by this Agreement, is capable of accurately
performing calculations or other processing with respect to dates after
December 31, 1999 as a result of the changing of the date from 1999 to
2000, including leap year calculations, when used for the purpose for
which it was intended, assuming that all other products, including other
software or hardware, when used in combination with such software or
hardware designed or purchased or licensed by the Master Servicer,
properly exchange date data.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of such foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the
other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 2.05(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.05(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.06. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of California,
and the Special Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The Special Servicer's execution and delivery of, performance
under and compliance with this Agreement will not violate the Special
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets, which default, in the good faith and reasonable judgment of
the Special Servicer, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions involving the Special Servicer
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer,
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enforceable against the Special Servicer in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Special Servicer's good faith and reasonable judgment,
is likely to affect materially and adversely either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the outcome
of which, in the Special Servicer's good faith and reasonable judgement,
would prohibit the Special Servicer from entering into this Agreement or,
in the Special Servicer's good faith and reasonable judgment, could
reasonably be expected to materially and adversely affect either the
ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vii) The Special Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(viii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Special Servicer of the transactions contemplated
herein, expect for those consents, approvals, authorizations or orders
that previously have been obtained and where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the Special Servicer to perform its obligations under
this Agreement.
(ix) Any custom-made software or hardware designed, purchased or
licensed by the Special Servicer and used by the Special Servicer in the
performance of its duties under, or the compiling, reporting or generation
of data required by, this Agreement, does not contain any deficiency (A)
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 (B) that would cause such software or hardware 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.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 2.06(a), subject to such appropriate
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modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.07. Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants
with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a national
banking association under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan
(insofar as such enforceability is dependent upon compliance by the
Trustee with such laws) and to perform its obligations under this
Agreement.
(ii) The Trustee's execution and delivery of, performance under and
compliance with this Agreement, will not violate the Trustee's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Trustee is
likely to affect materially and adversely either the ability of the
Trustee to perform its obligations under this Agreement or the financial
condition of the Trustee.
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
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(vii) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or that, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(ix) The Trustee is currently modifying its computer systems and
expects that, by December 31, 1999, it will be Year 2000 Ready such that
its operations and its ability to perform its obligations under this
Agreement will not be materially and adversely affected by the occurrence
of calendar year 2000. The Trustee is also assessing whether its key
vendors and subcontractors will be Year 2000 Ready by such date.
(b) The representations and warranties of the Trustee set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
a breach of any such representations and warranties, the party discovering such
breach shall give prompt written notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.07(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.08. Designation of the Certificates.
(a) The Certificates shall consist of 22 Classes hereby designated
as the "Class S Certificates", the "Class A-1A Certificates", the "Class A-1B
Certificates", the "Class A-1C Certificates", the "Class A-2 Certificates", the
"Class A-3 Certificates", the "Class A-4 Certificates", the "Class A-5
Certificates", the "Class B-1 Certificates", the "Class B-2 Certificates", the
"Class B-3 Certificates", the "Class B-4 Certificates", the "Class B-5
Certificates", the "Class B-6 Certificates", the "Class B-7 Certificates, the
"Class B-8 Certificates", the "Class C Certificates", the "Class D Certificates,
the "Class E Certificates", the "Class R-I Certificates", the "Class R-II
Certificates" and the "Class R-III Certificates", respectively.
(b) The Class A-1A, Class A-1B, Class A-1C, Class A-2, Class A-3,
Class A-4 and Class A-5 Certificates are collectively designated as the "Class A
Certificates".
(c) The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7 and Class B-8 Certificates are collectively designated as the
"Class B Certificates".
(d) The Class S, Class A-1A and Class A-1B Certificates are
collectively designated as the "Senior Certificates".
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(e) The Class A-1C, Class A-2, Class A-3, Class A-4, Class A-5,
Class B, Class C, Class D, Class R-I, Class R-II and Class R-III Certificates
are collectively designated as the "Subordinated Certificates".
(f) The Class A, Class B, Class C and Class D Certificates are
collectively designated as the "Principal Balance Certificates".
(g) The Class S Certificates are also designated as the "Interest
Only Certificates".
(h) The Interest Only Certificates and the Principal Balance
Certificates are collectively designated as the "Regular Interest Certificates".
(i) The Class R-I, Class R-II and Class R-III Certificates are
collectively designated as the "Residual Interest Certificates".
(j) The Regular Interest Certificates and the Class R-III
Certificates are collectively designated as the "REMIC III Certificates".
SECTION 2.09. Creation of REMIC I; Issuance of REMIC I Regular
Interests and REMIC I Residual Interest; Certain
Matters Involving REMIC I and the Loan REMICs.
(a) It is the intention of the parties hereto that the following
segregated pool of assets constitute a REMIC for federal income tax purposes
and, further, that such segregated pool of assets be designated as "REMIC I":
(i) the Mortgage Loans that are from time to time subject to this Agreement
(other than the Gold Ridge Apartments Mortgage Loan, the Regency Apartments
Mortgage Loan, the Yonkers Shopping Center Mortgage Loan and any Replacement
Mortgage Loan(s) in respect thereof) and all payments under and proceeds of such
Mortgage Loans received after the Closing Date or, in the case of any such
Mortgage Loan that is a Replacement Mortgage Loan, after the related date of
substitution (other than scheduled payments of interest and principal due on or
before the Cut-off Date or, in the case of any such Mortgage Loan that is
Replacement Mortgage Loan, on or before the related date of substitution, and
other than Additional Interest collected in respect of the ARD Loans after their
respective Anticipated Repayment Dates), together with all documents included in
the related Mortgage Files and Servicing Files and any related Additional
Collateral; (ii) any REO Property acquired in respect of any Mortgage Loan
(other than the Gold Ridge Apartments Mortgage Loan, the Regency Apartments
Mortgage Loan, the Yonkers Shopping Center Mortgage Loan and any Replacement
Mortgage Loan(s) in respect thereof); (iii) such funds and assets as from time
to time are deposited in the Collection Account, the Distribution Account, the
Interest Reserve Account, the Gain on Sale Reserve Fund and, if established, the
REO Account (exclusive of any amounts that constitute Additional Interest
collected in respect of the ARD Loans after their respective Anticipated
Repayment Dates); (iv) the rights of the Depositor under Sections 2, 3(a), 3(b),
3(d), 4 and 12 (and, to the extent related to the foregoing and applicable,
under Sections 9, 10, 13, 14, 15, 16, 17 and 19) of each Mortgage Loan Purchase
and Sale Agreement; (v) the rights of the Trustee and the Certificateholders as
third party beneficiaries under each Mortgage Loan Purchase and Sale Agreement
(as and to the extent provided under Section 11 thereof), (vi) the rights of the
Depositor under the Union Capital Agreement (insofar as such rights were
assigned thereto under the Column Mortgage Loan Purchase and Sale Agreement);
and (vii) the Loan REMIC Regular Interests and all payments under and proceeds
of such Loan
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REMIC Regular Interests received after the Closing Date. The Closing Date is
hereby designated as the "Startup Day" of REMIC I within the meaning of Section
860G(a)(9) of the Code.
A Loan REMIC Declaration has been made with respect to each of the
Gold Ridge Apartments Mortgage Loan, the Regency Apartments Mortgage Loan and
the Yonkers Shopping Center Mortgage Loan. In the case of each such Mortgage
Loan, the related Loan REMIC will include such Original Mortgage Loan, any
Replacement Mortgage Loan substituted therefor and any REO Property acquired in
respect of such Original Mortgage Loan or any such Replacement Mortgage Loan.
(b) Concurrently with the assignment of the Original Mortgage Loans
(or, in the case of each of the Gold Ridge Apartments Mortgage Loan, the Regency
Apartments Mortgage Loan and the Yonkers Shopping Center Mortgage Loan, the
related Loan REMIC Interests) and certain related assets to the Trustee pursuant
to Section 2.01(b) and in exchange therefor, the REMIC I Regular Interests and
the REMIC I Residual Interest shall be issued. A separate REMIC I Regular
Interest shall be issued with respect to each Original Mortgage Loan and Loan
REMIC Regular Interest that is an asset of REMIC I. For purposes of this
Agreement, each REMIC I Regular Interest shall relate to the Original Mortgage
Loan in respect of which it was issued (or, if applicable, to the Loan REMIC
Regular Interest in respect of which it was issued and also to the corresponding
Original Mortgage Loan), to each Replacement Mortgage Loan (if any) substituted
for such Original Mortgage Loan, and to each REO Mortgage Loan deemed
outstanding with respect to an REO Property (if any) acquired in respect of any
such Original Mortgage Loan (including the Gold Ridge Apartments Mortgage Loan,
the Regency Apartments Mortgage Loan and the Yonkers Shopping Center Mortgage
Loan) or any such Replacement Mortgage Loan. None of the REMIC I Regular
Interests shall be certificated. The REMIC I Residual Interest, together with
the REMIC I Regular Interests, shall constitute the entire beneficial ownership
of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
I Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC I. The Gold Ridge
Apartments REMIC Regular Interest shall constitute the "regular interest"
(within the meaning of Section 860G(a)(1) of the Code), and the Gold Ridge
Apartments REMIC Residual Interest shall constitute the sole "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in the Gold Ridge
Apartments REMIC. The Regency Apartments REMIC Regular Interest shall constitute
the "regular interest" (within the meaning of Section 860G(a)(1) of the Code),
and the Regency Apartments REMIC Residual Interest shall constitute the sole
"residual interest" (within the meaning of Section 860G(a)(2) of the Code), in
the Regency Apartments REMIC. The Yonkers Shopping Center REMIC Regular Interest
shall constitute the "regular interest" (within the meaning of Section
860G(a)(1) of the Code), and the Yonkers Shopping Center REMIC Residual Interest
shall constitute the sole "residual interest" (within the meaning of Section
860G(a)(2) of the Code), in the Yonkers Shopping Center REMIC. None of the
parties hereto, to the extent it is within the control thereof, shall create or
permit the creation of any other "interests" in REMIC I or any Loan REMIC
(within the meaning of Treasury regulation section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Original Mortgage Loan set forth in the
Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Balance of the
related Original Mortgage Loan (as specified in the Mortgage Loan Schedule).
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On each Distribution Date, the Uncertificated Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by any distributions of principal
deemed made in respect of such REMIC I Regular Interest on such Distribution
Date pursuant to Section 4.01(j) and, further, by any Principal Balance
Reduction made with respect to such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.04(c). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall not otherwise be increased or reduced. Deemed distributions to
REMIC II in reimbursement of Unreimbursed Principal Balance Reductions in
respect of a REMIC I Regular Interest shall not constitute deemed distributions
of principal and shall not result in any reduction of the Uncertificated
Principal Balance of such REMIC I Regular Interest.
(f) Each REMIC I Regular Interest shall have a REMIC I Remittance
Rate. The REMIC I Remittance Rate in respect of any particular REMIC I Regular
Interest for any Interest Accrual Period shall be calculated as follows: (i) if,
as of the Closing Date, the related Original Mortgage Loan bears interest
calculated on a 30/360 Basis, then the REMIC I Remittance Rate in respect of the
subject REMIC I Regular Interest for any Interest Accrual Period shall equal the
Mortgage Rate in effect for the related Original Mortgage Loan as of the Closing
Date, minus the applicable Administrative Fee Rate; and (ii) if, as of the
Closing Date, the related Original Mortgage Loan bears interest calculated on an
Actual/360 Basis, then the REMIC I Remittance Rate in respect of the subject
REMIC I Regular Interest for any Interest Accrual Period shall equal (A) a
fraction (expressed as a percentage), the numerator of which is (subject to
adjustment as provided below) the product of twelve times the aggregate amount
of interest that would accrue during such Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to the related Distribution Date if such interest were to be
calculated on an Actual/360 Basis and were to accrue at the Mortgage Rate in
effect for the related Original Mortgage Loan as of the Closing Date, and the
denominator of which is the Uncertificated Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to the related Distribution Date,
minus (B) the applicable Administrative Fee Rate; provided that, in the case of
a REMIC I Regular Interest that corresponds to an Interest Reserve Loan, if the
subject Interest Accrual Period occurs during January of any year or during
December of any year that does not immediately precede a leap year, the amount
of the numerator for the fraction described in clause (ii)(A) above shall be
reduced by the related Interest Reserve Amount that is to be transferred from
the Distribution Account to the Interest Reserve Account in the following
calendar month in accordance with Section 3.04(c) and, if the subject Interest
Accrual Period occurs during February of any year, the amount of the numerator
for the fraction described in clause (ii)(A) above shall be increased by any
related Interest Reserve Amount(s) to be transferred from the Interest Reserve
Account to the Distribution Account pursuant to Section 3.05(c) for distribution
on the Distribution Date in March of such year; and provided, further, that, in
the case of a REMIC I Regular Interest that corresponds to a Mortgage Loan with
a Stated Maturity Date that occurs during any calendar month after the
Determination Date in such month, the REMIC I Remittance Rate in respect of such
REMIC I Regular Interest for the Interest Accrual Period in which such Stated
Maturity Date occurs shall equal the product of (s) the REMIC I Remittance Rate
that would otherwise have been in effect for such REMIC I Regular Interest for
such Interest Accrual Period without regard to this proviso, multiplied by (t) a
fraction (expressed as a percentage), the numerator of which shall be the number
of days in such Interest Accrual Period up to but not including such Stated
Maturity Date, and the denominator of which shall be 30.
(g) Each REMIC I Regular Interest shall bear interest. The
Uncertificated Accrued Interest in respect of each REMIC I Regular Interest
shall commence accruing on the Cut-off Date and, during each Interest Accrual
Period, shall accrue at the applicable REMIC I Remittance Rate on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to the
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related Distribution Date. The Uncertificated Accrued Interest in respect of
each REMIC I Regular Interest shall be calculated on a 30/360 Basis.
Notwithstanding the foregoing, the portion of the Uncertificated Accrued
Interest in respect of any REMIC I Regular Interest for any Interest Accrual
Period that may be deemed distributable to REMIC II with respect to such REMIC I
Regular Interest pursuant to Section 4.01(j) shall not exceed the Uncertificated
Distributable Interest in respect of such REMIC I Regular Interest for the
related Distribution Date.
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the first Distribution Date that follows the Stated Maturity
Date for the related Original Mortgage Loan. The Latest Possible Maturity Date
for each Loan REMIC Regular Interest shall be the Stated Maturity Date for the
related Original Mortgage Loan.
(i) The REMIC I Residual Interest and the Loan REMIC Residual
Interests shall not have principal balances and shall not bear interest.
SECTION 2.10. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC I Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II and
REMIC III Certificates. The Trustee acknowledges the assignment to it of the
REMIC I Regular Interests and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Holders of the
Class R-II and REMIC III Certificates.
SECTION 2.11. Creation of REMIC II; Issuance of REMIC II Regular
Interests and Class R-II Certificates; Certain Matters
Involving REMIC II.
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of the REMIC I Regular Interests constitute a REMIC
for federal income tax purposes and, further, that such segregated pool of
assets be designated as "REMIC II". The Closing Date is hereby designated as the
"Startup Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular
Interests to the Trustee pursuant to Section 2.11 and in exchange therefor, the
REMIC II Regular Interests shall be issued, and the Trustee, pursuant to the
written request of the Depositor executed by an officer of the Depositor, shall
execute, authenticate and deliver to or upon the order of the Depositor, the
Class R-II Certificates in authorized denominations. There shall be seventeen
(17) separate REMIC II Regular Interests. None of the REMIC II Regular Interests
shall be certificated. The interests evidenced by the Class R-II Certificates,
together with the REMIC II Regular Interests, shall constitute the entire
beneficial ownership of REMIC II.
(c) The REMIC II Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-II Certificates shall constitute the sole class of "residual interests"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the
parties hereto, to the extent it is within the control thereof, shall create or
permit the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
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(d) The REMIC II Regular Interests are hereby designated as "REMIC
II Regular Interest A-1A", "REMIC II Regular Interest A-1B", "REMIC II Regular
Interest A-1C", "REMIC II Regular Interest A-2", "REMIC II Regular Interest
A-3", "REMIC II Regular Interest A-4", "REMIC II Regular Interest A-5", "REMIC
II Regular Interest B-1", "REMIC II Regular Interest B-2", "REMIC II Regular
Interest B-3", "REMIC II Regular Interest B-4", "REMIC II Regular Interest B-5",
"REMIC II Regular Interest B-6", "REMIC II Regular Interest B-7", "REMIC II
Regular Interest B-8", "REMIC II Regular Interest C" and "REMIC II Regular
Interest D", respectively.
(e) Each REMIC II Regular Interest shall have an Uncertificated
Principal Balance. The following table sets forth for each REMIC II Regular
Interest the initial Uncertificated Principal Balance thereof and the calendar
month in which the Latest Possible Maturity Date thereof occurs (calculated
based on the Maturity Assumptions):
Designation of Initial Uncertificated Latest Possible
REMIC II Regular Interest Principal Balance Maturity Date(1)
------------------------- ----------------- ----------------
A-1A $140,618,000 October 2008
A-1B $509,118,000 September 2009
A-1C $ 17,716,000 September 2009
A-2 $ 25,000,000 September 2009
A-3 $ 49,461,000 September 2009
A-4 $ 13,489,000 September 2009
A-5 $ 15,738,000 September 2009
B-1 $ 17,986,000 September 2009
B-2 $ 15,737,000 September 2009
B-3 $ 26,979,000 September 2009
B-4 $ 13,489,000 September 2009
B-5 $ 8,993,000 September 2009
B-6 $ 11,241,000 September 2009
B-7 $ 8,993,000 August 2010
B-8 $ 8,993,000 December 2013
C $ 4,497,000 February 2018
D $ 11,241,205 September 2024
------------------
(1) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for
each REMIC II Regular Interest will be the Distribution Date
in the calendar month specified in the foregoing table with
respect to such REMIC II Regular Interest.
On each Distribution Date, the Uncertificated Principal Balance of
each REMIC II Regular Interest shall be permanently reduced by any distributions
of principal deemed made in respect of such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.01(i) and, further, by any Principal
Balance Reduction made with respect to such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.04(b). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall not otherwise be increased or decreased. Deemed
distributions to REMIC III in reimbursement of Unreimbursed Principal Balance
Reductions in respect of a
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REMIC II Regular Interest, shall not constitute deemed distributions of
principal and shall not result in any reduction of the Uncertificated Principal
Balance of such REMIC II Regular Interest.
(f) Each REMIC II Regular Interest shall have a REMIC II Remittance
Rate that, with respect to any Interest Accrual Period, shall equal the weighted
average, expressed as a percentage and rounded to eight decimal places, of the
respective REMIC I Remittance Rates in effect for all the REMIC I Regular
Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest. The
Uncertificated Accrued Interest in respect of each REMIC II Regular Interest
shall commence accruing on the Cut-off Date and, during each Interest Accrual
Period, shall accrue at the applicable REMIC II Remittance Rate on the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to the related Distribution Date. The Uncertificated Accrued
Interest in respect of each REMIC II Regular Interest shall be calculated on a
30/360 Basis. Notwithstanding the foregoing, the portion of the Uncertificated
Accrued Interest in respect of any REMIC II Regular Interest for any Interest
Accrual Period that may be deemed distributable to REMIC III with respect to
such REMIC II Regular Interest pursuant to Section 4.01(i) shall not exceed the
Uncertificated Distributable Interest in respect of such REMIC II Regular
Interest for the related Distribution Date.
(h) The Class R-II Certificates shall not have principal balances
and shall not bear interest.
SECTION 2.12. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC II Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.13. Creation of REMIC III; Issuance of REMIC III
Certificates; Certain Matters Involving REMIC III.
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of the REMIC II Regular Interests constitute a REMIC
for federal income tax purposes and, further, that such segregated pool of
assets be designated as "REMIC III". The Closing Date is hereby designated as
the "Startup Day" of REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(b) Concurrently with the assignment of the REMIC II Regular
Interests to the Trustee pursuant to Section 2.13 and in exchange therefor, the
Trustee shall execute, authenticate and deliver to or upon the order of the
Depositor, the REMIC III Certificates in authorized denominations evidencing the
entire beneficial ownership of REMIC III. There shall be 19 Classes of REMIC III
Certificates. The REMIC III Certificates shall evidence the entire beneficial
ownership of REMIC III.
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(c) The respective Classes of the Regular Interest Certificates
shall constitute the "regular interests" (within the meaning of Section
860G(a)(1) of the Code), and the Class R-III Certificates shall constitute the
sole class of "residual interests" (within the meaning of Section 860(G)(a)(2)
of the Code), in REMIC III. None of the parties hereto, to the extent it is
within the control thereof, shall create or permit the creation of any other
"interests" in REMIC III (within the meaning of Treasury regulation section
1.860D-1(b)(1)).
(d) The Class S Certificates shall not have principal balances. For
purposes of accruing interest, however, the Class S Certificates shall have a
Class Notional Amount that is, as of any date of determination, equal to the
aggregate of the then Uncertificated Principal Balances of all the REMIC II
Regular Interests.
Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for the Class S
Certificates shall be the Distribution Date in September 2024.
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance.
The following table sets forth for each Class of Principal Balance
Certificates the initial Class Principal Balance thereof and the calendar month
in which the Latest Possible Maturity Date thereof occurs (calculated based on
the Maturity Assumptions):
Class Initial Class Latest Possible
Designation Principal Balance Maturity Date(1)
----------- ----------------- ----------------
Class A-1A $140,618,000 October 2008
Class A-1B $509,118,000 September 2009
Class A-1C $ 17,716,000 September 2009
Class A-2 $ 25,000,000 September 2009
Class A-3 $ 49,461,000 September 2009
Class A-4 $ 13,489,000 September 2009
Class A-5 $ 15,738,000 September 2009
Class B-1 $ 17,986,000 September 2009
Class B-2 $ 15,737,000 September 2009
Class B-3 $ 26,979,000 September 2009
Class B-4 $ 13,489,000 September 2009
Class B-5 $ 8,993,000 September 2009
Class B-6 $ 11,241,000 September 2009
Class B-7 $ 8,993,000 August 2010
Class B-8 $ 8,993,000 December 2013
Class C $ 4,497,000 February 2018
Class D $ 11,241,205 September 2024
-------------------
(1) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for
each Class of Principal Balance Certificates will be the
Distribution Date in the calendar month specified in the
foregoing table with respect to such Class of Principal
Balance Certificates.
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On each Distribution Date, the Class Principal Balance of each Class
of Principal Balance Certificates shall be permanently reduced by any
distributions of principal made in respect of such Class of Certificates on such
Distribution Date pursuant to Section 4.01(a) and, further, by any Principal
Balance Reduction made with respect to such Class of Certificates on such
Distribution Date pursuant to Section 4.04(a). Except as provided in the
preceding sentence, the Class Principal Balance of each Class of Principal
Balance Certificates shall not otherwise be increased or reduced. Distributions
to the Holders of any such Class of Principal Balance Certificates in
reimbursement of any Unreimbursed Principal Balance Reductions in respect of
such Class of Certificates shall not constitute distributions of principal and
shall not result in any reduction of the related Class Principal Balance.
(f) Each Class of Regular Interest Certificates shall have a
Pass-Through Rate.
With respect to the Class A-1A, Class A-1B and Class A-1C
Certificates, the related Pass-Through Rates for each Interest Accrual Period
shall be fixed as set forth below.
Class Fixed Pass-Through Rate
----- -----------------------
Class A-1A 7.120% per annum
Class A-1B 7.340% per annum
Class A-1C 7.440% per annum
With respect to the Class A-2 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of the
Corresponding REMIC II Regular Interest for such Class of Certificates and (ii)
7.540% per annum.
With respect to the Class A-3 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of the
Corresponding REMIC II Regular Interest for such Class of Certificates and (ii)
7.730% per annum.
With respect to the Class A-4 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of the
Corresponding REMIC II Regular Interest for such Class of Certificates and (ii)
7.830% per annum.
With respect to the Class A-5 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of the
Corresponding REMIC II Regular Interest for such Class of Certificates and (ii)
8.120% per annum.
With respect to the Class B-1 and Class B-2 Certificates, the related
Pass-Through Rates for each Interest Accrual Period shall, in the case of each
of those Classes of Certificates, equal the REMIC II Remittance Rate in effect
during such Interest Accrual Period in respect of the Corresponding REMIC II
Regular Interest for such Class of Certificates.
With respect to the Class B-3, Class B-4, Class B-5, Class B-6, Class B-7,
Class B-8, Class C and Class D Certificates, the related Pass-Through Rate for
each Interest Accrual Period shall, in the case of each
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of those Classes of Certificates, equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of the
Corresponding REMIC II Regular Interest for such Class of Certificates and (ii)
6.925% per annum.
With respect to the Class S Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the excess, if any, of (i) the
weighted average of the respective REMIC II Remittance Rates in effect during
such Interest Accrual Period in respect of all of the REMIC II Regular
Interests, over (ii) the weighted average of the respective Adjusted REMIC II
Remittance Rates in effect during such Interest Accrual Period in respect of all
of the REMIC II Regular Interests. For purposes of the foregoing, the relevant
weighting shall be based on the Uncertificated Principal Balance of each REMIC
II Regular Interest immediately prior to the related Distribution Date.
(g) Each Class of Regular Interest Certificates shall bear interest.
Accrued Certificate Interest in respect of the Regular Interest Certificates
shall commence accruing on the Cut-off Date. With respect to each Class of
Regular Interest Certificates, the Accrued Certificate Interest shall accrue
during each Interest Accrual Period at the applicable Pass-Through Rate on the
Class Principal Balance (or, in the case of the Class S Certificates, the Class
Notional Amount) of such Class of Certificates outstanding immediately prior to
the related Distribution Date. The Accrued Certificate Interest in respect of
each Class of Regular Interest Certificates shall be calculated on a 30/360
Basis. Notwithstanding the foregoing, the portion of the Accrued Certificate
Interest in respect of any Class of Regular Interest Certificates for any
Interest Accrual Period that may be distributable to the Holders of such Class
of Certificates pursuant to Section 4.01(a) shall not exceed the Distributable
Certificate Interest in respect of such Class of Certificates for the related
Distribution Date.
(h) The Class R-III Certificates shall not have principal balances
and shall not bear interest.
SECTION 2.14. Acceptance of Grantor Trusts by Trustee; Issuance of
the Class E and Class R-I Certificates.
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of any collections of Additional Interest received on
the ARD Loans constitute a Grantor Trust for federal income tax purposes and,
further, that such segregated pool of assets be designated as "Grantor Trust E".
The Trustee, by its execution and delivery hereof, acknowledges the assignment
to it of the assets of Grantor Trust E and declares that it will hold such
assets in trust for the exclusive use and benefit of all present and future
Holders of the Class E Certificates. Concurrently with the assignment to it of
the assets included in Grantor Trust E, the Trustee shall execute, authenticate
and deliver to or upon the order of the Depositor the Class E Certificates in
authorized denominations evidencing the entire beneficial ownership of Grantor
Trust E. The rights of the Holders of the Class E Certificates to receive
distributions from the proceeds of Grantor Trust E, and all ownership interests
of such Holders in and to such distributions, shall be as set forth in this
Agreement.
(b) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all right, title and interest of the Depositor in and to the REMIC I Residual
Interest and the Loan REMIC Residual Interests to the Trustee for the benefit of
the Holders of the Class R-I Certificates. It is the intention of the parties
hereto that the segregated pool of assets consisting of the REMIC I Residual
Interest and the Loan REMIC Residual Interests constitute
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a Grantor Trust for federal income tax purposes and, further, that such
segregated pool of assets be designated as "Grantor Trust R-I". The Trustee, by
its execution and delivery hereof, acknowledges the assignment to it of the
assets of Grantor Trust R-I and declares that it will hold such assets in trust
for the exclusive use and benefit of all present and future Holders of the Class
R-I Certificates. Concurrently with the assignment to it of the assets included
in Grantor Trust R-I, the Trustee shall execute, authenticate and deliver to or
upon the order of the Depositor the Class R-I Certificates in authorized
denominations evidencing the entire beneficial ownership of Grantor Trust R-I.
The rights of the Holders of the Class R-I Certificates to receive distributions
from the proceeds of Grantor Trust R-I, and all ownership interests of such
Holders in and to such distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement, for the benefit
of the Certificateholders (as a collective whole), in accordance with any and
all applicable laws, in accordance with the express terms of this Agreement and
the respective Mortgage Loans, and, to the extent consistent with the foregoing,
in accordance with the Servicing Standard. The Master Servicer or Special
Servicer, as applicable in accordance with this Agreement, shall service and
administer each Cross-Collateralized Group as a single Mortgage Loan as and when
necessary and appropriate consistent with the Servicing Standard. Without
limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer
shall service and administer all Performing Mortgage Loans, and (ii) the Special
Servicer shall service and administer (x) each Mortgage Loan (other than a
Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred,
and (y) each REO Property; provided, however, that the Master Servicer shall
continue to collect information and prepare all reports to the Trustee required
hereunder with respect to any Specially Serviced Mortgage Loans and REO
Properties (and the related REO Mortgage Loans) and, further, to render such
incidental services with respect to any Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for herein. The Master Servicer
shall not, on behalf of the Trust, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Mortgage
Loans it is obligated to service hereunder, is hereby authorized and empowered
by the Trustee to execute and deliver, on behalf of the Certificateholders and
the Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and other related collateral; and (ii) any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments. In addition, without
limiting the generality of the foregoing, each of the Master Servicer and
Special Servicer is authorized and empowered by the Trustee to execute and
deliver, in accordance with the Servicing Standard and subject to Sections 3.08
and 3.20, any and all assumptions, modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File. Subject to Section 3.10, the Trustee shall, at the written request of a
Servicing Officer of the Master Servicer or the Special Servicer, furnish, or
cause to be so furnished, to the Master Servicer or the Special Servicer, as
appropriate, any limited powers of attorney and other documents (each of which
shall be prepared by the Master Servicer or Special Servicer, as applicable)
necessary or appropriate to enable it to carry out its servicing and
administrative duties hereunder; provided, however, that the Trustee shall not
be held liable for any misuse of any such power of attorney by the Master
Servicer or the Special Servicer.
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(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The Master Servicer and the Special Servicer shall each
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard; provided, however, that neither the Master Servicer nor the Special
Servicer shall, with respect to any Designated ARD Loan after its Anticipated
Repayment Date, take any enforcement action with respect to the payment of
Additional Interest (other than the making of requests for its collection),
unless (i) the taking of an enforcement action with respect to the payment of
other amounts due under such Mortgage Loan is, in the good faith and reasonable
judgment of the Special Servicer, and without regard to such Additional
Interest, also necessary, appropriate and consistent with the Servicing Standard
or (ii) all other amounts due under such Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated Advance Interest. Consistent with the
foregoing, the Master Servicer (as to Performing Mortgage Loans) and the Special
Servicer (as to Specially Serviced Mortgage Loans) each may waive any Default
Charges in connection with any specific delinquent payment on a Mortgage Loan it
is obligated to service hereunder.
(b) Ninety days prior to the maturity date of each Balloon Mortgage
Loan, the Master Servicer shall send a notice to the related Borrower of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), in which all Escrow Payments received by it
with respect to the Mortgage Loans shall be deposited and retained. Subject to
any terms of the related Mortgage Loan documents that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) to effect the payment of real estate taxes, assessments, insurance
premiums (including, without limitation, premiums on any Environmental Insurance
Policy), ground rents (if applicable) and comparable items in respect of the
related Mortgaged Property; (ii) to reimburse the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed
Servicing Advances made thereby to cover any of the items described in the
immediately preceding clause (i); (iii) to refund to the related Borrower any
sums as may be determined to be overages; (iv) to pay interest or other income,
if required and as described below, to the related Borrower on balances in the
Servicing Account (or, if and to the extent not payable to the related Borrower
to pay such interest or other income (up to the amount of any Net Investment
Earnings in respect of such Servicing Account for each Collection Period) to the
Master Servicer); or (v) to clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. The Master
Servicer shall pay or cause to be paid to the Borrowers interest and other
income, if any, earned on the investment of funds in Servicing Accounts
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maintained thereby, if and to the extent required by law or the terms of the
related Mortgage Loan. If the Master Servicer shall deposit in a Servicing
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding. Promptly after any Escrow Payments are received by the
Special Servicer from any Borrower, and in any event within two Business Days
after any such receipt, the Special Servicer shall remit such Escrow Payments to
the Master Servicer for deposit in the applicable Servicing Account(s).
(b) The Master Servicer shall as to each Mortgage Loan (including
each Specially Serviced Mortgage Loan) (i) maintain accurate records with
respect to the related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof and (ii) use reasonable efforts consistent with the Servicing Standard
to obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan documents; provided, however, that if such Mortgage Loan does not
require the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
each of the Master Servicer and the Special Servicer shall, as to those Mortgage
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, enforce the requirement of the related Mortgage
that the Borrower make payments in respect of such items at the time they first
become due.
(c) In accordance with the Servicing Standard, the Master Servicer
shall advance with respect to each Mortgaged Property (including each Mortgaged
Property relating to a Specially Serviced Mortgage Loan) all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies (including, without limitation,
premiums on any Environmental Insurance Policy), in each instance prior to the
applicable penalty or termination date if and to the extent that (x) Escrow
Payments (if any) collected from the related Borrower are insufficient to pay
such item when due, (y) the Master Servicer determines in accordance with the
Servicing Standard that the related Borrower has failed to pay such item on a
timely basis and (z) the particular Advance would not, if made, constitute a
Nonrecoverable Servicing Advance; provided that with respect to any Mortgage
Loan under which the related Borrower is not required to make Escrow Payments
for real estate taxes, the Master Servicer shall be required to advance such
real estate taxes only upon its determination, using efforts consistent with the
Servicing Standard, that such real estate taxes have not been paid). All such
Advances shall be reimbursable in the first instance from related collections
from the Borrowers and further as provided in Section 3.05(a). No costs incurred
by the Master Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of such Mortgaged
Properties shall, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the respective unpaid principal
balances or Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit; provided,
however, that this sentence shall not be construed to limit the rights of the
Master Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Mortgage Loan.
(d) The Master Servicer shall establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if
any, shall be deposited and retained. As and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, withdrawals of
amounts so deposited, and draws under any Letter of Credit delivered in lieu of
Reserve Funds, may be made to pay for, or to reimburse the related Borrower in
connection with, the costs associated with the related
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tenant improvements, leasing commissions, repairs, replacements, capital
improvements and/or environmental testing and remediation at or with respect to
the related Mortgaged Property for which such Reserve Funds were intended or
such Letter of Credit was delivered. In addition, as and to the extent
consistent with the Servicing Standard and the related Mortgage Loan documents,
withdrawals of amounts so deposited, and draws under any Letter of Credit so
delivered, may be made to prepay the Mortgage Loan in the event certain leasing
or other economic criteria are not satisfied at the related Mortgaged Property,
or to release such amounts to the related Borrower or otherwise apply such
amounts for any other appropriate purpose in the event that such criteria are
satisfied. Subject to the terms of the related Mortgage Loan documents, each
Reserve Account shall be an Eligible Account. Interest and other income, if any,
earned on funds on deposit in any Reserve Account held by the Master Servicer
(to the extent of any Net Investment Earnings with respect to such Reserve
Account for any Collection Period), shall be for the benefit of and payable to
the Master Servicer, unless otherwise required to be paid to the related
Borrower by law or the terms of the related Mortgage Loan. Any out-of-pocket
expenses incurred by the Master Servicer to enable the Master Servicer to make
any draw under any Letter of Credit shall constitute a Servicing Advance, and
the Master Servicer shall make reasonable efforts to recover such expenses from
the related Borrower to the extent the Borrower is required to pay such expenses
under the terms of the related Mortgage Loan. Except as otherwise provided in
any Letter of Credit or in the related Mortgage Loan documents, the Master
Servicer shall not release any Letter of Credit without the approval of the
Special Servicer.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Borrower written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any other
action or remediation with respect to environmental matters is required to have
been taken or completed pursuant to the terms of the related Mortgage Loan
documents, the Master Servicer shall request from the Borrower written
confirmation of such action and remediations within a reasonable time after the
later of the Closing Date and the date as of which such action or remediations
are required to have been taken or completed. To the extent that a Borrower
shall fail to promptly respond to any inquiry described in this Section 3.03(e),
the Master Servicer shall notify the Trustee, the Special Servicer and the
Controlling Class Representative. The Master Servicer shall promptly notify the
Trustee, the Special Servicer and the Controlling Class Representative if the
Master Servicer shall determine that any Borrower has failed to perform its
obligations under the related Mortgage Loan in respect of environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage
Loan documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
SECTION 3.04. Collection Account, Distribution Account, Interest
Reserve Account and Gain on Sale Reserve Fund.
(a) The Master Servicer shall establish and maintain one or more
segregated accounts (collectively, the "Collection Account"), in which the funds
described below are to be deposited and held on behalf of the Trustee in trust
for the benefit of the Certificateholders. Each account that constitutes the
Collection Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Collection Account, within one Business
Day of receipt (in the case of payments by Borrowers or other collections on the
Mortgage Loans) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of the Master Servicer in respect
of the Mortgage Pool
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subsequent to the Closing Date (other than in respect of scheduled payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date (or, in the case of a Replacement Mortgage Loan, on or before the
related date of substitution), which payments shall be delivered promptly to the
related Mortgage Loan Seller or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse):
(i) all payments or transfers from a debt service reserve account on
account of principal of the Mortgage Loans, including Principal
Prepayments;
(ii) all payments or transfers from a debt service reserve account
on account of interest on the Mortgage Loans, including Default Interest
and Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of the Mortgage Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master force place
hazard policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Borrower specifically to cover items for which a
Servicing Advance has been made.
The foregoing requirements for deposit in the Collection Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Borrowers in the nature of Escrow Payments, assumption fees,
assumption application fees, extension fees, modification fees, charges for
beneficiary statements or demands and amounts collected for checks returned for
insufficient funds, need not be deposited by the Master Servicer in the
Collection Account. The Master Servicer shall promptly deliver to the Special
Servicer any of the foregoing items received by it, if and to the extent that
such items constitute Additional Special Servicing Compensation. If the Master
Servicer shall deposit in the Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of the first paragraph of this Section 3.04(a) with respect to
any Mortgage Loan, the Special Servicer shall promptly, but in no event later
than one Business Day after receipt, remit such amounts to the Master Servicer
for deposit into the Collection Account in accordance with the second preceding
paragraph, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item should not be deposited
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because of a restrictive endorsement. With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
such check to the order of the Master Servicer (in its capacity as such for the
Trust), without recourse, representation or warranty, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to an REO
Property shall be deposited by the Special Servicer into the REO Account and
remitted to the Master Servicer for deposit into the Collection Account pursuant
to Section 3.16(c).
(b) The Trustee shall establish and maintain one or more segregated
accounts (collectively, the "Distribution Account"), to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Trustee shall, as a
bookkeeping matter, establish and maintain two sub-accounts of the Distribution
Account (i) one of which sub-accounts (such sub-account, the "REMIC
Sub-Account") shall be deemed to be held in trust for the benefit of the Holders
of the Regular Interest Certificates and the Residual Interest Certificates and
(ii) one of which sub-accounts (such sub-account, the "Class E Sub-Account")
shall be deemed to be held in trust for the benefit of the Holders of the Class
E Certificates. By 2:00 p.m. (New York City time) on each Master Servicer
Remittance Date, the Master Servicer shall deliver to the Trustee, for deposit
in the Distribution Account, an aggregate amount of immediately available funds
equal to the Master Servicer Remittance Amount for such Master Servicer
Remittance Date. Immediately upon deposit of the Master Servicer Remittance
Amount for any Master Servicer Remittance Date into the Distribution Account,
any portion thereof that represents any Additional Interest related to the ARD
Loans shall be deemed to have been deposited into the Class E Sub-Account, and
the remaining portion thereof shall be deemed to have been deposited into the
REMIC Sub-Account. In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account any
P&I Advances and Compensating Interest Payments required to be made by the
Master Servicer hereunder. Furthermore, any amounts paid by any party hereto to
indemnify the Trust Fund pursuant to any provision hereof shall be delivered to
the Trustee for deposit in the Distribution Account. The Trustee shall, upon
receipt, deposit in the Distribution Account any and all amounts received or,
pursuant to Section 4.03, advanced by the Trustee or any Fiscal Agent that are
required by the terms of this Agreement to be deposited therein. As and when
required pursuant to Section 3.05(c), the Trustee shall transfer Interest
Reserve Amounts in respect of the Interest Reserve Loans from the Interest
Reserve Account to the Distribution Account. Furthermore, as and when required
pursuant to Section 3.05(d), the Trustee shall transfer monies from the Gain on
Sale Reserve Fund to the Distribution Account. If the Trustee shall deposit in
the Distribution Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Distribution Account, any provision
herein to the contrary notwithstanding.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2000, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Interest Reserve Amount, if any,
in respect of such Interest Reserve Loan for such Distribution Date; provided
that no such transfer of monies from the Distribution Account to the Interest
Reserve Account shall be made on the Final Distribution Date.
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(d) Upon or prior to the occurrence of a Final Recovery
Determination with respect to any defaulted Mortgage Loan or REO Property, the
Trustee shall establish and maintain one or more accounts (collectively, the
"Gain on Sale Reserve Fund") to be held in trust for the benefit of the
Certificateholders. Each account that constitutes the Gain on Sale Reserve Fund
shall be an Eligible Account. On each Distribution Date that relates to a
Collection Period during which a Final Recovery Determination was made with
respect to any defaulted Mortgage Loan or REO Property, the Trustee shall
deposit in the Gain on Sale Reserve Fund those amounts available to be deposited
pursuant to clause (xlix) of Section 4.01(a); provided that no such deposit of
monies to the Gain on Sale Reserve Fund shall be made on the Final Distribution
Date.
(e) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account, the Interest Reserve Account and the Gain on Sale Reserve
Fund shall remain uninvested. The Master Servicer shall give notice to the other
parties hereto of the location of the Collection Account as of the Closing Date
and of the new location of the Collection Account prior to any change thereof.
The Distribution Account, Interest Reserve Account and Gain on Sale Reserve Fund
shall each be established at the Corporate Trust Office of the Trustee as of the
Closing Date, and the Trustee shall give notice to the other parties hereto of
the new location of each of the Distribution Account, Interest Reserve Account
and Gain on Sale Reserve Fund prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Account, the
Distribution Account, the Interest Reserve Account and
the Gain on Sale Reserve Fund.
(a) The Master Servicer may, from time to time, make withdrawals
from the Collection Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the Master Servicer Remittance Amount for each Master Servicer Remittance
Date and any amounts that may be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for unreimbursed P&I Advances made thereby (in each case, with
its own funds), the Master Servicer's, the Trustee's and any Fiscal
Agent's, as the case may be, respective rights to reimbursement pursuant
to this clause (ii) with respect to any P&I Advance (other than
Nonrecoverable P&I Advances, which are reimbursable pursuant to clause
(vii) below) being limited to amounts that represent Late Collections of
interest and principal received in respect of the particular Mortgage Loan
or REO Mortgage Loan as to which such P&I Advance was made (net of related
Master Servicing Fees and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Mortgage Loan, the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any
Mortgage Loan or REO Mortgage Loan being limited to amounts received on or
in respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds or Insurance Proceeds) or such REO Mortgage Loan
(whether in the form of REO Revenues, Liquidation Proceeds or Insurance
Proceeds) that are allocable as interest thereon;
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(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Mortgage Loan;
(v) to pay the Special Servicer (or, if applicable, any predecessor
thereto) earned and unpaid Workout Fees and Liquidation Fees to which it
is entitled pursuant to, and from the sources contemplated by, the second
and third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds), the Master Servicer's, the
Special Servicer's, the Trustee's and any Fiscal Agent's, as the case may
be, respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance (other than Nonrecoverable Servicing
Advances, which are reimbursable pursuant to clause (vii) below) being
limited to (A) payments made by the related Borrower that are allocable to
cover the item in respect of which such Servicing Advance was made, and
(B) Liquidation Proceeds, Insurance Proceeds and, if applicable, REO
Revenues received in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance was made;
(vii) to reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, out of general collections on the Mortgage
Loans and any REO Properties, for any unreimbursed Advances made thereby
that have been determined to be Nonrecoverable Advances;
(viii) to pay itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, any Advance Interest due and owing thereto,
the Master Servicer's, the Special Servicer's, the Trustee's or any Fiscal
Agent's, as the case may be, respective rights to payment pursuant to this
clause (viii) being limited to Default Charges collected in respect of the
Mortgage Loan or REO Mortgage Loan as to which the related Advances were
made;
(ix) to the extent that the Master Servicer has reimbursed or is
reimbursing itself, the Special Servicer, the Trustee or any Fiscal Agent,
as applicable, for any unreimbursed Advance pursuant to clause (ii), (vi)
or (vii) above or pursuant to Section 3.03(c), and insofar as payment has
not already been made, and the related Default Charges then on deposit in
the Collection Account are not sufficient to make such payment pursuant to
clause (viii) above, to pay itself, the Special Servicer, the Trustee or
such Fiscal Agent, as the case may be, out of general collections on the
Mortgage Loans and any REO Properties, any related Advance Interest
accrued and payable on the portion of such Advance so reimbursed or being
reimbursed;
(x) to pay itself any items of Additional Master Servicing
Compensation on deposit in the Collection Account from time to time;
(xi) to pay to the Special Servicer any items of Additional Special
Servicing Compensation on deposit in the Collection Account from time to
time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to any Mortgage Loan or REO Property, such payments to be made solely from
Liquidation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
received in respect of such Mortgage Loan or REO Property, as the case may
be;
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(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties, certain
servicing expenses that would, if advanced, constitute Nonrecoverable
Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) (other than the costs of environmental
testing, which are to be covered by, and reimbursable as, a Servicing
Advance);
(xv) to pay itself, the Special Servicer, the Tax Administrator, the
Depositor, the Trustee, any Fiscal Agent, or any of their respective
directors, officers, members, managers, employees and agents, as the case
may be, out of general collections on the Mortgage Loans and any REO
Properties, any amounts payable to any such Person pursuant to Section
6.03, Section 7.01(b), Section 8.05(b), Section 8.13 or Section 10.03, as
applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for (A) the cost of the Opinion of Counsel
contemplated by Section 11.02(a), and (B) the cost of recording this
Agreement in accordance with Section 11.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for any expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Tax Administrator pursuant to
Section 3.17(a)(iii) in connection with providing advice to the Special
Servicer;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Tax Administrator or the Depositor, as the
case may be, any amount specifically required to be paid to such Person at
the expense of the Trust Fund under any provision of this Agreement to
which reference is not made in any other clause of this Section 3.05(a),
it being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
(xix) to pay itself, the Special Servicer, GECA, Column, Union
Capital, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase; and
(xx) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in the Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xix),
above, then the corresponding withdrawals from the Collection Account shall be
made in the following priority and subject to the following rules: (y) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (z) if the payment, reimbursement or remittance can be made from any
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funds on deposit in the Collection Account, then (following any withdrawals made
from the Collection Account in accordance with the immediately preceding clause
(y) above) such payment, reimbursement or remittance shall be made from the
general funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds; provided that
any reimbursements of Advances in respect of any particular Mortgage Loan or REO
Property out of the Collection Account pursuant to any of clauses (ii), (vi) and
(vii) above, and any payments of interest thereon out of the Collection Account
pursuant to either of clauses (viii) and (ix) above, shall be made (to the
extent of their respective entitlements to such reimbursements and/or payments):
first, to any Fiscal Agent; second, to the Trustee; and third, pro rata, to the
Master Servicer and Special Servicer.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Collection Account pursuant to any of
clauses (ii) through (xix) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Collection
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or any such third party contractor) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to recalculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account for each of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
(ii) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05, including the Trustee's Fee;
(iii) to pay the Tax Administrator, any Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
any amounts payable or reimbursable to any such Person pursuant to
Sections 8.05(b), 8.13(a) and/or 10.03;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Trustee which amendment
is in furtherance of the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on any
REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating
to tax audits, if and to the extent that either (A) none of the parties
hereto are liable therefor pursuant to Section 10.01(b) and/or Section
10.01(f) or (B) any such Person that may be so liable has failed to timely
make the required payment;
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(vi) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans to the Interest Reserve Account as and when required by
Section 3.04(c); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2000), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Trustee shall withdraw from the Interest Reserve Account and deposit in the
Distribution Account all Interest Reserve Amounts in respect of the Interest
Reserve Loans then on deposit in the Interest Reserve Account.
(d) On the Business Day prior to each Distribution Date, the Trustee
shall withdraw from the Gain on Sale Reserve Fund and deposit in the
Distribution Account, for distribution on such Distribution Date, an amount
equal to the lesser of (i) the entire amount, if any, then on deposit in the
Gain on Sale Reserve Fund and (ii) the excess, if any, of the aggregate amount
distributable on such Distribution Date pursuant to clauses (i) through (xlvii)
of Section 4.01(a), over the Available Distribution Amount for such Distribution
Date (calculated without regard to such transfer from the Gain on Sale Reserve
Fund to the Distribution Account); provided, that on the Business Day prior to
the Final Distribution Date, the Trustee shall withdraw from the Gain on Sale
Reserve Fund and deposit in the Distribution Account, for distribution on such
Distribution Date, any and all amounts then on deposit in the Gain on Sale
Reserve Fund.
(e) The Trustee, any Fiscal Agent, the Depositor, the Master
Servicer and the Special Servicer, as applicable, shall in all cases have a
right prior to the Certificateholders to any particular funds on deposit in the
Collection Account and the Distribution Account from time to time for the
reimbursement or payment of compensation, Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder (or, in the case of
such expenses, to have such funds paid directly to third party contractors from
any invoices approved by the Trustee, any Fiscal Agent, the Depositor, the
Master Servicer or the Special Servicer, as applicable), but only if and to the
extent such compensation, Advances (with interest) and expenses are to be
reimbursed or paid from such particular funds on deposit in the Collection
Account or the Distribution Account pursuant to the express terms of this
Agreement.
SECTION 3.06. Investment of Funds in the Collection Account,
Servicing Accounts, Reserve Accounts and the REO
Account.
(a) The Master Servicer may direct (pursuant to a standing order or
otherwise) any depository institution (including the Trustee) maintaining the
Collection Account or any Servicing Account or Reserve Account held by it, and
the Special Servicer may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the REO Account, to invest, or if it is such
depository institution, may itself invest, the funds held therein (each such
account, for purposes of this Section 3.06, an "Investment Account") in (but
only in) one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement or the related
Mortgage Loan documents, as applicable; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
law and the terms of the related Mortgage Loan documents; and provided, further,
that the funds in any Investment Account shall remain uninvested unless and
until the Master Servicer or Special Servicer, as applicable, gives timely
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investment instructions with respect thereto pursuant to this Section 3.06. All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds in an Investment Account shall be made in the name of
the Trustee (in its capacity as such). The Master Servicer (with respect to
Permitted Investments of amounts in the Collection Account, the Servicing
Accounts and the Reserve Accounts) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Account), acting on behalf of the
Trustee, shall (and Trustee hereby designates the Master Servicer and the
Special Servicer, as applicable, as the Person that shall) (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person designated by, and acting on
behalf of, the Trustee for purposes of Revised Article 8 (1994 Revision) of the
UCC. If amounts on deposit in an Investment Account are at any time invested in
a Permitted Investment payable on demand, the Master Servicer (in the case of
the Collection Account or any Servicing Account or Reserve Account) or the
Special Servicer (in the case of the REO Account) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount at
least equal to the lesser of (1) all amounts then payable thereunder
and (2) the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Collection Account, interest and investment income realized on
funds deposited therein, to the extent of the Net Investment Earnings, if any,
for such Investment Account for each Collection Period, shall be for the sole
and exclusive benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.05(a). Whether or not the Master
Servicer directs the investment of funds in any Servicing Account or Reserve
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for such Investment Account
for each Collection Period, shall be for the sole and exclusive benefit of the
Master Servicer and shall be subject to withdrawal from time to time in
accordance with Section 3.03, but only if and to the extent not required to be
paid to the related Borrower pursuant to applicable law or the terms of the
related Mortgage Loan. Whether or not the Special Servicer directs the
investment of funds in the REO Account, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for such Investment Account for each Collection Period, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account (other
than a loss of what would otherwise have constituted investment earnings), the
Master Servicer (in the case of the Collection Account and any Servicing Account
or Reserve Account) and the Special Servicer (in the case of the REO Account)
shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, in
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respect of such Investment Account for such Collection Period (or, in the case
of a Servicing Account or Reserve Account, the entire amount of such loss).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment, and if the Master Servicer (if such
default is in respect of a Permitted Investment of funds in the Collection
Account or in any Reserve Account or Servicing Account) or the Special Servicer
(if such default is in respect of a Permitted Investment of funds in the REO
Account), as applicable, is in default of its obligations under Section 3.06(b),
the Trustee may, and, subject to Section 8.02, upon the request of Holders of
Certificates entitled to not less than 25% of the Voting Rights allocated to any
Class of Regular Interest Certificates, the Trustee shall, take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate legal proceedings. Any costs incurred
by the Trustee in taking any such action shall be reimbursed to it by the Master
Servicer if the default is in respect of a Permitted Investment of funds in the
Collection Account or in any Reserve Account or Servicing Account or by the
Special Servicer if the default is in respect of a Permitted Investment of funds
in the REO Account. This provision is in no way intended to limit any actions
that the Master Servicer or Special Servicer may take in this regard at its own
expense.
(d) Amounts on deposit in the Distribution Account, the Interest
Reserve Account and the Gain on Sale Reserve Fund shall remain uninvested.
(e) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount and the Master Servicer Remittance Amount,
the amounts so invested shall be deemed to remain on deposit in such Investment
Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall cause to be maintained for each
Mortgaged Property (including each Mortgaged Property relating to any Specially
Serviced Mortgage Loan) all insurance coverage as is required under the related
Mortgage (to the extent consistent with applicable law); provided that if and to
the extent that any such Mortgage permits the holder thereof any discretion (by
way of consent, approval or otherwise) as to the insurance coverage that the
related Borrower is required to maintain, the Master Servicer shall exercise
such discretion in a manner consistent with the Servicing Standard, with a view
towards requiring insurance comparable to that required under other Mortgage
Loans with express provisions governing such matters; and provided, further,
that, if and to the extent that a Mortgage so permits, the related Borrower
shall be required to obtain the required insurance coverage from Qualified
Insurers that, in each case, have a financial strength or claims-paying rating
no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A2" from Moody's (if then rated by
Moody's; and, if not then rated by Moody's, "A:IX" or better from A.M. Best) and
"A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX"
or better from A.M. Best) (or in such other form and amount or issued by an
insurer with such other financial strength or claims-paying ability as would
not, as confirmed in writing by each Rating Agency, result in an Adverse Rating
Event). Subject to Section 3.17(b), the Special Servicer shall also cause to be
maintained for each REO Property no less insurance coverage than was previously
required of the Borrower under the related Mortgage and, at a minimum, (i)
hazard insurance with a replacement cost rider, (ii) business interruption or
rental loss insurance for at least 12 months, and
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(iii) commercial general liability insurance, in each case, in an amount
customary for the type and geographic location of such REO Property and
consistent with the Servicing Standard; provided that all such insurance shall
be obtained from Qualified Insurers that, in each case, shall have a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A2" from
Moody's (if then rated by Moody's; and, if not then rated by Moody's, "A:IX" or
better from A.M. Best) and "A" from Fitch (if then rated by Fitch; and, if not
then rated by Fitch, "A:IX" or better from A.M. Best) (or in such other form and
amount or issued by an insurer with such other financial strength or
claims-paying ability as would not, as confirmed in writing by each Rating
Agency, result in an Adverse Rating Event). All such insurance policies shall
contain (if they insure against loss to property) a "standard" mortgagee clause,
with loss payable to the Master Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of Mortgage Loans), or shall name the Trustee
as the insured, with loss payable to the Special Servicer on behalf of the
Trustee (in the case of insurance maintained in respect of REO Properties), and
shall be issued by an insurer authorized under applicable law to issue such
insurance. Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Borrower, in each case in accordance with the Servicing
Standard) shall be deposited in the Collection Account, subject to withdrawal
pursuant to Section 3.05(a), in the case of amounts received in respect of a
Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section
3.16(c), in the case of amounts received in respect of an REO Property. Any cost
incurred by the Master Servicer or the Special Servicer in maintaining any such
insurance shall not, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to unpaid principal balance or
Stated Principal Balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit; provided, however, that this sentence
shall not limit the rights of the Master Servicer on behalf of the Trust to
enforce any obligations of the related Borrower under such Mortgage Loan.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force place policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer,
then, to the extent such policy (i) is obtained from a Qualified Insurer having
a financial strength or claims-paying rating no lower than "A2" from Moody's and
"A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX"
or better from A.M. Best) or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by each
Rating Agency, result in an Adverse Rating Event, and (ii) provides protection
equivalent to the individual policies otherwise required, the Master Servicer or
the Special Servicer, as the case may be, shall conclusively be deemed to have
satisfied its obligation to cause hazard insurance to be maintained on the
related Mortgaged Properties or REO Properties, as applicable. Such policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as appropriate, shall, if there
shall not have been maintained on the related Mortgaged Property or REO Property
a hazard insurance policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses that would have been covered by
such an individual policy, promptly deposit into the Collection Account from its
own funds the amount not otherwise payable under the blanket or master force
place policy in connection with such loss or losses because of such deductible
clause to the extent that any such deductible exceeds the deductible limitation
that pertained to the related Mortgage Loan (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket or master force
place policy in a timely fashion in accordance with the terms of such policy.
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(c) On or before the Closing Date, with respect to each of the
Mortgage Loans, the Depositor shall notify the insurer under the related
Environmental Insurance Policy and take all other action necessary for the
Trustee, on behalf of the Certificateholders, to be an insured (and for the
Master Servicer, on behalf of the Trust, to make claims) under such
Environmental Insurance Policy. In the event that the Master Servicer has actual
knowledge of any event (an "Insured Environmental Event") giving rise to a claim
under any Environmental Insurance Policy in respect of any Mortgage Loan, the
Master Servicer shall, in accordance with the terms of such Environmental
Insurance Policy and the Servicing Standard, timely make a claim thereunder with
the appropriate insurer and shall take such other actions in accordance with the
Servicing Standard which are necessary under such Environmental Insurance Policy
in order to realize the full value thereof for the benefit of the
Certificateholders. With respect to each Environmental Insurance Policy in
respect of a Mortgage Loan, the Master Servicer shall review and familiarize
itself with the terms and conditions relating to enforcement of claims and shall
monitor the dates by which any claim must be made or any action must be taken
under such policy to realize the full value thereof for the benefit of the
Certificateholders in the event the Master Servicer has actual knowledge of an
Insured Environmental Event giving rise to a claim under such policy.
In the event that the Master Servicer receives notice of any
termination of any Environmental Insurance Policy with respect to a Mortgage
Loan, the Master Servicer shall, within five Business Days after receipt of such
notice, notify the Special Servicer, the Controlling Class Representative, the
Rating Agencies and the Trustee of such termination in writing. Upon receipt of
such notice, the Master Servicer shall address such termination in accordance
with Section 3.07(a). Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with a
resolution of such termination of an Environmental Insurance Policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
(d) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans or REO Properties exist as part of the Trust Fund) keep
in force with a Qualified Insurer having a financial strength or claims-paying
rating no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A2" from Moody's and "A" from Fitch
(if then rated by Fitch; and, if not then rated by Fitch, "A:IX" from A.M.
Best), a fidelity bond in such form and amount as would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans (or in such other
form and amount or issued by an insurer with such other financial strength or
claims-paying ability rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency)). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be. Such fidelity bond shall provide
that it may not be canceled without ten days' prior written notice to the
Trustee.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with a Qualified Insurer having a financial strength or
claims-paying rating no lower than two rating categories below the highest rated
Certificates outstanding, and in any event no lower than "A2" from Moody's and
"A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX"
from A.M. Best), a policy or policies of insurance covering loss occasioned by
the errors and omissions of its officers,
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employees and agents in connection with its servicing obligations hereunder,
which policy or policies shall be in such form and amount as would permit it to
be a qualified FNMA seller-servicer of multifamily mortgage loans (or in such
other form and amount or issued by an insurer with such other financial strength
or claims-paying rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency)). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee.
For so long as the long-term debt obligations of the initial Master
Servicer (or its direct or indirect parent) are rated at least "AAA" or the
equivalent by each of the Rating Agencies, the initial Master Servicer may
self-insure with respect to the risks described in this Section 3.07(d).
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgage Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of
record, shall evaluate any right to transfer and, subject to Section 3.24, shall
enforce the restrictions contained in any Mortgage on transfers or further
encumbrances of the related Mortgaged Property and on transfers of interests in
the related Borrower, unless the Master Servicer or the Special Servicer, as
appropriate, has determined, in its reasonable, good faith judgment, that waiver
of such restrictions would be in accordance with the Servicing Standard;
provided that the Master Servicer shall not waive any right it has, or grant any
consent it is otherwise entitled to withhold, under any related "due-on-sale" or
"due-on-encumbrance" clause unless and until (i) it has so notified the Special
Servicer in writing and provided the Special Servicer with any written or
electronic information in the Master Servicer's possession regarding the
affected Mortgage Loan that the Special Servicer may reasonably request within
five Business Days of receiving such written notice and (ii) the Special
Servicer has consented to such action (such consent to be given or withheld in
accordance with the Servicing Standard and to be deemed given if the Special
Servicer does not object to such action within ten Business Days after receiving
such additional information from the Master Servicer (or, if it did not request
additional information, within ten Business Days after receiving such written
notice)); and provided, further, that neither the Master Servicer nor the
Special Servicer shall waive any right it has, or grant any consent it is
otherwise entitled to withhold, under any related "due-on-encumbrance" clause
(or, if it involves any Mortgage Loan that, individually or together with all
other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as
such Mortgage Loan or have the same Borrower as such Mortgage Loan or have
Borrowers that are known to be affiliated with the Borrower under such Mortgage
Loan, either (i) represents one of the ten largest Mortgage Loans/groups of
related Mortgage Loans or (ii) has an unpaid principal balance at least equal to
the lesser of (A) $15,000,000 and (B) 2% of the then aggregate principal balance
of the Mortgage Pool, under any related "due-on-sale" clause) until it has
received written confirmation from each Rating Agency that such action would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and provided, further, that neither the Master Servicer nor the
Special Servicer shall (to the extent that it is within the control thereof to
prohibit such event) consent to the transfer of any Mortgaged Property which
secures a Cross-Collateralized Group unless all of the Mortgaged Properties
securing such Cross-Collateralized Group are transferred simultaneously by the
respective Borrower. After having made any determination to waive the Trust's
rights under a "due-on-sale" or "due-on encumbrance" clause, the Master Servicer
or the Special Servicer, as appropriate, shall deliver to the Trustee, each
Rating Agency and the other such party an Officer's
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Certificate setting forth the basis for such determination. The Master Servicer
and the Special Servicer shall each provide the other with all such information
as each may reasonably request in order to make such determination.
If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Borrower or a Mortgaged Property, then
the Master Servicer or the Special Servicer, as applicable, will apply that fee
to cover the costs and expenses associated with that transfer or proposed
transfer that would otherwise be payable or reimbursable out of the Trust Fund.
Any remaining portion of such assumption fee (such remaining portion, a "Net
Assumption Fee") or of such assumption application fee (such remaining portion,
a "New Assumption Application Fee") will be applied as additional compensation
to the Master Servicer or the Special Servicer in accordance with Section 3.11.
Neither the Master Servicer nor the Special Servicer shall waive any assumption
fee or assumption application fee, to the extent it would constitute additional
compensation for the other such party, without the consent of such other party.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 3.24, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties and other collateral securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.20; provided that neither the Master Servicer nor the
Special Servicer shall, with respect to any Designated ARD Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Additional Interest (other than the making of requests for its
collection) unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Mortgage Loan is, in the good faith and
reasonable judgment of the Special Servicer, and without regard to such
Additional Interest, also necessary, appropriate and consistent with the
Servicing Standard or (ii) all other amounts due under such Mortgage Loan have
been paid, the payment of such Additional Interest has not been forgiven in
accordance with Section 3.20 and, in the good faith and reasonable judgment of
the Special Servicer, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated Advance Interest. In
connection with the foregoing, in the event of a default under any Mortgage Loan
or Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the Special Servicer shall consult Independent counsel regarding the order and
manner in which the Special Servicer should foreclose upon or comparably proceed
against such properties. The reasonable costs of such consultation shall be paid
by, and reimbursable to, the Special Servicer as a Servicing Advance. In
addition, all costs and expenses incurred in any such proceedings shall be paid
by, and reimbursable to, the Special Servicer as a Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Trust, to make a bid on any Mortgaged Property at a
foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer taking into
account the factors described in Section 3.18(e) and the results of any
appraisal obtained pursuant to the following sentence or otherwise, all such
bids to be made in a manner consistent with the Servicing Standard. If and when
the Special Servicer deems it necessary in accordance with the Servicing
Standard for purposes of establishing the fair market value of any Mortgaged
Property securing a defaulted Mortgage Loan, whether for purposes of bidding at
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foreclosure or otherwise, the Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust under such circumstances, in such manner or pursuant to such terms as
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such REO Property that is not treated as "foreclosure property" and
that is held by REMIC I at any given time constitutes not more than a de minimis
amount of the assets of REMIC I within the meaning of Treasury regulation
Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section
3.17(a), subject the Trust to the imposition of any federal income taxes under
the Code. In addition, the Special Servicer shall not acquire any personal
property on behalf of the Trust pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not result in an Adverse REMIC Event with respect
to any REMIC Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust, obtain title to a Mortgaged Property by foreclosure, deed in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, and taking into account the coverage provided under
the related Environmental Insurance Policy, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
remedial, corrective and/or other further
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actions as are necessary to bring the Mortgaged Property into compliance
with applicable environmental laws and regulations and to appropriately
address any of the circumstances and conditions referred to in clause
(c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer and the Controlling Class Representative, specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports. The cost of such Phase I Environmental Assessment
and any such additional environmental testing shall be advanced by the Master
Servicer at the direction of the Special Servicer given in accordance with the
Servicing Standard; provided, however, that the Master Servicer shall not be
obligated in connection therewith to advance any funds which, if so advanced,
would constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall
be subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (ii) of the preceding paragraph shall be payable out of
the Collection Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first sentence of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master
Servicer and the Controlling Class Representative monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property as
to which neither of the conditions set forth in clauses (i) and (ii) of the
first sentence of Section 3.09(c) has been satisfied, in each case until the
earliest to occur of satisfaction of either of such conditions, release of the
lien of the related Mortgage on such Mortgaged Property and the related Mortgage
Loan's becoming a Corrected Mortgaged Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Special Servicer, with the assistance of the Master
Servicer, shall prepare and file the information returns with respect to the
receipt of any mortgage interest received in a trade or business from
individuals, the reports of foreclosures and abandonments of any Mortgaged
Property and the information returns relating to cancellation of indebtedness
income with respect to any Mortgaged Property required by Section 6050H, 6050J
and 6050P of the Code and shall deliver to the Trustee and the Tax Administrator
an Officer's Certificate stating that such reports have been filed. Such
information returns and reports shall be in form and substance sufficient to
meet the reporting requirements imposed by Sections 6050H, 6050J and 6050P of
the Code. The Master Servicer shall promptly provide to the Special Servicer on
a timely basis all information in the Master Servicer's possession to be
included in such reports and information returns.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer and the
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Controlling Class Representative. The Special Servicer shall maintain accurate
records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the third Business Day
following such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly so
notify the Trustee and request delivery to it or its designee of the related
Mortgage File (such notice and request to be effected by delivering to the
Trustee a Request for Release in the form of Exhibit D-1 attached hereto, which
Request for Release shall be accompanied by the form of any release or discharge
to be executed by the Trustee and shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Collection Account pursuant to Section 3.04(a)
have been or will be so deposited). Upon receipt of such Request for Release,
the Trustee shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or its designee and shall
deliver to the Master Servicer or its designee such accompanying release or
discharge, duly executed. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, the Trustee shall release, or cause any related Custodian to release,
such Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be, or its designee. Upon return of such Mortgage File
(or portion thereof) to the Trustee or the related Custodian, or upon the
Special Servicer's delivery to the Trustee of an Officer's Certificate stating
that (i) such Mortgage Loan was liquidated and all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account pursuant to Section 3.04(a) have been or will be so
deposited or (ii) such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be returned by the Trustee to the Master Servicer or
the Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Borrower on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust,
the Master Servicer or the Special Servicer; provided that the Trustee may
alternatively execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, a limited power of attorney issued in
favor of the Special Servicer and empowering the Special Servicer to execute and
deliver any or all of such pleadings or documents on behalf of the Trustee
(however, the Trustee shall not be liable
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for any misuse of such power of attorney by the Special Servicer). Together with
such pleadings or documents (or such power of attorney empowering the Special
Servicer to execute the same on behalf of the Trustee), the Special Servicer
shall deliver to the Trustee an Officer's Certificate requesting that such
pleadings or documents (or such power of attorney empowering the Special
Servicer to execute the same on behalf of the Trustee) be executed by the
Trustee and certifying as to the reason such pleadings or documents are required
and that the execution and delivery thereof by the Trustee (or by the Special
Servicer on behalf of the Trustee) will not invalidate or otherwise affect the
lien of the Mortgage, except for the termination of such a lien upon completion
of the foreclosure or trustee's sale.
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the
Trustee and any Fiscal Agent regarding Back-up
Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and each
REO Mortgage Loan. As to each such Mortgage Loan and REO Mortgage Loan, for each
calendar month (commencing with October 1999) or any applicable portion thereof,
the Servicing Fee shall accrue (on a 30/360 Basis) at the related Master
Servicing Fee Rate on the same principal amount as interest accrues from time to
time during such calendar month (or portion thereof) on such Mortgage Loan or is
deemed to accrue from time to time during such calendar month (or portion
thereof) on such REO Mortgage Loan, as the case may be. The Master Servicing Fee
with respect to any Mortgage Loan or REO Mortgage Loan shall cease to accrue if
a Liquidation Event occurs in respect thereof. Master Servicing Fees earned with
respect to any Mortgage Loan or REO Mortgage Loan shall be payable monthly from
payments of interest on such Mortgage Loan and REO Revenues allocable as
interest on such REO Mortgage Loan, as the case may be. The Master Servicer
shall be entitled to recover unpaid Master Servicing Fees in respect of any
Mortgage Loan or REO Mortgage Loan out of the portion any related Insurance
Proceeds or Liquidation Proceeds allocable as interest on such Mortgage Loan or
REO Mortgage Loan, as the case may be. The right to receive the Master Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Master Servicer's responsibilities and obligations under
this Agreement.
(b) The Master Servicer shall be entitled to receive the following
items as additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) to the extent allocable to any Mortgage Loan for a period that
it is or was a Performing Mortgage Loan, any Net Default Charges collected
on such Mortgage Loan;
(ii) 50% of any and all Net Assumption Fees, modification fees and
extension fees actually paid by a Borrower with respect to a Performing
Mortgage Loan;
(iii) 100% of any and all charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and
other loan processing fees actually paid by a Borrower with respect to a
Performing Mortgage Loan;
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(iv) 50% (or, if the Master Servicer rejects the proposed assumption
without involvement of the Special Servicer, 100%) of any and all Net
Assumption Application Fees actually paid by a Borrower with respect to a
Performing Mortgage Loan;
(v) any Prepayment Interest Excesses collected on the Mortgage
Loans; and
(vi) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Borrower under applicable law or under the related Mortgage).
To the extent that amounts described in clauses (ii), (iii) and (iv)
of the preceding paragraph are collected by the Special Servicer with respect to
Performing Mortgage Loans, the Special Servicer shall promptly pay such amounts
to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As
to each Specially Serviced Mortgage Loan and REO Mortgage Loan, for any
particular calendar month or applicable portion thereof, the Special Servicing
Fee shall accrue (on a 30/360 Basis) at the Special Servicing Fee Rate on the
same principal amount as interest accrues from time to time during such calendar
month (or portion thereof) on such Specially Serviced Mortgage Loan or is deemed
to accrue from time to time during such calendar month (or portion thereof) on
such REO Mortgage Loan, as the case may be. The Special Servicing Fee with
respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan shall cease
to accrue as of the date a Liquidation Event occurs in respect thereof or, in
the case of a Specially Serviced Mortgage Loan, as of the date it becomes a
Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be
payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each collection of interest (other than Additional Interest and
Default Interest) and principal received on such Mortgage Loan for so long as it
remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with
respect thereto or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee would become payable if and when such Mortgage
Loan again became a Corrected Mortgage Loan. If the Special Servicer is
terminated (other than for cause), including pursuant to Section 6.06, or
resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of Mortgage Loans that became
Corrected Mortgage Loans during the period that it acted as Special Servicer and
that were still Corrected Mortgage Loans at the time of such termination or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to
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which it receives any full or discounted payoff from the related Borrower or any
Liquidation Proceeds or Insurance Proceeds (other than in connection with the
purchase of any such Specially Serviced Mortgage Loan or REO Property by the
Master Servicer, the Special Servicer or a Controlling Class Certificateholder
pursuant to Section 3.18 or Section 9.01, or the purchase or replacement thereof
by Union Capital pursuant to the Union Capital Agreement or the purchase or
replacement thereof by a Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase and Sale Agreement). As to each such Specially Serviced Mortgage
Loan or REO Property, the Liquidation Fee shall be payable out of, and shall be
calculated by application of the Liquidation Fee Rate to, any such full or
discounted payoff, Liquidation Proceeds and/or Insurance Proceeds received or
collected in respect thereof (other than any portion of such payment or proceeds
that represents Additional Interest, Default Interest, a Prepayment Premium or a
Yield Maintenance Charge). The Liquidation Fee with respect to any such
Specially Serviced Mortgage Loan will not be payable if such Mortgage Loan
becomes a Corrected Mortgage Loan. Notwithstanding anything herein to the
contrary, no Liquidation Fee will be payable in connection with the receipt of,
or out of, Liquidation Proceeds collected as a result of the purchase or
substitution of any Specially Serviced Mortgage Loan or REO Property described
in the parenthetical to the first sentence of this paragraph.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive the following
items as additional special servicing compensation (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) to the extent allocable to any Mortgage Loan for the period that
it is or was a Specially Serviced Mortgage Loan or allocable to any REO
Mortgage Loan, any Net Default Charges collected on such Mortgage Loan or
REO Mortgage Loan;
(ii) any Net Assumption Fees, Net Assumption Application Fees,
modification fees, extension fees, charges for beneficiary statements or
demands and amounts collected for checks returned for insufficient funds
that are actually received on or with respect to Specially Serviced
Mortgage Loans or REO Mortgage Loans;
(iii) 50% of any Net Assumption Fees, modification fees and
extension fees that are actually paid by a Borrower with respect to a
Performing Mortgage Loan;
(iv) if the related assumption has been submitted to the Special
Servicer for review, 50% of any Net Assumption Application Fees that are
actually paid by a Borrower with respect to a Performing Mortgage Loan;
and
(v) interest or other income earned on deposits in the REO Account,
if established, in accordance with Section 3.06(b) (but only to the extent
of the Net Investment Earnings, if any, with respect to the REO Account
for each Collection Period).
To the extent that amounts described in clause (i) or (ii) of the
preceding paragraph are collected by the Master Servicer with respect to
Specially Serviced Mortgage Loans, the Master Servicer
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shall promptly pay such amounts to the Special Servicer and shall not be
required to deposit such amounts in the Collection Account pursuant to Section
3.04(a).
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due and owing to any of
Sub-Servicers retained by it and the premiums for any blanket policy or the
standby fee or similar premium for any master force place policy obtained by it
insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of the Collection Account, the
Servicing Accounts, the Reserve Accounts or the REO Account, and neither the
Master Servicer nor the Special Servicer shall be entitled to reimbursement for
any such expense incurred by it except as expressly provided in this Agreement.
If the Master Servicer is required to make any Servicing Advance hereunder at
the discretion of the Special Servicer in accordance with Section 3.19 or
otherwise, the Special Servicer shall promptly provide the Master Servicer with
such documentation regarding the subject Servicing Advance as the Master
Servicer may reasonably request.
(f) If the Master Servicer or Special Servicer is required under
this Agreement to make a Servicing Advance, but neither does so within ten days
after such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure, as applicable, to the
Master Servicer and the Special Servicer. If such Advance is not made by the
Master Servicer or the Special Servicer within three Business Days after such
notice, then (subject to Section 3.11(h) below) the Trustee or a Fiscal Agent
appointed thereby shall make such Advance. If any Fiscal Agent makes any such
Servicing Advance, the Trustee shall be deemed not to be in default under this
Agreement for failing to do so.
(g) The Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), and compounded monthly, for so long
as such Servicing Advance is outstanding. Such compound interest shall be
payable: (i) at any time, out of Default Charges collected on or in respect of
the particular Mortgage Loan or REO Property as to which such Servicing Advance
relates; and (ii) to the extent that such Default Charges are insufficient, but
only with respect to that portion of the related Servicing Advance that has been
or is being reimbursed pursuant to this Agreement, out of general collections on
the Mortgage Loans and REO Properties on deposit in the Collection Account. The
Master Servicer shall reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as appropriate, for any Servicing Advance made by any such Person
as soon as practicable after funds available for such purpose are deposited in
the Collection Account.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent
shall be required to make any Servicing Advance that it determines in its
reasonable, good faith judgment would constitute a Nonrecoverable Servicing
Advance. The determination by any Person with an obligation hereunder to make
Servicing Advances that it has made a Nonrecoverable Servicing Advance or that
any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be made by such Person in its reasonable, good faith
judgment and shall be evidenced by an Officer's Certificate delivered promptly
to the Depositor and the Trustee (unless it is the Person making such
determination), which shall provide a copy thereof to the Controlling Class
Representative, setting forth the basis for such determination, accompanied by a
copy of an Appraisal of the related Mortgaged Property or REO Property performed
within the 12 months preceding such determination,
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and further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing, the Trustee and
any Fiscal Agent shall be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Servicing Advance, and the Master Servicer
and the Special Servicer shall each be entitled to conclusively rely on any
determination of nonrecoverability that may have been made by the other such
party with respect to a particular Servicing Advance. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered promptly to the Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Master Servicer and the
Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Collection Account any servicing expense that, if paid by the Master Servicer or
the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole), as evidenced by an
Officer's Certificates delivered promptly to the Depositor and the Trustee,
which shall provide a copy thereof to the Controlling Class Representative,
setting forth the basis for such determination and accompanied by any
information that such Person may have obtained that supports such determination.
A copy of any such Officer's Certificate (and accompanying information) of the
Master Servicer shall also be delivered promptly to the Special Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Mortgage Loan becomes a
Specially Serviced Mortgage Loan and at least once per calendar year thereafter
for so long as such Mortgage Loan remains a Specially Serviced Mortgage Loan or
if such Mortgaged Property becomes an REO Property; provided that the Special
Servicer shall be entitled to reimbursement of the reasonable and direct
out-of-pocket expenses incurred by it in connection therewith as Servicing
Advances. Beginning in 2000, the Master Servicer shall at its expense perform or
cause to be performed an inspection of each Mortgaged Property at least once per
calendar year (or, in the case of the CTL Loan (for so long as the long-term
unsecured debt obligations of the Credit Tenant are rated at least "Baa3" by
Moody's) and each Mortgage Loan with an unpaid principal balance of under
$2,000,000, once every two years), if the Special Servicer has not already done
so during that period pursuant to the preceding sentence. The Master Servicer
and the Special Servicer shall each prepare a written report of each such
inspection performed by it or on its behalf that sets forth in detail the
condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or Special Servicer, as applicable, is aware, (ii) any
change in the condition, occupancy or value of the Mortgaged Property that the
Master Servicer or the Special Servicer, as applicable, in accordance with the
Servicing Standard, considers material, or (iii) any waste committed on the
Mortgaged
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Property that the Master Servicer or the Special Servicer, as the case may be,
in accordance with the Servicing Standard, considers material. The Master
Servicer and the Special Servicer shall each deliver to the Trustee, the
Depositor and each other a copy (or image in suitable electronic media) of each
such written report prepared by it within 60 days of completion of the related
inspection. The Trustee shall, upon request and to the extent such items have
been delivered to the Trustee by the Master Servicer, deliver to the
Underwriter, the related Mortgage Loan Seller, the Controlling Class
Representative, any Certificateholder or, to the extent the Trustee has in
accordance with Section 5.06(b) confirmed the Ownership Interest in Certificates
held thereby, any Certificate Owner, a copy (or image in suitable electronic
media) of each such written report prepared by the Master Servicer or the
Special Servicer.
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Master Servicer, in the case of each Performing Mortgage
Loan, shall make reasonable efforts to collect promptly from each related
Borrower quarterly and annual operating statements, budgets and rent rolls of
the related Mortgaged Property, and financial statements of such Borrower,
whether or not delivery of such items is required pursuant to the terms of the
related Mortgage. In addition, the Special Servicer shall cause quarterly and
annual operating statements, budgets and rent rolls to be regularly prepared in
respect of each REO Property and shall collect all such items promptly following
their preparation. The Master Servicer and the Special Servicer shall each
deliver copies of all of the foregoing items so collected thereby to the
Trustee, the Depositor and each other, in each case within 60 days of its
receipt thereof. The Trustee shall, upon request, deliver copies of the
foregoing items to the Underwriter, the Controlling Class Representative, the
related Mortgage Loan Seller and any Certificateholder or, to the extent the
Trustee has in accordance with Section 5.06(b) confirmed the Ownership Interest
in Certificates held thereby, any Certificate Owner, a copy (or image in
suitable electronic media) of each such written report prepared by the Master
Servicer or the Special Servicer.
Within 45 days after receipt by the Master Servicer, as to
Performing Mortgage Loans, and within 20 days after receipt by the Special
Servicer, as to Specially Serviced Mortgage Loans, of any annual operating
statements or rent rolls with respect to any Mortgaged Property or REO Property,
the Master Servicer or the Special Servicer, as applicable, shall, based upon
such operating statements or rent rolls, prepare (or, if previously prepared,
update) the written analysis of operations (the "Operating Statement Analysis
Report"), and the Special Servicer shall remit each Operating Statement Analysis
Report prepared by it, together with the underlying operating statements and
rent rolls, to the Master Servicer in a format reasonably acceptable to the
Master Servicer. All Operating Statement Analysis Reports shall be maintained by
the Master Servicer with respect to each Mortgaged Property and REO Property,
and the Master Servicer shall forward copies thereof (in each case, promptly
following the initial preparation and each material revision thereof) to the
Trustee and the Special Servicer, together with the related operating statements
or rent rolls. The Trustee shall, upon request and to the extent such items have
been delivered to the Trustee by the Master Servicer, deliver to the
Underwriter, the related Mortgage Loan Seller, the Controlling Class
Representative, any Certificateholder or, to the extent the Trustee has in
accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, any Certificate Owner, a copy of such Operating
Statement Analysis (or update thereof) and the related operating statement or
rent rolls. The Master Servicer shall maintain an Operating Statement Analysis
Report with respect to each Mortgaged Property and REO Property. Each such
Operating Statement Analysis Report shall be substantially in the form of
Exhibit E-8 attached hereto (or, at the discretion of the Master Servicer,
provided that no less information is provided than is set forth in Exhibit E-8,
in a CMSA format).
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Within 45 days after receipt by the Master Servicer or 20 days after
receipt by the Special Servicer of any annual operating statements with respect
to any Mortgaged Property or REO Property, as applicable, each of the Master
Servicer and the Special Servicer shall prepare or update (and, in the case of
the Special Servicer, forward within such 20-day period to the Master Servicer
in an electronic format reasonably acceptable to the Master Servicer) an NOI
Adjustment Worksheet for such Mortgaged Property or REO Property (with the
annual operating statements attached thereto as an exhibit).
(c) Not later than 12:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer and the
Controlling Class Representative the following reports (or data files relating
to reports of the Master Servicer) with respect to the Specially Serviced
Mortgage Loans and any REO Properties, providing the required information as of
such Determination Date: (i) a CMSA Property File; and (ii) a CMSA Loan Periodic
Update File. At or before 12:00 p.m. (New York City time) on the first Business
Day following each Determination Date, the Special Servicer shall prepare and
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties,
providing the information required of the Special Servicer in an electronic
format reasonably acceptable to the Master Servicer as of such Determination
Date: (i) a Delinquent Loan Status Report; (ii) a Comparative Financial Status
Report; (iii) an Historical Loss Estimate Report; (iv) an Historical Loan
Modification Report; and (v) an REO Status Report.
(d) Not later than 3:30 p.m. (New York City time) on the second
Business Day after each Determination Date, the Master Servicer shall prepare
(if and to the extent necessary) and deliver or cause to be delivered to the
Trustee data files relating to the following reports: (i) to the extent received
at the time required, the most recent Delinquent Loan Status Report, Historical
Loss Estimate Report, Historical Loan Modification Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(c); (ii) the most
recent CMSA Property File, CMSA Loan Periodic Update File and Comparative
Financial Status Report (in each case combining the reports prepared by the
Special Servicer and the Master Servicer); and (iii) a Watch List Report with
information that is current as of such Determination Date.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee the reports set forth in Section 3.12(d),
in an electronic format reasonably acceptable to the Special Servicer, the
Master Servicer and the Trustee. The Master Servicer may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer pursuant
to Section 3.12(b) and Section 3.12(c). The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(d). In the case of information or reports to be furnished by the
Master Servicer to the Trustee pursuant to Section 3.12(d), to the extent that
such information or reports are, in turn, based on information or reports to be
provided by the Special Servicer pursuant to Section 3.12(b) or Section 3.12(c)
and to the extent that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), the Master
Servicer shall have no obligation to provide such information or reports to the
Trustee until it has received the requisite information or reports from the
Special Servicer, and the Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(d) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(b) or Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not
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constitute a breach of this Section 3.12 to the extent the Master Servicer or
Special Servicer so fails because such disclosure, in the reasonable belief of
the Master Servicer or the Special Servicer as the case may be, would violate
any applicable law or any provision of a Mortgage Loan document prohibiting
disclosure of information with respect to the Mortgage Loans or Mortgaged
Properties or would constitute a waiver of the attorney-client privilege on
behalf of the Trust. The Master Servicer and Special Servicer may disclose any
such information or any additional information to any Person so long as such
disclosure is consistent with applicable law and the Servicing Standard. The
Master Servicer or the Special Servicer may affix to any information provided by
it any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the Cut-Off Date or the most recent earlier date
for which such data is available) contemplated by the CMSA Loan Set-up File, the
CMSA Loan Periodic Update File, the Operating Statement Analysis Report and the
CMSA Property File.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Depositor, the Underwriter, the Controlling Class
Representative and each other, on or before March 15 of each year, beginning in
2000, an Officer's Certificate (the "Annual Performance Certification") stating,
as to the signer thereof, that (i) a review of the activities of the Master
Servicer or the Special Servicer, as the case may be, during the preceding
calendar year and of its performance under this Agreement has been made under
such officer's supervision, (ii) to the best of such officer's knowledge, based
on such review, the Master Servicer or the Special Servicer, as the case may be,
has fulfilled all of its obligations under this Agreement in all material
respects throughout such year (or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof), and (iii) the Master Servicer or the
Special Servicer, as the case may be, has received no notice regarding the
qualification, or challenging the status, of any REMIC Pool as a REMIC or either
Grantor Trust Pool as a Grantor Trust from the IRS or any other governmental
agency or body (or, if it has received any such notice, specifying the details
thereof); provided that neither the Master Servicer nor the Special Servicer
shall be required to deliver its Annual Performance Certification until April 30
in any given year after 2000 unless it has received written confirmation from
the Depositor by January 31 of that year that a Report on Form 10-K is required
to be filed in respect of the Trust for the preceding calendar year (a copy of
which written confirmation shall be forwarded concurrently by the Depositor to
the Trustee).
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning in 2000, each of the
Master Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriter and each other, to the
effect that such firm has examined the servicing operations of the Master
Servicer or the Special Servicer, as the case may be, for the previous calendar
year and that, on the basis of such examination, conducted substantially in
compliance with USAP, such firm confirms that the Master Servicer or the Special
Servicer, as the case may be, has complied during such previous calendar year
with the minimum servicing standards identified in USAP in all material
respects, except for such significant exceptions or errors in records that, in
the opinion of such firm, USAP requires it to report; provided that neither the
Master Servicer nor the Special Servicer shall be required to cause the
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delivery of its Annual Accountants' Report until April 30 in any given year
after 2000 unless it has received written confirmation from the Depositor by
January 31 of that year that a Report on Form 10-K is required to be filed in
respect of the Trust for the preceding calendar year (a copy of which written
confirmation shall be forwarded concurrently by the Depositor to the Trustee).
In rendering its report such firm may rely, as to matters relating to the direct
servicing of securitized commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those sub-servicers.
The Master Servicer and the Special Servicer will each reasonably
cooperate with the Depositor in providing any other form of accountants' reports
as may be required by the Commission in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act, and the
reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, any Fiscal Agent, the Depositor, the Underwriter, the Mortgage Loan
Sellers, each Rating Agency and the Controlling Class Representative, and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access to
any records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law,
the terms of the Mortgage Loan documents or contract entered into prior to the
Closing Date or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded without charge but only upon reasonable prior written request
and during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it. The Master Servicer and
the Special Servicer shall each be entitled to affix a reasonable disclaimer to
any information provided by it for which it is not the original source (without
suggesting liability on the part of any other party hereto).
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust, shall sell
any REO Property by the end of the third calendar year following the year in
which the Trust acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than 60 days prior to the expiration of such liquidation period, and is granted
an extension of time (an "REO Extension") by the IRS to sell such REO Property
or (ii) obtains for the Trustee and the Tax Administrator an Opinion of Counsel,
addressed to the Trustee and the Tax Administrator, to the effect that the
holding by the Trust of such REO Property subsequent to the end of the third
calendar year following the year in which such acquisition occurred will not
result in an Adverse REMIC Event with respect to any REMIC Pool. Regardless of
whether the Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the Special
Servicer shall act in accordance with the Servicing Standard to liquidate such
REO Property on a timely basis. If the Special Servicer is granted such REO
Extension or obtains such Opinion of Counsel, the Special Servicer shall sell
such REO Property within such extended period as is permitted by such REO
Extension or contemplated by such Opinion of Counsel,
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as the case may be. Any expense incurred by the Special Servicer in connection
with its applying for and being granted the REO Extension contemplated by clause
(i) of the third preceding sentence or its obtaining the Opinion of Counsel
contemplated by clause (ii) of the third preceding sentence, shall be covered
by, and be reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders, for the retention of revenues and
other proceeds derived from each REO Property. Each account that constitutes the
REO Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, upon receipt, all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as Additional Special Servicing
Compensation, interest and investment income earned in respect of amounts held
in the REO Account as provided in Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to the REO Account for any
Collection Period). The Special Servicer shall give notice to the other parties
hereto of the location of the REO Account when first established and of the new
location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within two Business Days
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the Collection Account or deliver to the
Master Servicer (which shall deposit such amounts into the Collection Account)
the aggregate of all amounts received in respect of each REO Property during
such Collection Period, net of any withdrawals made out of such amounts pursuant
to the preceding sentence; provided that the Special Servicer may retain in the
REO Account such portion of such proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, maintenance and disposition of the related REO Property (including the
creation of a reasonable reserve for repairs, replacements, necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items reasonably expected to be incurred during the
following 12-month period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income that
would be derived from such property if it were acquired by the Trust. If the
Special Servicer determines from such review that:
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(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or to the tax imposed on
"prohibited transactions" under Section 860F of the Code (either such tax
referred to herein as an "REO Tax"), such Mortgaged Property may be
Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided that in the judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, it is
commercially reasonable) so lease or otherwise operate such REO Property;
or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust incurring or possibly incurring an REO Tax
on income from such property, the Special Servicer shall deliver to the
Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income and good faith estimates of the amount of income from
each such source. Within a reasonable period of time after receipt of such
plan, the Tax Administrator shall consult with the Special Servicer and
shall advise the Special Servicer of the Trust's federal income tax
reporting position with respect to the various sources of income that the
Trust would derive under the Proposed Plan. In addition, the Tax
Administrator shall (to the maximum extent reasonably possible) advise the
Special Servicer of the estimated amount of taxes that the Trust would be
required to pay with respect to each such source of income. After
receiving the information described in the two preceding sentences from
the Tax Administrator, the Special Servicer shall either (A) implement the
Proposed Plan (after acquiring the respective Mortgaged Property as REO
Property) or (B) manage and operate such property in a manner that would
not result in the imposition of an REO Tax on the income derived from such
property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be in accordance with the Servicing Standard. Neither
the Special Servicer nor the REMIC Administrator shall be liable to the
Certificateholders, the Trust, the other parties hereto or each other for errors
in judgment made in good faith in the exercise of their discretion while
performing their respective responsibilities under this Section 3.17(a). Nothing
in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage
Loan or REO Property pursuant to the terms and subject to the conditions of
Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its disposition and sale in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or, except as
contemplated by Section 3.17(a), result in the receipt by any REMIC Pool of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code or in an Adverse REMIC Event with respect to any REMIC Pool. Except
as contemplated by Section 3.17(a), the Special Servicer shall not enter into
any lease, contract or other agreement that causes the Trust to receive, and
(unless required to do so under any lease, contract
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or agreement to which the Special Servicer or the Trust may become a party or
successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other
similar exercise of a creditor's rights or remedies with respect to a Mortgage
Loan) shall not cause or allow the Trust to receive, any "net income from
foreclosure property" that is subject to taxation under the REMIC Provisions.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are consistent
with the Servicing Standard and, consistent therewith, shall withdraw from the
REO Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes contemplated by the preceding
sentence with respect to such REO Property, the Master Servicer shall, at the
direction of the Special Servicer, advance such amounts as are necessary for
such purposes unless the Master Servicer or the Special Servicer determines, in
its reasonable, good faith judgment, that such advances would, if made, be
Nonrecoverable Servicing Advances; provided, however, that the Master Servicer
may in its sole discretion make any such Servicing Advance without regard to
recoverability if it is a necessary fee or expense incurred in connection with
the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust) shall be reasonable and customary in consideration
of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including those listed in Section 3.17(b)
above, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
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(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable as, a Servicing Advance.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly provided
in or contemplated by Sections 2.02, 2.03 and 9.01.
(b) If the Special Servicer has determined, in its reasonable, good
faith judgment, that any Defaulted Mortgage Loan will become subject to
foreclosure proceedings and that the sale of such Mortgage Loan under the
circumstances provided in this Section 3.18 is in accordance with the Servicing
Standard, then the Special Servicer shall promptly so notify in writing the
Trustee and the Master Servicer, and the Trustee shall, within five days after
receipt of such notice, so notify all the Controlling Class Certificateholders.
Any single Controlling Class Certificateholder or group of Controlling Class
Certificateholders may, at its or their option, within ten days after receipt of
such notice, purchase any Defaulted Mortgage Loan out of the Trust Fund at a
cash price equal to the applicable Purchase Price; provided that, if more than
one Controlling Class Certificateholder or group of Controlling Class
Certificateholders desire to purchase such Defaulted Mortgage Loan, preference
shall be given to the Controlling Class Certificateholder or group of
Controlling Class Certificateholders with the largest Percentage Interest in the
Controlling Class. The Purchase Price for any Defaulted Mortgage Loan purchased
under this Section 3.18(b) shall be deposited into the Collection Account, and
the Trustee, upon receipt of an Officer's Certificate from the Master Servicer
to the effect that such deposit has been made, shall release or cause to be
released to the Certificateholder(s) effecting such purchase (or to its or their
designee) the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in such
Certificateholder(s) ownership of such Mortgage Loan (subject to any rights of
the applicable Designated Sub-Servicer to sub-service such Mortgage Loan as set
forth under the related Designated Sub-Servicer Agreement). In connection with
any such purchase, the Special Servicer shall deliver the related Servicing File
to the Certificateholder(s) effecting such purchase (or to its or their
designee).
(c) If none of the Controlling Class Certificateholders has
purchased any Defaulted Mortgage Loan described in the first sentence of Section
3.18(b) within ten days of such Holders' having received notice in respect
thereof pursuant to Section 3.18(b) above, then the Trustee shall within five
days of the end of such ten-day period send notice to the Master Servicer and
the Special Servicer that such Mortgage Loan was not purchased by such
Certificateholder(s), and either the Special Servicer or the Master Servicer (in
that order of priority) may, at its option, within ten days after receipt of
such notice, purchase (or designate an Affiliate thereof to purchase) such
Mortgage Loan out of the Trust Fund at a cash price equal to the Purchase Price.
The Purchase Price for any such Mortgage Loan purchased under this Section
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3.18(c) shall be deposited into the Collection Account, and the Trustee, upon
receipt of an Officer's Certificate from the Master Servicer to the effect that
such deposit has been made, shall release or cause to be released to the Master
Servicer or the Special Servicer (or the designated Affiliate thereof), as
applicable, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Master Servicer or
the Special Servicer (or the designated Affiliate thereof), as applicable, the
ownership of such Mortgage Loan (subject to any rights of the applicable
Designated Sub-Servicer to sub-service such Mortgage Loan as set forth under the
related Designated Sub-Servicer Agreement). In connection with any such purchase
by the Master Servicer (or any designated Affiliate thereof), the Special
Servicer shall deliver the related Servicing File to the Master Servicer (or any
designated Affiliate thereof). For purposes of the other sections of this
Agreement, any purchase of a Defaulted Mortgage Loan by a designated Affiliate
of the Master Servicer or Special Servicer pursuant to this Section 3.18(c)
shall be deemed a purchase of such Defaulted Mortgage Loan by the Master
Servicer or the Special Servicer, as applicable.
(d) Subject to Section 3.24, the Special Servicer may offer to sell
any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b)
or Section 3.18(c) above, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would be in the best
economic interests of the Certificateholders (as a collective whole). Such offer
shall be made in a commercially reasonable manner (which, for purposes hereof,
includes an offer to sell without representation or warranty other than
customary warranties of title and condition, if liability for breach thereof is
limited to recourse against the Trust) for a period of not less than ten days.
Subject to Section 3.18(h) and Section 3.24, the Special Servicer shall accept
the highest cash bid received from any Person that constitutes a fair price for
such Mortgage Loan. In the absence of any bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage
Loan in accordance with Section 3.09.
The Special Servicer shall use its best efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a fair
price within the time period provided for by Section 3.16(a). Subject to Section
3.18(h) and Section 3.24, the Special Servicer shall accept the first (and, if
multiple bids are received by a specified bid date, the highest) cash bid
received from any Person that constitutes a fair price (determined pursuant to
Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably
believes that it will be unable to realize a fair price (determined pursuant to
Section 3.18(e) below) for any REO Property within the time constraints imposed
by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon
such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances.
The Special Servicer shall give the Trustee, the Master Servicer and
the Controlling Class Representative not less than five Business Days' prior
written notice of its intention to sell any Defaulted Mortgage Loan or REO
Property pursuant to this Section 3.18(d). No Interested Person shall be
obligated to submit a bid to purchase any such Mortgage Loan or REO Property,
and notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Mortgage Loan or REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash bid is
from the Special Servicer or an Affiliate thereof, by the Trustee. In
determining whether any bid received from the Special Servicer or an Affiliate
thereof represents a fair price for any such Mortgage Loan or REO Property, the
Trustee shall be supplied with and shall be entitled to rely on the most
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recent Appraisal in the related Servicing File conducted in accordance with this
Agreement within the preceding 12-month period (or, in the absence of any such
Appraisal or if there has been a material change at the subject property since
any such Appraisal, on a new Appraisal to be obtained by the Special Servicer
(the cost of which shall be covered by, and be reimbursable as, a Servicing
Advance)). The appraiser conducting any such new Appraisal shall be a Qualified
Appraiser that is (i) selected by the Special Servicer if neither the Special
Servicer nor any Affiliate thereof is bidding with respect to a Defaulted
Mortgage Loan or REO Property and (ii) selected by the Trustee if either the
Special Servicer or any Affiliate thereof is so bidding. Where any Interested
Person is among those bidding with respect to a Defaulted Mortgage Loan or REO
Property, the Special Servicer shall require that all bids be submitted to it
(or, if the Special Servicer or an Affiliate thereof is bidding, shall be
submitted by it to the Trustee) in writing and be accompanied by a refundable
deposit of cash in an amount equal to 5% of the bid amount. In determining
whether any bid from a Person other than the Special Servicer or an Affiliate
thereof constitutes a fair price for any such Mortgage Loan or REO Property, the
Special Servicer shall take into account the results of any Appraisal or updated
Appraisal that it or the Master Servicer may have obtained in accordance with
this Agreement within the preceding 12-month period, and any Qualified Appraiser
shall be instructed to take into account, as applicable, among other factors,
the period and amount of any delinquency on the affected Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any such Mortgage Loan or REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18, no cash
bid from the Special Servicer or any Affiliate thereof shall constitute a fair
price for any Defaulted Mortgage Loan or REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.18(e), that such bid constitutes a fair
price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special
Servicer shall be unconditional; and, if accepted, the Defaulted Mortgage Loan
or REO Property shall be transferred to the Special Servicer without recourse,
representation or warranty other than customary representations as to title
given in connection with the sale of a mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating with independent
third parties and taking any other action necessary or appropriate in connection
with the sale of any Defaulted Mortgage Loan or REO Property, and the collection
of all amounts payable in connection therewith. In connection therewith, the
Special Servicer may charge prospective bidders, and may retain, fees that
approximate the Special Servicer's actual costs in the preparation and delivery
of information pertaining to such sales or evaluating bids without obligation to
deposit such amounts into the Collection Account. Any sale of a Defaulted
Mortgage Loan or any REO Property shall be final and without recourse (except
for warranties of title and condition contemplated by Section 3.18(d)) to the
Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, neither the Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
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(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only.
(h) Notwithstanding any of the foregoing paragraphs of this Section
3.18, but subject to Section 3.24, the Special Servicer shall not be obligated
to accept the highest cash bid if the Special Servicer determines, in accordance
with the Servicing Standard, that rejection of such bid would be in the best
interests of the Certificateholders (as a collective whole), and the Special
Servicer may accept a lower cash bid (from any Person other than itself or an
Affiliate) if it determines, in accordance with the Servicing Standard, that
acceptance of such bid would be in the best interests of the Certificateholders
(as a collective whole) (for example, if the prospective buyer making the lower
bid is more likely to perform its obligations or the terms (other than price)
offered by the prospective buyer making the lower bid are more favorable).
SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account by 2:00 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, an amount
(a "Compensating Interest Payment") equal to the lesser of (i) the aggregate
amount of Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received in respect of the Mortgage Pool during the most recently
ended Collection Period, and (ii) the aggregate of (A) that portion of its
Master Servicing Fees for the related Collection Period that is, in the case of
each and every Mortgage Loan and REO Mortgage Loan for which such Master
Servicing Fees are being paid in such Collection Period, calculated at 0.02% per
annum, and (B) all Prepayment Interest Excesses received by the Master Servicer
during the most recently ended Collection Period.
(b) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, out of the Master Servicer's own funds, to reimburse the Special
Servicer for any Servicing Advances (other than Nonrecoverable Servicing
Advances) made by but not previously reimbursed to the Special Servicer,
together with interest thereon at the Reimbursement Rate from the date made to,
but not including, the date of reimbursement. Such reimbursement and any
accompanying payment of interest shall be made within ten days of the request
therefor by wire transfer of immediately available funds to an account
designated by the Special Servicer. Upon the Master Servicer's reimbursement to
the Special Servicer of any Servicing Advance and payment to the Special
Servicer of interest thereon, all in accordance with this Section 3.19(b), the
Master Servicer shall for all purposes of this Agreement be deemed to have made
such Servicing Advance at the same time as the Special Servicer actually made
such Servicing Advance, and accordingly, the Master Servicer shall be entitled
to reimbursement for such Servicing Advance, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same
manner and to the same extent as the Master Servicer would otherwise have been
entitled if it had actually made such Servicing Advance at the time the Special
Servicer did.
Notwithstanding anything to the contrary contained in any other
Section of this Agreement, if the Special Servicer is required under this
Agreement (but subject to the following paragraph), to make any Servicing
Advance but does not desire to do so, the Special Servicer may, in its sole
discretion, request that the Master Servicer make such Servicing Advance. Any
such request shall be made, in writing, in a timely manner that does not
adversely affect the interests of any Certificateholder (and, in any event, to
the extent reasonably practicable, at least five Business Days in advance of the
date on which the subject Servicing Advance is to be made) and shall be
accompanied by such information and documentation regarding the subject
Servicing Advance as the Master Servicer may reasonably request; provided,
however, that the
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Special Servicer shall not be entitled to make such a request (other than for
emergency advances) more frequently than once per calendar month (although such
request may relate to more than one Servicing Advance). The Master Servicer
shall have the obligation to make any such Servicing Advance (other than a
Nonrecoverable Servicing Advance) that it is so requested by the Special
Servicer to make, within five Business Days of the Master Servicer's receipt of
such request. If the request is timely and properly made, the Special Servicer
shall be relieved of any obligations with respect to a Servicing Advance that it
so requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a) and 3.11(g), at the same time, in the same manner and to the
same extent as the Master Servicer is entitled with respect to any other
Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b),
the Master Servicer shall not be required to reimburse the Special Servicer for,
or to make at the direction of the Special Servicer, any Servicing Advance if
the Master Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
The Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the earliest of (i) the date on which any
Mortgage Loan becomes a Modified Mortgage Loan, (ii) the date on which the
Borrower under any Mortgage Loan becomes the subject of bankruptcy, insolvency
or similar proceedings, (iii) the 60th day following the occurrence of any
uncured delinquency in Monthly Payments with respect to any Mortgage Loan, (iv)
the date on which a receiver is appointed and continues in such capacity in
respect of the Mortgaged Property securing any Mortgage Loan, and (v) the date
on which the Mortgaged Property securing any Mortgage Loan becomes an REO
Property (each such Mortgage Loan, until it ceases to be such in accordance with
the following paragraph, a "Required Appraisal Loan"), the Special Servicer
shall obtain an Appraisal of the related Mortgaged Property, unless an Appraisal
thereof had previously been obtained within the preceding 12-month period, and
shall deliver a copy thereof to the Trustee, the Master Servicer and the
Controlling Class Representative. The cost of such Appraisal shall be covered
by, and be reimbursable as, a Servicing Advance. Based on such Appraisal, the
Special Servicer shall determine and report to the Trustee the then applicable
Appraisal Reduction Amount, if any, with respect to the subject Required
Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains a
Required Appraisal Loan, the Special Servicer shall, within 30 days of each
anniversary of such loan's having become a Required Appraisal Loan, obtain or
conduct an update of the prior Appraisal (the cost of which will be covered by,
and be reimbursable as, a Servicing Advance); and, upon receipt, based upon such
update, the Special Servicer shall redetermine and report to the Trustee the
then applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan. A Mortgage Loan will cease to be a Required Appraisal
Loan if and when such Mortgage Loan has become a Corrected Mortgage Loan and has
remained current for at least three consecutive Monthly Payments, and no other
Servicing Transfer Event has occurred with respect thereto during the preceding
three months.
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At any time that any Appraisal Reduction Amount exists with respect
to any Required Appraisal Loan, the Controlling Class Representative may, at its
own expense, obtain and deliver to the Master Servicer, the Special Servicer and
the Trustee an Appraisal of the related Mortgaged Property or REO Property, as
the case may be. Upon the written request of the Controlling Class
Representative, the Special Servicer shall recalculate the Appraisal Reduction
Amount in respect of such Required Appraisal Loan based on the Appraisal
delivered by the Controlling Class Representative and notify the Trustee, the
Master Servicer and the Controlling Class Representative of such recalculated
Appraisal Reduction Amount.
(d) The Master Servicer shall pay, without any right of
reimbursement therefor, the post-Closing Date fees of the Rating Agencies for
ongoing surveillance of the Rated Certificates, but shall not be required to pay
without reimbursement the fees charged by any Rating Agency for a (i)
confirmation as to the lack of an Adverse Rating Event with respect to any Class
of Rated Certificates or (ii) in connection with any other particular matter.
(e) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
or Yield Maintenance Charge, as the case may be, payable under the terms of the
related Mortgage Note. Upon written request of any Certificateholder, the Master
Servicer shall disclose to such Certificateholder its calculation of any such
Prepayment Premium or Yield Maintenance Charge.
(f) The Master Servicer shall not permit defeasance of any Mortgage
Loan (x) on or before the earliest date on which defeasance is permitted under
the terms of such Mortgage Loan, or (y) to the extent consistent with the terms
of such Mortgage Loan, unless (i) the defeasance collateral consists of U.S.
Treasury obligations, (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event in respect of any REMIC
Pool, (iii) the Master Servicer has notified the Rating Agencies, (iv) the
Master Servicer has confirmed that such defeasance will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates (provided that the
requirement to obtain such confirmation will be a precondition to the defeasance
only if the Master Servicer is able under the related Mortgage Loan documents
and applicable law to prevent the defeasance if such confirmation is not
obtained and the subject Mortgage Loan represents at least 2.0% of the then
aggregate Stated Principal Balance of the Mortgage Pool), and (v) the Master
Servicer has requested and received from the related Borrower (A) an Opinion of
Counsel generally to the effect that the Trustee will have a perfected, first
priority security interest in such defeasance collateral and (B) written
confirmation from a firm of Independent accountants stating that payments made
on such defeasance collateral in accordance with the terms thereof will be
sufficient to pay the subject Mortgage Loan in full on or before its Stated
Maturity Date (or, in the case of an ARD Loan, on or before its Anticipated
Repayment Date) and to timely pay each Monthly Payment scheduled to be due prior
thereto but after the defeasance; provided that, if under the terms of the
related Mortgage Loan documents, the related Borrower delivers cash to purchase
the defeasance collateral rather than the defeasance collateral itself, the
Master Servicer shall purchase the U.S. Treasury obligations contemplated by the
related Mortgage Loan documents. Subsequent to the second anniversary of the
Startup Day for the REMIC Pool that holds the subject Mortgage Loan, to the
extent that the Master Servicer can, in accordance with the related Mortgage
Loan documents, require defeasance of any Mortgage Loan in lieu of accepting a
prepayment of principal thereunder, including a prepayment of principal
accompanied by a Prepayment Premium or Yield Maintenance Charge, the Master
Servicer shall, to the extent it is consistent with the Servicing Standard,
require such defeasance, provided that the conditions set forth in clauses (i)
through (v) of the preceding sentence have been satisfied. Any reasonable
out-of-pocket expense incurred by the Master Servicer pursuant to this Section
3.19(f) shall be paid by the Borrower of the defeased
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Mortgage Loan pursuant to the related Mortgage, Mortgage Note or other pertinent
document, if so allowed by the terms of such documents (and, if the Master
Servicer reasonably determines that it cannot recover such expenses from the
Borrower, it shall notify the other parties hereto and the Rating Agencies and
such expenses shall constitute a Servicing Advance). Notwithstanding the
foregoing, if at any time, a court with jurisdiction in the matter shall hold
that the related Borrower may obtain a release of the subject Mortgaged Property
but is not obligated to deliver the full amount of the defeasance collateral
contemplated by the related Mortgage Loan documents (or cash sufficient to
purchase such defeasance collateral), then the Master Servicer shall (i) if
consistent with such court holding and the related Mortgage Loan documents,
refuse to allow the defeasance of the Mortgage Loan or (ii) if the Master
Servicer cannot so refuse and if the related Borrower has delivered cash to
purchase the defeasance collateral, the Master Servicer shall either (A) buy
such defeasance collateral or (B) prepay the Mortgage Loan, in either case, in
accordance with the Servicing Standard.
(g) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Borrower under a Ground Lease, promptly
(and in any event within 45 days of the Closing Date) notify the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement and inform such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to the Master Servicer.
(h) With respect to each Designated ARD Loan, to the extent that the
related Mortgage Loan Seller has not on or before the Closing Date delivered to
the related Borrower a waiver of the accrual of Additional Interest to the
extent accrued at an Additional Interest Rate in excess of 2.0% per annum, the
Master Servicer shall deliver, on or before the 90th day following the Closing
Date, such a waiver on behalf of the Trust Fund as the holder of such Designated
ARD Loan.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (as to Specially Serviced Mortgage Loans)
and, to the limited extent permitted below, the Master Servicer (as to
Performing Mortgage Loans) each may (consistent with the Servicing Standard)
agree to any modification, waiver or amendment of any term of, extend the
maturity of, defer or forgive interest (including Default Interest and
Additional Interest) on and principal of, defer or forgive late payment charges,
Prepayment Premiums and Yield Maintenance Charges on, permit the release,
addition or substitution of collateral securing, and/or permit the release,
addition or substitution of the Borrower on or any guarantor of, any Mortgage
Loan it is required to service and administer hereunder, subject, however, to
Sections 3.08 and 3.24 and, further to each of the following limitations,
conditions and restrictions:
(i) other than as provided in Sections 2.03(a), 3.02, 3.08, 3.19(h)
and 3.20(g), the Master Servicer shall not agree to any modification,
waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a) with respect to, any Mortgage Loan
without the consent of the Special Servicer (it being understood and
agreed that (A) the Master Servicer shall promptly provide the Special
Servicer with all information that the Special Servicer may reasonably
request in order to withhold or grant any such consent, (B) the Special
Servicer (for no additional compensation) shall decide whether to withhold
or grant such consent in accordance with the Servicing Standard and (C) if
any such consent has not been expressly denied within ten Business Days of
the Special Servicer's receipt from the Master Servicer of all information
reasonably
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requested thereby in order to make an informed decision, such consent
shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(f), the
Special Servicer shall not, in the case of any Specially Serviced Mortgage
Loan, agree to (or, in the case of any Performing Mortgage Loan, consent
to the Master Servicer's agreeing to) any modification, waiver or
amendment of any term of, or, in the case of any Specially Serviced
Mortgage Loan, take (or, in the case of any Performing Mortgage Loan,
consent to the Master Servicer's taking) any of the other acts referenced
in this Section 3.20(a) with respect to, any Mortgage Loan that would
affect the amount or timing of any related payment of principal, interest
or other amount payable thereunder or, in the Special Servicer's
reasonable, good faith judgment, would materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon, unless a material default on such Mortgage Loan has occurred
or, in the Special Servicer's reasonable, good faith judgment, a default
in respect of payment on such Mortgage Loan is reasonably foreseeable, and
such modification, waiver, amendment or other action is reasonably likely
to produce a greater recovery to Certificateholders (as a collective
whole) on a present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be done at
the related Mortgage Rate), than would liquidation;
(iii) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, extend (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's extending) the date on which any
Balloon Payment is scheduled to be due on any Mortgage Loan to a date
beyond the earliest of (A) the fifth anniversary of such Mortgage Loan's
Stated Maturity Date, (B) two years prior to the Rated Final Distribution
Date and (C) if such Mortgage Loan is secured by a Mortgage solely or
primarily on the related Borrower's leasehold interest in the related
Mortgaged Property, ten years prior to the end of the then current term of
the related Ground Lease (plus any unilateral options to extend); and,
furthermore, the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, grant (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's granting) any such extension unless
the related Borrower agrees to deliver to the Special Servicer, the
Trustee and the Controlling Class Representative quarterly operating
statements with respect to the related Mortgaged Property (the Special
Servicer (or, if applicable, the Master Servicer at the direction of the
Special Servicer) to request that such statements be audited, provided
that the Special Servicer may waive such condition relating to such
statements being audited, in its sole discretion);
(iv) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Mortgage Loan that would result in an Adverse REMIC Event with respect
to any REMIC Pool or an Adverse Grantor Trust Event with respect to either
Grantor Trust Pool;
(v) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, permit (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's permitting) any Borrower to add or
substitute any real estate collateral for its Mortgage Loan unless the
Special Servicer shall have first (A) determined in its reasonable, good
faith judgment, based upon a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary
and prudent) conducted by an Independent Person who regularly conducts
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Phase I Environmental Assessments, at the expense of the Borrower, that
such additional or substitute collateral is in compliance with applicable
environmental laws and regulations and that there are no circumstances or
conditions present with respect to such new collateral relating to the
use, management or disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment, clean-up or remediation
would be required under any then applicable environmental laws or
regulations and (B) received written confirmation from each Rating Agency
that such addition or substitution of collateral will not, in and of
itself, result in an Adverse Rating Event with respect to any Class of
Rated Certificates; and
(vi) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, release (or, in the case of any Performing
Mortgage Loan, consent to the Master Servicer's releasing), including in
connection with a substitution contemplated by clause (v) above, any
collateral securing an outstanding Mortgage Loan except as provided in
Section 3.09(d), or except as provided in Section 3.20(g), or except where
a Mortgage Loan (or, in the case of a Cross-Collateralized Group, where
such entire Cross-Collateralized Group) is satisfied, or except in the
case of a release where (A) either (1) the use of the collateral to be
released will not, in the Special Servicer's good faith and reasonable
judgment, materially and adversely affect the Net Operating Income being
generated by or the use of the related Mortgaged Property, or (2) there is
a corresponding principal pay down of such Mortgage Loan in an amount at
least equal to the appraised value of the collateral to be released (or
substitute collateral with an appraised value at least equal to that of
the collateral to be released, is delivered), (B) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Mortgage Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (vi) above shall not apply to any of the acts referenced in
this Section 3.20(a) with respect to any Mortgage Loan that is required under
the terms of such Mortgage Loan in effect on the Closing Date (or, in the case
of a Replacement Mortgage Loan, on the related date of substitution) or that is
solely within the control of the related Borrower, and (y) notwithstanding
clauses (i) through (vi) above, neither the Master Servicer nor the Special
Servicer shall be required to oppose the confirmation of a plan in any
bankruptcy or similar proceeding involving a Borrower if in its reasonable, good
faith judgment such opposition would not ultimately prevent the confirmation of
such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the
Certificateholders or any other Person if the Special Servicer's analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer and in
accordance with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, for purposes of calculating monthly distributions and
reporting information to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the Master Servicer or the Special Servicer on
behalf of the Trust to enforce any obligations of the related Borrower under
such Mortgage Loan.
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(d) Each of the Master Servicer and the Special Servicer may, as a
condition to its granting any request by a Borrower for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the Master Servicer's or the Special Servicer's, as the case may be,
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Borrower pay to it a reasonable or customary fee (which shall in no
event exceed 1.0% of the unpaid principal balance of the related Mortgage Loan)
for the additional services performed in connection with such request, together
with any related costs and expenses incurred by it. All such fees collected by
the Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Mortgage Loans pursuant to this Section 3.20
shall be in writing. Each of the Special Servicer and the Master Servicer shall
notify the other such party, each Rating Agency and the Trustee, in writing, of
any modification, waiver, amendment or other action entered into or taken
thereby in respect of any Mortgage Loan pursuant to this Section 3.20 and the
date thereof, and shall deliver to the Trustee or the related Custodian for
deposit in the related Mortgage File (with a copy to the other such party), an
original counterpart of the agreement relating to such modification, waiver,
amendment or other action, promptly (and in any event within ten Business Days)
following the execution thereof. In addition, following the execution of any
modification, waiver or amendment agreed to by the Special Servicer pursuant to
Section 3.20(a) above, the Special Servicer shall deliver to the Master
Servicer, the Trustee and the Rating Agencies an Officer's Certificate
certifying that all of the requirements of Section 3.20(a) have been met and
setting forth in reasonable detail the basis of the determination made by it
pursuant to Section 3.20(a)(ii); provided that, if such modification, waiver or
amendment involves an extension of the maturity of any Mortgage Loan, such
Officer's Certificate shall be delivered to the Master Servicer, the Trustee and
the Rating Agencies before the modification, waiver or amendment is agreed to.
(f) With respect to any Designated ARD Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, in its discretion, to
waive (such waiver to be in writing addressed to the related Borrower, with a
copy to the Trustee) all or any portion of the accrued Additional Interest in
respect of such ARD Loan if, prior to the related maturity date, the related
Borrower has requested the right to prepay such ARD Loan in full together with
all payments required by the related Mortgage Loan documents in connection with
such prepayment except for such accrued Additional Interest, provided that (i)
the Master Servicer has obtained the consent of the Special Servicer (such
consent to be given or withheld in accordance with the Servicing Standard) and
(ii) the Master Servicer has determined, in its reasonable, good faith judgment,
that the waiver of the Trust's right to receive such accrued Additional Interest
is in accordance with the Servicing Standard.
(g) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies in order to approve the following
modifications, waivers or amendments of the Mortgage Loans: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions shall be made as required by the Mortgage
Loan documents); and (iii) grants of easements that do not materially affect the
use or value of a Mortgaged Property or the Borrower's ability to make any
payments with respect to the related Mortgage Loan; provided that any such
modification, waiver or
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amendment (w) would not in any way affect a payment term of the Certificates,
(x) would not constitute a "significant modification" of such Mortgage Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
constitute an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool, (y) agreeing to
such modification, waiver or amendment would be consistent with the Servicing
Standard, and (z) agreeing to such modification, waiver or amendment shall not
violate the terms, provisions or limitations of this Agreement or any other
document contemplated hereby.
(h) The Master Servicer shall not terminate or consent to the
termination any property manager with respect to any Mortgaged Property without
the consent of the Special Servicer (it being understood and agreed that (A) the
Master Servicer shall promptly provide the Special Servicer with all information
that the Special Servicer may reasonably request and which information is in the
possession of the Master Servicer, in order to withhold or grant any such
consent, (B) the Special Servicer (for no additional compensation) shall decide
whether to withhold or grant such consent in accordance with the Servicing
Standard and (C) if any such consent has not been expressly denied within ten
Business Days of the Special Servicer's receipt from the Master Servicer of all
information reasonably requested thereby in order to make an informed decision,
such consent shall be deemed to have been granted).
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Master Servicer shall immediately give notice thereof, and
shall deliver the related Servicing File, to the Special Servicer and shall use
its best efforts to provide the Special Servicer with all information, documents
(or copies thereof) and records (including records stored electronically on
computer tapes, magnetic discs and the like) relating to the Mortgage Loan and
reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto without acting through a Sub-Servicer.
To the extent such is in the possession of the Master Servicer or any
Sub-Servicer thereof, the information, documents and records to be delivered by
the Master Servicer to the Special Servicer pursuant to the prior sentence shall
include, but not be limited to, financial statements, appraisals,
environmental/engineering reports, leases, rent rolls, title insurance policies,
UCC's and tenant estoppels. The Master Servicer shall use its best efforts to
comply with the preceding two sentences within five Business Days of the
occurrence of each related Servicing Transfer Event. The Special Servicer may,
as to any delinquent Mortgage Loan, prior to the occurrence of a Servicing
Transfer Event with respect thereto, request and obtain the foregoing documents
and information in order to perform its duties described in Section 3.02.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within five Business Days, to the Master
Servicer; and, upon giving such notice and returning such Servicing File to the
Master Servicer, the Special Servicer's obligation to service such Mortgage
Loan, and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
Master Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event
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or the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
the Master Servicer and the Special Servicer shall each transfer to the other,
as and when applicable, the servicing of all other Cross-Collateralized Mortgage
Loans constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Borrower generated while such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(c) The Master Servicer and Special Servicer shall each furnish to
the other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Mortgage Loans and any REO Properties and as shall
be reasonably required by the requesting party in order to perform its duties
hereunder.
(d) In connection with the performance of its obligations hereunder,
each of the Master Servicer and the Special Servicer shall be entitled to rely
upon written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f), the Special
Servicer may enter into Sub-Servicing Agreements to provide for the performance
by third parties of any or all of their respective obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement, including any
amendments thereto and modifications thereof: (i) insofar as it affects the
Trust, is consistent with this Agreement, including Section 7.01(a), in all
material respects and requires the Sub-Servicer to comply in all material
respects with all of the applicable conditions of this Agreement; (ii) provides
that if the Master Servicer or the Special Servicer, as the case may be, shall
for any reason no longer act in such capacity hereunder (including by reason of
an Event of Default), the Trustee or its designee or any other successor to the
Master Servicer or the Special Servicer, as the case may be, may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or the Special Servicer, as
the case may be, under such agreement or, alternatively, may terminate such
Sub-Servicing Agreement without cause and without payment of any penalty or
termination fee (provided, however, that each Designated Sub-Servicer Agreement
may require a termination fee in connection with any termination of the
applicable Designated Sub-Servicer without cause); (iii) provides that the
Trustee, for the benefit of the Certificateholders, shall be a third party
beneficiary under such agreement, but that (except to the extent the Trustee or
its designee assumes the obligations of the Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii) and except with respect to the obligations of any
successor Master Servicer under the Designated Sub-Servicer Agreements) none of
the Trustee, any successor Master Servicer or Special Servicer, as the case may
be, or any Certificateholder shall have any duties under such agreement or any
liabilities arising therefrom except as explicitly set forth herein; (iv)
permits any purchaser of a Mortgage Loan pursuant to this Agreement to terminate
such agreement with respect to such purchased Mortgage Loan at its option and
without penalty except with respect to the Designated Sub-Servicer Agreements;
(v) does not permit the Sub-Servicer to enter into or consent to any
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modification, waiver or amendment or otherwise take any action on behalf of the
Master Servicer or Special Servicer, as the case may be, contemplated by Section
3.20 hereof without the consent of the Master Servicer or Special Servicer, as
the case may be; and (vi) does not permit the Sub-Servicer any greater rights of
indemnification out of the Trust Fund than those that the Master Servicer or the
Special Servicer, as the case may be, have pursuant to Section 6.03; provided
that the appointment by the Master Servicer or Special Servicer of a third-party
contractor for the purpose of performing discrete, ministerial functions shall
not be subject to this Section 3.22 (except that the Master Servicer or the
Special Servicer, as the case may be, shall remain responsible for the actions
of such third-party contractors and shall pay all fees and expenses of such
third-party contractors, unless otherwise expressly provided herein). In
addition, each Sub-Servicing Agreement entered into by the Master Servicer shall
provide that such agreement shall, with respect to any Mortgage Loan serviced
thereunder, terminate at the time such Mortgage Loan becomes a Specially
Serviced Mortgage Loan (or, alternatively, be suspended for so long as such
Mortgage Loan continues to be a Specially Serviced Mortgage Loan), and each
Sub-Servicing Agreement entered into by the Special Servicer shall relate only
to Specially Serviced Mortgage Loans and REO Property and shall terminate with
respect to any such Mortgage Loan which ceases to be a Specially Serviced
Mortgage Loan. The Master Servicer and the Special Servicer shall each notify
the other, the Trustee and the Depositor in writing promptly of the appointment
by it of any Sub-Servicer. The Master Servicer and the Special Servicer shall
each deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make Advances shall
be deemed to have been advanced by the Master Servicer or the Special Servicer,
as the case may be, out of its own funds and, accordingly, such Advances shall
be recoverable by such Sub-Servicer in the same manner and out of the same funds
as if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be. Such Advances shall accrue interest in accordance with Sections
3.11(g) and/or 4.03(d), such interest to be allocable between the Master
Servicer or the Special Servicer, as the case may be, and such Sub-Servicer as
they may agree. For purposes of this Agreement, the Master Servicer and the
Special Servicer shall each be deemed to have received any payment when a
Sub-Servicer retained by it receives such payment.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the other such
party or to the Trustee, the Certificateholders or the Trust) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith and
reasonable judgment, would require were it the owner of the Mortgage Loans.
Subject to the terms of the related Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each have the right to remove a Sub-Servicer
retained by it at any time it considers such removal to be in the best interests
of Certificateholders.
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(d) If the Master Servicer or the Special Servicer ceases to serve
as such under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement unless the Trustee or other successor Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that a
Designated Sub-Servicer Agreement may not be so terminated except for cause or
upon payment of a termination fee as provided in such Designated Sub-Servicer
Agreement. In any event, if a Sub-Servicing Agreement is to be assumed by the
Trustee or other successor Master Servicer or Special Servicer, then the Master
Servicer or the Special Servicer, as applicable, at its expense shall, upon
request of the Trustee, deliver to the assuming party all documents and records
relating to such Sub-Servicing Agreement and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected and held on behalf of
it thereunder, and otherwise use its best efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust other than those
contemplated herein.
(f) The Special Servicer shall not enter into any Sub-Servicing
Agreement unless either: (i) the Rating Agencies have confirmed in writing that
entering into such agreement will not result in an Adverse Rating Event; or (ii)
such agreement relates to one or more Mortgage Loans (including any such
Mortgage Loan(s) previously sub-serviced in accordance with this Section 3.22)
that together represent less than 25% of the aggregate outstanding principal
balance of all Specially Serviced Mortgage Loans.
(g) Each successor Master Servicer hereunder shall, except as
provided in Section 7.01(c), agree to assume the responsibilities and
obligations of the Master Servicer under the applicable Designated Sub-Servicer
Agreement.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a
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Controlling Class Representative. Such notice shall set forth the process
established by the Trustee for selecting a Controlling Class Representative,
which process may include the designation of the Controlling Class
Representative by the Majority Controlling Class Certificateholder by a writing
delivered to the Trustee. No appointment of any Person as a Controlling Class
Representative shall be effective until such Person provides the Trustee with
written confirmation of its acceptance of such appointment, an address and
telecopy number for the delivery of notices and other correspondence and a list
of officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and telecopy numbers).
(b) Within ten Business Days (or as soon thereafter as practicable
if the Controlling Class consists of Book-Entry Certificates) of any change in
the identity of the Controlling Class Representative of which a Responsible
Officer of the Trustee has actual knowledge or of receiving a request therefor
from the Master Servicer or Special Servicer, the Trustee shall deliver to the
requesting party the identity of the Controlling Class Representative and a list
of each Holder (or, in the case of Book-Entry Certificates, to the extent
actually known to a Responsible Officer of the Trustee or identified thereto by
the Depository or the Depository Participants, each Certificate Owner) of the
Controlling Class, including, in each case, names and addresses. With respect to
such information, the Trustee shall be entitled to conclusively rely on
information provided to it by the Holders (or, in the case of Book-Entry
Certificates, subject to Section 5.06, by the Depository or the Certificate
Owners) of such Certificates, and the Master Servicer and the Special Servicer
shall be entitled to rely on such information provided by the Trustee with
respect to any obligation or right hereunder that the Master Servicer and the
Special Servicer may have to deliver information or otherwise communicate with
the Controlling Class Representative or any of the Holders (or, if applicable,
Certificate Owners) of the Controlling Class. In addition to the foregoing,
within two Business Days of the selection, resignation or removal of a
Controlling Class Representative, the Trustee shall notify the other parties to
this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee and to each Holder (or, in the case
of Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
party to this Agreement and each Holder (or, in the case of Book-Entry
Certificates, Certificate Owner) of the Controlling Class, in writing, of the
resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Trustee, the
Master Servicer and the Special Servicer, whereupon (if the Special Servicer or
the Trust are also named
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parties to the same action and, in the sole judgment of the Special Servicer,
(i) the Controlling Class Representative had acted in good faith, without
negligence or willful misfeasance with regard to the particular matter, and (ii)
there is no potential for the Special Servicer or the Trust to be an adverse
party in such action as regards the Controlling Class Representative) the
Special Servicer on behalf of the Trust shall, subject to Section 6.03, assume
the defense of any such claim against the Controlling Class Representative. This
provision shall survive the termination of this Agreement and the termination or
resignation of the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) The Controlling Class Representative will be entitled to advise
the Special Servicer with respect to the following actions of the Special
Servicer, and notwithstanding anything in any other Section of this Agreement to
the contrary, but in all cases subject to Section 3.24(b), the Special Servicer
will not be permitted to take any of the following actions unless and until it
has notified the Controlling Class Representative in writing and the Controlling
Class Representative has not objected in writing within ten Business Days of
having been notified thereof in writing and having been provided with all
reasonably requested information with respect thereto (provided that if such
written objection has not been received by the Special Servicer within such ten
Business Day period, then the Controlling Class Representative's approval will
be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions 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, amendment or waiver of a monetary term
(including the timing of payments) or any material non-monetary term of a
Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the Purchase Price;
(iv) any acceptance of a discounted payoff;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for a Mortgage Loan (other than in
accordance with the terms of, or upon satisfaction of, such Mortgage
Loan);
(vii) any acceptance of substitute or additional collateral for a
Mortgage Loan (other than in accordance with the terms of such Mortgage
Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause;
and
(ix) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan;
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provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Controlling Class Representative's response.
In addition, the Controlling Class Representative may direct the Special
Servicer to take, or to refrain from taking, such actions as the Controlling
Class Representative may deem advisable or as to which provision is otherwise
made herein subject to Section 3.24(b). Upon reasonable request, the Special
Servicer shall provide the Controlling Class Representative with any information
in the Special Servicer's possession with respect to such matters, including,
without limitation, its reasons for determining to take a proposed action;
provided that such information shall also be provided, in a written format, to
the Trustee, who shall make it available for review pursuant to Section 8.12(b).
Each of the Master Servicer and the Special Servicer shall notify
the Controlling Class Representative of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with such Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from any Controlling Class Representative
prior to acting, and provisions of this Agreement requiring such shall be of no
effect, during the period prior to the initial selection of a Controlling Class
Representative and, if any Controlling Class Representative resigns or is
removed, during the period following such resignation or removal until a
replacement is selected and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a), may
(and the Special Servicer shall ignore and act without regard to any such
advice, direction or objection that the Special Servicer has determined, in its
reasonable, good faith judgment, would) (A) require or cause the Special
Servicer to violate applicable law, the terms of any Mortgage Loan, any
provision of this Agreement or the REMIC Provisions, including the Special
Servicer's obligation to act in accordance with the Servicing Standard, (B)
result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool, (C) expose the
Trust. the Depositor, the Master Servicer, the Special Servicer, any Fiscal
Agent, the Tax Administrator or the Trustee, or any of their respective
Affiliates, officers, directors, employees or agents, to any material claim,
suit or liability, or (D) materially expand the scope of the Special Servicer's
responsibilities under this Agreement.
Furthermore, the Special Servicer shall not be obligated to obtain
the approval of the Controlling Class Representative for any actions to be taken
by the Special Servicer with respect to any particular Mortgage Loan if (i) the
Special Servicer has, in accordance with Section 3.24(a), notified the
Controlling Class Representative in writing of the various actions that the
Special Servicer proposes to take with respect to the work-out or liquidation of
such Mortgage Loan and (ii) for 60 days following the first such notice, the
Controlling Class Representative has objected to all of those proposed actions
and has failed to suggest any alternative actions that the Special Servicer
considers to be consistent with the Servicing Standard.
(c) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that the Controlling Class Representative may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates, that the Controlling Class Representative
may act solely in the interests of the Holders of the Controlling Class, that
the Controlling Class Representative does not have any duties to the Holders of
any Class of Certificates other than the Controlling Class, that the
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Controlling Class Representative may take actions that favor interests of the
Holders of the Controlling Class over the interests of the Holders of one or
more other Classes of Certificates, and that the Controlling Class
Representative shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Controlling Class
Representative or any director, officer, employee, agent or principal thereof
for having so acted.
SECTION 3.25. Credit Leases.
(a) Within 30 days after the Closing Date, the Master Servicer shall
notify the insurer under any Lease Enhancement Policy for the CTL Loan that (i)
both the Master Servicer and the Special Servicer shall be sent notices under
each such policy and (ii) the Trustee for the benefit of the Certificateholders
shall be the loss payee under each such policy. In the event that the Master
Servicer has actual knowledge of any event (an "Insured CTL Event") giving rise
to a claim under any Lease Enhancement Policy, the Master Servicer shall prepare
and file a "proof of loss" form with the appropriate insurer within five
Business Days after receiving notice of any Insured CTL Event under any such
policy and shall process any claims under such policy in accordance with the
terms of such policy and the Servicing Standard. With respect to any Lease
Enhancement Policy, the Master Servicer shall review and familiarize itself with
the terms and conditions relating to enforcement of claims and shall monitor the
dates by which any claim must be made or any action must be taken under such
policy to realize the full value thereof for the benefit of the
Certificateholders.
In the event that the Master Servicer receives notice of any
termination of any Lease Enhancement Policy, the Master Servicer shall, within
three Business Days after receipt of such notice, notify the Rating Agencies,
the Special Servicer and the Trustee of such termination in writing. Upon
receipt of such notice, the Master Servicer shall address such termination in
accordance with the Servicing Standard. Any legal fees incurred in connection
with a resolution of such termination of any Lease Enhancement Policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance (to the extent not required to be paid, and not actually paid, by the
related Borrower under the applicable Mortgage Loan documents).
(b) The Master Servicer shall make a Servicing Advance with respect
to the Mortgaged Property subject to a Credit Lease in an amount equal to all
such funds as are necessary for the costs of maintenance or repair of a
Mortgaged Property or other obligation of the related Borrower, if and to the
extent the failure to complete such maintenance or repair or other obligation
may give rise to a right on the part of the related Credit Tenant to terminate
the Credit Lease or obtain an abatement of the rent thereunder, and provided
that the Master Servicer is aware of the failure to complete such maintenance or
repair or other obligations and the particular Servicing Advance would not, if
made, constitute a Nonrecoverable Servicing Advance. All such Servicing Advances
shall be reimbursable from collections from the related Borrower, the related
Reserve Funds or excess cash flow after scheduled debt service on the related
Mortgage Loan or as may be provided in the Credit Lease or general collections
on the Mortgage Pool if so permitted by Section 3.05(a). The Master Servicer
shall have no duty to discover any required maintenance or repair with respect
to the Mortgaged Property for the CTL Loan independent of its general property
inspection obligations pursuant to Section 3.12.
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SECTION 3.26. Alternate Special Servicer.
If (i) to the knowledge of any Servicing Officer, the Special
Servicer or any of its direct or indirect, wholly-owned subsidiaries acquires or
holds an equity interest in, or debt secured by an equity interest in, any
Borrower and (ii) the related Mortgage Loan is or becomes a Specially Serviced
Mortgage Loan, then the Special Servicer shall promptly so notify the Trustee
and each Rating Agency and shall, solely with respect to such Mortgage Loan,
within 30 days after the satisfaction of both of the conditions set forth in
clauses (i) and (ii) of this sentence, designate an experienced servicing
institution to act as an alternative special servicer (the "Alternate Special
Servicer"). Promptly following such designation, the Special Servicer shall
notify the Trustee and each Rating Agency of the Person proposed to act as the
Alternate Special Servicer with respect to such Mortgage Loan. The designated
Person shall become the Alternate Special Servicer with respect to such Mortgage
Loan on the date as of which the Trustee shall have received: (i) written
confirmation from each of the Rating Agencies that the appointment of such
Person as Alternate Special Servicer for such Mortgage Loan will not result in
an Adverse Rating Event with respect to any Class of Rated Certificates; (ii) a
written assumption of all of the Special Servicer's duties with respect to such
Mortgage Loan, executed by the designated Person; and (iii) an Opinion of
Counsel (which shall not be an expense of the Trust or the Trustee)
substantially to the effect that (A) the designation of such Person to serve as
Alternate Special Servicer with respect to such Mortgage Loan is in compliance
with this Section 3.26, (B) the designated Person is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (C) the written assumption contemplated by clause (ii) of this
sentence has been duly authorized, executed and delivered by the designated
Person and (D) upon the execution and delivery of the written assumption
contemplated by clause (ii) of this sentence, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms, in any event, insofar as this
Agreement relates to the obligations of the Special Servicer with respect to
such Mortgage Loan; provided that no rating confirmation pursuant to clause (i)
of this sentence shall be necessary from Fitch if the designated Person has a
special servicing rating of at least "CSS2" from Fitch; and provided, further,
that if no Person designated by the Special Servicer has become the Alternate
Special Servicer with respect to such Mortgage Loan within 40 days after the
satisfaction of both of the conditions set forth in clauses (i) and (ii) of the
first sentence of this Section 3.26, the Master Servicer (or, in the case of the
initial Master Servicer, an Affiliate thereof rated as a special servicer by
Fitch) shall act as such Alternate Special Servicer. Once a Person becomes the
Alternate Special Servicer with respect to such Mortgage Loan in accordance with
the preceding sentence, such Person, rather than the Special Servicer, shall be
obligated to perform all of the obligations of the Special Servicer, and shall
be entitled to all of the Special Servicing Fees, Workout Fees, Liquidation Fees
and Additional Special Servicing Compensation payable, with respect to such
Mortgage Loan, and all references herein to "Special Servicer" shall, in the
case of such Mortgage Loan, mean the Alternate Special Servicer. The Special
Servicer shall be responsible for the servicing and administration of such
Mortgage Loan until an Alternate Special Servicer has assumed responsibility for
such Mortgage Loan; provided that the Special Servicer may not agree to any
waiver, modification or amendment of the terms of such Mortgage Loan; and
provided, further, that the Special Servicer shall not be responsible for its
failure to take any action with respect to a Specially Serviced Mortgage Loan
subject to this Section 3.26 so long as the Special Servicer has complied with
its requirements and otherwise acted in accordance with the Servicing Standard.
The Special Servicer shall not be obligated to compensate any Alternate Special
Servicer in addition to what such Alternate Special Servicer is otherwise
entitled to hereunder. If the Special Servicer or its direct or indirect,
wholly-owned subsidiary, as the case may be, disposes of its equity interest in,
and any debt secured by an equity interest in, a Borrower, the Special Servicer
may terminate the related Alternate Special Servicer and shall, thereupon,
resume acting as Special Servicer with respect to such
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Borrower's Mortgage Loan; provided that if the initial Master Servicer or an
Affiliate thereof is the Alternate Special Servicer, it shall retain the right
to receive any Liquidation Fees or Workout Fees earned (including after such
termination) with respect to such Borrower's Mortgage Loan.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Distribution Account for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Available Distribution Amount for such Distribution Date:
(i) to make distributions of interest to the Holders of the
respective Classes of Senior Certificates, pro rata based on entitlement,
up to an amount equal to all Distributable Certificate Interest in respect
of each such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(ii) to make distributions of principal to the Holders of the
Class A-1A and Class A-1B Certificates, allocable as between such Classes
of Certificateholders as provided below, up to an amount equal to the
lesser of (A) the aggregate of the then outstanding Class Principal
Balances of the Class A-1A and Class A-1B Certificates and (B) the
Principal Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class A-1A and Class
A-1B Certificates, pro rata based on entitlement, up to an amount equal to
all Unreimbursed Principal Balance Reductions, if any, previously incurred
with respect to each such Class of Certificates;
(iv) to make distributions of interest to the Holders of the
Class A-1C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(v) after the Class Principal Balances of the Class A-1A and
Class A-1B Certificates have been reduced to zero, to make distributions
of principal to the Holders of the Class A-1C Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class Principal
Balance of the Class A-1C Certificates and (B) the excess, if any, of the
Principal Distribution Amount for such Distribution Date over the amounts,
if any, distributed on such Distribution Date pursuant to clause (ii)
above;
(vi) to reimburse the Holders of the Class A-1C Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(vii) to make distributions of interest to the Holders of the
Class A-2 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
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(viii) after the Class Principal Balances of the Class A-1A,
Class A-1B and Class A-1C Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class A-2 Certificates,
up to an amount equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class A-2 Certificates and (B) the excess, if
any, of the Principal Distribution Amount for such Distribution Date over
the amounts, if any, distributed on such Distribution Date pursuant to
clauses (ii) and (v) above;
(ix) to reimburse the Holders of the Class A-2 Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(x) to make distributions of interest to the Holders of the
Class A-3 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xi) after the Class Principal Balances of the Class A-1A,
Class A-1B, Class A-1C and Class A-2 Certificates have been reduced to
zero, to make distributions of principal to the Holders of the Class A-3
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class A-3 Certificates and (B)
the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v) and (viii) above;
(xii) to reimburse the Holders of the Class A-3 Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xiii) to make distributions of interest to the Holders of the
Class A-4 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xiv) after the Class Principal Balances of the Class A-1A,
Class A-1B, Class A-1C, Class A-2 and Class A-3 Certificates have been
reduced to zero, to make distributions of principal to the Holders of the
Class A-4 Certificates, up to an amount equal to the lesser of (A) the
then outstanding Class Principal Balance of the Class A-4 Certificates and
(B) the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii) and (xi) above;
(xv) to reimburse the Holders of the Class A-4 Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xvi) to make distributions of interest to the Holders of the
Class A-5 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
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(xvii) after the Class Principal Balances of the Class A-1A,
Class A-1B, Class A-1C, Class A-2, Class A-3 and Class A-4 Certificates
have been reduced to zero, to make distributions of principal to the
Holders of the Class A-5 Certificates, up to an amount equal to the lesser
of (A) the then outstanding Class Principal Balance of the Class A-5
Certificates and (B) the excess, if any, of the Principal Distribution
Amount for such Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii), (v), (viii), (xi) and
(xiv) above;
(xviii) to reimburse the Holders of the Class A-5
Certificates, up to an amount equal to all Unreimbursed Principal Balance
Reductions, if any, previously incurred with respect to such Class of
Certificates;
(xix) to make distributions of interest to the Holders of the
Class B-1 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xx) after the Class Principal Balances of the Class A
Certificates have been reduced to zero, to make distributions of principal
to the Holders of the Class B-1 Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of the Class
B-1 Certificates and (B) the excess, if any, of the Principal Distribution
Amount for such Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv)
and (xvii) above;
(xxi) to reimburse the Holders of the Class B-1 Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxii) to make distributions of interest to the Holders of the
Class B-2 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxiii) after the Class Principal Balances of the Class A and
Class B-1 Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class B-2 Certificates, up to an amount
equal to the lesser of (A) the then outstanding Class Principal Balance of
the Class B-2 Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the amounts, if any,
distributed on such Distribution Date pursuant to clauses (ii), (v),
(viii), (xi), (xiv), (xvii) and (xx) above;
(xxiv) to reimburse the Holders of the Class B-2 Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxv) to make distributions of interest to the Holders of the
Class B-3 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxvi) after the Class Principal Balances of the Class A,
Class B-1 and Class B-2 Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class
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B-3 Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class B-3 Certificates and (B)
the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv),
(xvii), (xx) and (xxiii) above;
(xxvii) to reimburse the Holders of the Class B-3
Certificates, up to an amount equal to all Unreimbursed Principal Balance
Reductions, if any, previously incurred with respect to such Class of
Certificates;
(xxviii) to make distributions of interest to the Holders of
the Class B-4 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxix) after the Class Principal Balances of the Class A,
Class B-1, Class B-2 and Class B-3 Certificates have been reduced to zero,
to make distributions of principal to the Holders of the Class B-4
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class B-4 Certificates and (B)
the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii) and (xxvi) above;
(xxx) to reimburse the Holders of the Class B-4 Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxxi) to make distributions of interest to the Holders of the
Class B-5 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxii) after the Class Principal Balances of the Class A,
Class B-1, Class B-2, Class B-3 and Class B-4 Certificates have been
reduced to zero, to make distributions of principal to the Holders of the
Class B-5 Certificates, up to an amount equal to the lesser of (A) the
then outstanding Class Principal Balance of the Class B-5 Certificates and
(B) the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi) and (xxix) above;
(xxxiii) to reimburse the Holders of the Class B-5
Certificates, up to an amount equal to all Unreimbursed Principal Balance
Reductions, if any, previously incurred with respect to such Class of
Certificates;
(xxxiv) to make distributions of interest to the Holders of
the Class B-6 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
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(xxxv) after the Class Principal Balances of the Class A,
Class B-1, Class B-2, Class B-3, Class B-4 and Class B-5 Certificates have
been reduced to zero, to make distributions of principal to the Holders of
the Class B-6 Certificates, up to an amount equal to the lesser of (A) the
then outstanding Class Principal Balance of the Class B-6 Certificates and
(B) the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi) (xxix) and (xxxii) above;
(xxxvi) to reimburse the Holders of the Class B-6
Certificates, up to an amount equal to all Unreimbursed Principal Balance
Reductions, if any, previously incurred with respect to such Class of
Certificates;
(xxxvii) to make distributions of interest to the Holders of
the Class B-7 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxviii) after the Class Principal Balances of the Class A,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates have been reduced to zero, to make distributions of principal
to the Holders of the Class B-7 Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of the Class
B-7 Certificates and (B) the excess, if any, of the Principal Distribution
Amount for such Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii) and (xxxv) above;
(xxxix) to reimburse the Holders of the Class B-7
Certificates, up to an amount equal to all Unreimbursed Principal Balance
Reductions, if any, previously incurred with respect to such Class of
Certificates;
(xl) to make distributions of interest to the Holders of the
Class B-8 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xli) after the Class Principal Balances of the Class A, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class B-7
Certificates have been reduced to zero, to make distributions of principal
to the Holders of the Class B-8 Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of the Class
B-8 Certificates and (B) the excess, if any, of the Principal Distribution
Amount for such Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv) and (xxxviii)
above;
(xlii) to reimburse the Holders of the Class B-8 Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xliii) to make distributions of interest to the Holders of
the Class C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
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(xliv) after the Class Principal Balances of the Class A and
Class B Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class C Certificates, up to an amount
equal to the lesser of (A) the then outstanding Class Principal Balance of
the Class C Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the amounts, if any,
distributed on such Distribution Date pursuant to clauses (ii), (v),
(viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii),
(xxxv), (xxxviii) and (xli) above;
(xlv) to reimburse the Holders of the Class C Certificates, up
to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xlvi) to make distributions of interest to the Holders of the
Class D Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xlvii) after the Class Principal Balances of the Class A,
Class B and Class C Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class D Certificates up
to an amount equal to the lesser of (A) the then outstanding Class D
Certificates and (B) the excess, if any, of the Principal Distribution
Amount for such Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii),(v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli)
and (xliv) above;
(xlviii) to reimburse the Holders of the Class D Certificates,
up to an amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xlix) if a Final Recovery Determination was made with respect
to any defaulted Mortgage Loan or REO Property during the most recently
ended Collection Period, and provided that such Distribution Date is not
the Final Distribution Date, to deposit any remaining portion of the
Available Distribution Amount for such Distribution Date in the Gain on
Sale Reserve Fund;
(l) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(i), over (B)
the aggregate distributions made in respect of the Regular Interest
Certificates on such Distribution Date pursuant to clauses (i) through
(xlix) above;
(li) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(j), over (B)
the aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(i); and
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(lii) to make distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the excess, if any, of (A) the
Available Distribution Amount for such Distribution Date, over (B) the
aggregate distributions made in respect of the other Classes of
Certificates on such Distribution Date pursuant to clauses (i) through
(li) above;
provided, that, on the Final Distribution Date, the distributions of principal
to be made pursuant to clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli), (xliv) and (xlvii)
above shall, in each such case, subject to the then remaining portion of the
Available Distribution Amount for such date, be made to the Holders of the
relevant Class or Classes of Principal Balance Certificates otherwise entitled
to distributions of principal pursuant to such clause in an amount equal to the
entire then remaining Class Principal Balance (or, in the case of clause (ii)
above, if applicable, the entire aggregate of the then remaining Class Principal
Balances) of such Class or Classes of Certificates outstanding immediately prior
to such Final Distribution Date.
On each Distribution Date prior to the earlier of (i) the Senior
Principal Distribution CrossOver Date and (ii) the Final Distribution Date, the
Trustee shall pay the distributions of principal made on the Class A-1A and
Class A-1B Certificates pursuant to clause (ii) above, first, to the Holders of
the Class A-1A Certificates, until the Class Principal Balance of such Class has
been reduced to zero, and thereafter, to the Holders of the Class A-1B
Certificates, until the Class Principal Balance of such Class has been reduced
to zero. On any Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and (in any event) on the Final
Distribution Date, the Trustee shall pay the distributions of principal made on
the Class A-1A and Class A-1B Certificates pursuant to clause (ii) above to the
Holders of both the A-1A Certificates and the Class A-1B Certificates, on a pro
rata basis, in accordance with the respective Class Principal Balances of such
Classes outstanding immediately prior to such Distribution Date, until the Class
Principal Balance of each such Class has been reduced to zero.
(b) If a Yield Maintenance Charge is collected with respect to any
Mortgage Loan during any particular Collection Period, then the Trustee shall,
on the Distribution Date corresponding to such Collection Period, withdraw from
the Distribution Account and distribute among the Holders of the Class S
Certificates and the respective Classes of the Yield Maintenance Certificates in
the proportions set forth below the entire amount of such Yield Maintenance
Charge as additional interest:
(i) The Holders of each Class, if any, of the Yield Maintenance
Certificates then entitled to distributions of principal on such
Distribution Date shall be entitled to an amount equal to the product of
(A) the amount of such Yield Maintenance Charge that is so distributable,
multiplied by (B) a fraction (not greater than one or less than zero), the
numerator of which is equal to the excess, if any, of the Pass-Through
Rate applicable to such Class of Yield Maintenance Certificates for the
corresponding Interest Accrual Period, over the relevant Discount Rate,
and the denominator of which is equal to the excess, if any, of the
Mortgage Rate for the Mortgage Loan in respect of which such Yield
Maintenance Charge was received, over the relevant Discount Rate,
multiplied by (C) a fraction (not greater than one or less than zero), the
numerator of which is equal to the aggregate distributions of principal
payable to the Holders of such Class of Yield Maintenance Certificates on
such Distribution Date, and the denominator of which is equal to the
Principal Distribution Amount for such Distribution Date.
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(ii) Any portion of such Yield Maintenance Premium that may remain
after such distributions on the Principal Balance Certificates will be
distributed to the Holders of the Class S Certificates.
For purposes of the foregoing paragraph, the "Discount Rate" shall
be the rate which, when compounded monthly, is equivalent to the Treasury Rate
when compounded semi-annually (e.g., a 6% per annum Treasury Rate would equate
to a 5.9263% per annum Discount Rate). The "Treasury Rate" is: the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating (A) in the case of any GECA Mortgage Loan, the weighted
average life (calculated in accordance with the related loan documents) of the
prepaid Mortgage Loan immediately prior to the prepayment and (B) in the case of
any Column Mortgage Loan, the Stated Maturity Date (or, in the case of any
Column Mortgage Loan that is an ARD Loan, the Anticipated Repayment Date) of the
prepaid Mortgage Loan.
If a Prepayment Premium is collected with respect to any Mortgage
Loan during any particular Collection Period, then the Trustee shall, on the
Distribution Date corresponding to such Collection Period, withdraw from the
Distribution Account and distribute to the Holders of the Class S Certificates
the entire amount of such Prepayment Premium as additional interest.
(c) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account any amounts then on deposit in the Class E Sub-Account of
the Distribution Account that represent Additional Interest collected during or
prior to the related Collection Period in respect of the ARD Loans and shall
distribute such amounts to the Holders of the Class E Certificates.
(d) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among such
Certificates based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions made with respect to each Class of
Certificates on each Distribution Date shall be made to the Holders of such
Certificates of record at the close of business on the related Record Date and,
in the case of each such Holder, shall be made by wire transfer of immediately
available funds to the account thereof at a bank or other entity having
appropriate facilities therefor, if such Holder shall have provided the Trustee
with wiring instructions no later than the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), and otherwise shall be made by check mailed to the address
of such Holder as it appears in the Certificate Register. The final distribution
on each Certificate (determined, in the case of a Principal Balance Certificate,
without regard to any possible future reimbursement of any portion of a
previously incurred Unreimbursed Principal Balance Reduction allocable to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution. Any distribution that is to be made with respect to a Principal
Balance Certificate in reimbursement of any portion of an Unreimbursed Principal
Balance Reduction allocable to such Certificate, which reimbursement is to occur
after the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the Holder that surrendered
such Certificate at the last address set forth for such Holder in the
Certificate Register or at any other address of which the Trustee was
subsequently notified in writing.
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(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the parties hereto shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under the Letter of Representations
among the Depositor, the Trustee and the initial Depository, a copy of which
Letter of Representations is attached hereto as Exhibit C.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date (such final distribution
to be determined, in the case of a Class of Principal Balance Certificates,
without regard to any possible future reimbursement of any portion of a
previously incurred Unreimbursed Principal Balance Reduction in respect of such
Class), the Trustee shall, as promptly as possible (and, in any event, no later
than five days) after the related Determination Date, mail to each Holder of
record on such date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the
Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the
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delivery of the second notice, then, subject to applicable escheat laws, the
Trustee shall distribute to the Class R-III Certificateholders all unclaimed
funds.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from payments of interest or original issue discount to
any Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholder.
(i) All distributions of Distributable Certificate Interest made in
respect of the Class S Certificates on each Distribution Date pursuant to
Section 4.01(a) shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of the respective REMIC II Regular Interests, up to an
amount equal to, and pro rata in accordance with, the Class S Portion of the
Uncertificated Distributable Interest for each such REMIC II Regular Interest
for such Distribution Date and, to the extent not previously deemed distributed
pursuant to this sentence, for all prior Distribution Dates, if any. In
addition, all distributions of Prepayment Premiums and Yield Maintenance Charges
made in respect of the Class S Certificates on each Distribution Date pursuant
to Section 4.01(b) shall be deemed to have first been distributed from REMIC II
to REMIC III in respect of the respective REMIC II Regular Interests, pro rata
based upon the amount of principal deemed distributed in respect of each such
REMIC II Regular Interest for such Distribution Date as provided below in this
Section 4.01(i). Furthermore, all distributions made in respect of each Class of
Principal Balance Certificates on each Distribution Date pursuant to Section
4.01(a) or 4.01(b) shall be deemed to have first been distributed from REMIC II
to REMIC III in respect of the Corresponding REMIC II Regular Interest for such
Class of Principal Balance Certificates. In each case, if such distribution on
any such Class of Certificates was a distribution of interest, of principal, of
additional interest (in the form of Prepayment Premiums or Yield Maintenance
Charges) or in reimbursement of any related Unreimbursed Principal Balance
Reductions in respect of such Class of Certificates, then the corresponding
distribution deemed to be made on a REMIC II Regular Interest pursuant to the
preceding sentence shall be deemed also to be a distribution of interest, of
principal, of additional interest (in the form of Prepayment Premiums or Yield
Maintenance Charges) or in reimbursement of any related Unreimbursed Principal
Balance Reductions in respect of such REMIC II Regular Interest. The actual
distributions made by the Trustee on each Distribution Date in respect of the
REMIC III Certificates pursuant to Section 4.01(a) or 4.01(b), as applicable,
shall be deemed to have been so made from the amounts deemed distributed in
respect of the REMIC II Regular Interests on such Distribution Date pursuant to
this Section 4.01(i). Notwithstanding the deemed distributions on the REMIC II
Regular Interests described in this Section 4.01(i), actual distributions of
funds from the Distribution Account shall be made only in accordance with
Section 4.01(a), 4.01(b) or 4.01(c), as applicable.
(j) On each Distribution Date, immediately prior to making any
actual distributions on the REMIC III Certificates pursuant to Section 4.01(a)
or the corresponding deemed distributions on the REMIC II Regular Interests
pursuant to Section 4.01(i), the Trustee shall be deemed to have made out of the
Available Distribution Amount for such Distribution Date, the following
distributions in the following order of priority, in each case to the extent of
the remaining portion of such Available Distribution Amount:
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first, distributions of interest to REMIC II in respect of all the
REMIC I Regular Interests, up to an amount equal to, and pro rata
among the REMIC I Regular Interests in accordance with, all
Uncertificated Distributable Interest in respect of each REMIC I
Regular Interest for such Distribution Date and, to the extent not
previously deemed paid pursuant to this Section 4.01(j), for all
prior Distribution Dates;
second, distributions of principal to REMIC II in respect of all the
REMIC I Regular Interests, up to an amount equal to, and pro rata
among the REMIC I Regular Interests in accordance with, that
portion, if any, of the Principal Distribution Amount attributable
to each and every Mortgage Loan and/or REO Mortgage Loan, as the
case may be, that relates to each REMIC I Regular Interest; and
third, distributions to REMIC II in respect of all the REMIC I
Regular Interests (including any REMIC I Regular Interests whose
Uncertificated Principal Balances have previously been reduced to
zero), up to an amount equal to, in reimbursement of, and pro rata
in accordance with, all Unreimbursed Principal Balance Reductions,
if any, previously incurred in respect of each REMIC I Regular
Interest.
In addition, on each Distribution Date, immediately prior to making
any actual distributions on the REMIC III Certificates pursuant to Section
4.01(b) or the corresponding deemed distributions on the REMIC II Regular
Interests pursuant to Section 4.01(i), the Trustee shall be deemed to have
distributed to REMIC II each Prepayment Premium and Yield Maintenance Charge
then on deposit in the Distribution Account that was received on any Mortgage
Loan or REO Mortgage Loan during or prior to the related Collection Period, such
distribution to be deemed made in respect of the REMIC I Regular Interest that
relates to such Mortgage Loan or REO Mortgage Loan, as the case may be.
The distributions deemed made by the Trustee on each Distribution
Date in respect of the REMIC II Regular Interests pursuant to Section 4.01(i),
as well as the distributions actually made by the Trustee on each Distribution
Date in respect of the Class R-II and REMIC III Certificates pursuant to Section
4.01(a) and/or Section 4.01(b), shall be deemed to have been so made or deemed
made, as the case may be, from the amounts deemed distributed in respect of the
REMIC I Regular Interests on such Distribution Date pursuant to this Section
4.01(j). Notwithstanding the deemed distributions on the REMIC I Regular
Interests described in this Section 4.01(j), actual distributions of funds from
the Distribution Account shall be made only in accordance with Section 4.01(a),
4.01(b) or 4.01(c), as applicable.
(k) Payments of principal, interest, Prepayment Premiums and Yield
Maintenance Charges on any Loan REMIC Regular Interest shall match the payments
of principal, interest (other than Additional Interest), Prepayment Premiums and
Yield Maintenance Charges on the related Mortgage Loan or successor REO Mortgage
Loan.
SECTION 4.02. Statements to Certificateholders; Certain Other
Reports.
(a) Based solely on information provided to the Trustee by the
Master Servicer and the Special Servicer pursuant to Sections 3.12, 4.02(b) and
4.02(c), the Trustee shall prepare (or cause to be prepared) and, on each
Distribution Date, provide or make available electronically (or, upon request,
by first class mail) to the Depositor, the Master Servicer, the Special
Servicer, the Mortgage Loan Sellers, the Underwriter, the Rating Agencies, the
Controlling Class Representative, each Certificateholder and, to the
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extent that the Trustee has in accordance with Section 5.06(b) confirmed the
Ownership Interest in the Certificates held thereby, each Certificate Owner a
statement substantially in the form of, and containing the information set forth
in, Exhibit E-1 hereto (the "Trustee Report"), detailing the distributions on
such Distribution Date and the performance, both in the aggregate and
individually to the extent available, of the Mortgage Loans and the Mortgaged
Properties; provided that the Trustee need not deliver to the Depositor, the
Master Servicer, the Special Servicer, the Mortgage Loan Sellers, the
Underwriter, the Rating Agencies or the Controlling Class Representative any
Trustee Report that has been made available via the Trustee's Internet Website
as provided below; and provided, further, that the Trustee has no affirmative
obligation to discover the identities of Certificate Owners and need only react
to Persons claiming to be Certificate Owners in accordance with Section 5.06.
Notwithstanding the foregoing, any delivery of such reports to Fitch shall be
made by first class mail.
On each Distribution Date, the Trustee shall provide or make
available electronically (or, upon request, by first class mail) to the
Depositor, the Mortgage Loan Sellers, the Underwriter, the Master Servicer, the
Special Servicer, the Rating Agencies, the Controlling Class Representative,
each Certificateholder and each Certificate Owner to which a Trustee Report was
forwarded on such Distribution Date, a copy of the following reports delivered
to it by the Master Servicer pursuant to Section 3.12(d) since the preceding
Distribution Date (or, in the case of the initial Distribution Date, since the
Closing Date): (i) the Delinquent Loan Status Report; (ii) the Historical Loss
Estimate Report; (iii) the Historical Loan Modification Report; (iv) the REO
Status Report; (v) the Watch List Report; and (vi) the Comparative Financial
Status Report. The Trustee shall provide or make available electronically on
each Distribution Date (or, upon request, by first class mail) to the Depositor,
the Master Servicer, the Special Servicer, GECA, the Rating Agencies, the
Controlling Class Representative, each Certificateholder and each Certificate
Owner to which a Trustee Report was forwarded on such Distribution Date a copy
of the CMSA Loan Periodic Update File containing information regarding each
Mortgage Loan and the CMSA Property File containing information regarding each
Mortgaged Property and REO Property as of the end of the related Collection
Period. The Trustee shall have no obligation to provide the information or
reports described in this Section 4.02(a) until it has received the requisite
information or reports from the Master Servicer, and the Trustee shall not be in
default hereunder due to a delay in providing the Certificateholder Reports
caused by the Master Servicer's failure to timely deliver any information or
reports hereunder. The Trustee Report, the CMSA Loan Periodic Update File, the
CMSA Property File and the reports referred to in the first sentence of this
paragraph collectively constitute the "Certificateholder Reports". None of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Borrower or
third party, and accepted by it in good faith, that is included in any reports,
statements, materials or information prepared or provided by the Master
Servicer, the Special Servicer or the Trustee, as applicable. None of the
Trustee, the Master Servicer or the Special Servicer shall have any obligation
to verify the accuracy or completeness of any information provided by a
Borrower, a third party or each other.
The Trustee shall make available each month, to Certificateholders,
Certificate Owners, prospective investors and any other interested party, via
the Trustee's Internet Website, in a downloadable format, all Trustee Reports
and Unrestricted Servicer Reports and, with the consent or at the direction of
the Depositor, such other information regarding the Certificates and/or the
Mortgage Loans as the Trustee may have in its possession; provided that, unless
(i) the particular report or information has been filed with the Commission
pursuant to Section 8.15 or (ii) the Depositor has notified the Trustee that
DLJSC has sold the Non-Registered Certificates to unaffiliated third parties,
access to such reports and information on the Trustee's Internet Website will be
password protected to the same extent, and limited to the same Persons,
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as the Restricted Servicer Reports. After the Trustee shall have received the
notice from the Depositor regarding the sale of the Non-Registered Certificates,
as described in the preceding sentence, the Trustee shall make the Distribution
Date Statement available to any interested party via the electronic bulletin
board and the fax-on-demand service. The Trustee shall make the Restricted
Servicer Reports available each month, via the Trustee's Internet Website, to
any Certificateholder, Certificate Owner, any Person identified by any
Certificateholder or Certificate Owner as a prospective transferee of a
Certificate or interest therein, GECA, the Underwriter, Column, any Rating
Agency, the Master Servicer, the Special Servicer, the Controlling Class
Representative or any party hereto, with the use of a password provided by the
Trustee to such person upon receipt by the Trustee from such Person of a
certification substantially in the form of Exhibit L-1 or Exhibit L-2, as
applicable; provided, however, that the Trustee shall provide such password to
each party hereto, the Controlling Class Representative, GECA, the Master
Servicer, the Special Servicer, Column and each Rating Agency without requiring
such certification. In addition, the Trustee is hereby directed and authorized
to make available, as a convenience to interested parties (and not in
furtherance of the distribution of the Prospectus or the Prospectus Supplement
under the securities laws), this Agreement, the Prospectus and the Prospectus
Supplement via the Trustee's Internet Website. The Trustee will make no
representations or warranties as to the accuracy or completeness of such
documents and will assume no responsibility therefor.
The Trustee's Internet Website shall be located at
"www.ctslink.com/cmbs" or at such other address as shall be specified by the
Trustee from time to time in the Trustee Report and in one or more written
notices delivered to the other parties hereto, the Controlling Class
Representative (if any), the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's Internet Website and
electronic bulletin board, the Trustee may require registration and the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Trustee Report and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) By 3:30 p.m. New York City time on the second Business Day after
each Determination Date, the Master Servicer shall deliver to the Trustee the
CMSA Loan Periodic Update File, reflecting information as of the close of
business on the last day of the Collection Period, in a mutually agreeable
electronic format. Such CMSA Loan Periodic Update File and any written
information supplemental thereto shall include such information with respect to
the Mortgage Loans that is required by the Trustee for purposes of making the
calculations and preparing the reports for which the Trustee is responsible
pursuant to Section 4.01, this Section 4.02, Section 4.05 or any other section
of this Agreement, as set forth in written specifications or guidelines issued
by the Trustee from time to time. Such information may be delivered by the
Master Servicer to the Trustee by telecopy or in such electronic or other form
as may be reasonably acceptable to the Trustee and the Master Servicer. The
Special Servicer shall from time to time (and, in any event, as may be
reasonably required by the Master Servicer) provide the Master Servicer with
such information in its possession regarding the Specially Serviced Mortgage
Loans and REO Properties as may be necessary for the Master Servicer to prepare
each report and any supplemental information to be provided by the Master
Servicer to the Trustee.
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Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. The Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare, or cause to be prepared, and mail to
each Person who at any time during the calendar year was a Certificateholder (i)
a statement containing the aggregate information set forth on page 2 of Exhibit
E-1 hereto for such calendar year or applicable portion thereof during which
such person was a Certificateholder and (ii) such other customary information as
the Trustee deems necessary or desirable for Certificateholders to prepare their
federal, state and local income tax returns, including the amount of original
issue discount accrued on the Certificates, if applicable. The obligations of
the Trustee in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code. As soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to such Certificateholder such information regarding the
Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Trustee. The Master Servicer and the Special Servicer shall
promptly provide to the Depositor, the Tax Administrator and the Trustee such
information regarding the Mortgage Loans and the Mortgaged Properties as such
party may reasonably request and that has been furnished to, or may otherwise be
in the possession of, the Master Servicer or the Special Servicer, as the case
may be.
SECTION 4.03. P&I Advances; Advances relating to the Master Servicer
Remittance Amount.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall, subject Section 4.03(c), either (i) remit from
its own funds to the Trustee for deposit into the Distribution Account an amount
equal to the aggregate amount of P&I Advances, if any, to be made in respect of
the related Distribution Date, (ii) apply amounts held in the Collection Account
for future distribution to Certificateholders in subsequent months in discharge
of any such obligation to make P&I Advances, or (iii) make P&I Advances in the
form of any combination of (i) and (ii) aggregating the total amount of P&I
Advances to be made. Any amounts held in the Collection Account for future
distribution and so used to make P&I Advances shall be appropriately reflected
in the Master Servicer's records and replaced by the Master Servicer by deposit
in the Collection Account prior to the next succeeding Master Servicer
Remittance Date (to the extent not previously replaced through the deposit of
Late Collections of the delinquent principal and interest in respect of which
such P&I Advances were made). If, as of 3:30 p.m., New York City time, on any
P&I Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the Officer's Certificate and other documentation
related to a determination of nonrecoverability of a P&I Advance pursuant to
Section 4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted on such date, then the Trustee shall
provide notice of such failure to the Master Servicer by facsimile transmission
as soon as possible, but in any event before 4:30 p.m., New
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York City time, on such P&I Advance Date. If after such notice the Trustee does
not receive the full amount of such P&I Advances by 6:00 p.m., New York City
time, on such P&I Advance Date, then the Trustee shall (not later than 11:00
a.m., New York City time, on the related Distribution Date) make, and if the
Trustee fails to do so, any Fiscal Agent shall (not later than 12:00 noon, New
York City time, on the related Distribution Date) make, the portion of such P&I
Advances that was required to be, but was not, made or remitted, as the case may
be, by the Master Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Monthly Payments (other than Balloon Payments)
and any Assumed Monthly Payments, in each case net of any related Master
Servicing Fees and Workout Fees, due or deemed due, as the case may be, in
respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to
their respective Balloon Payments) and any REO Mortgage Loans on their
respective Due Dates during the related Collection Period, in each case to the
extent such amount was not paid by or on behalf of the related Borrower or
otherwise collected as of the close of business on the related Determination
Date; provided that, if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then the interest portion of any P&I Advance required
to be made in respect of such Required Appraisal Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal the
product of (i) the amount of the interest portion of such P&I Advance that would
otherwise be required to be made in respect of such Required Appraisal Loan for
such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which shall equal the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, and the
denominator of which shall equal the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer (or, if applicable, the Trustee or any Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable, good faith judgment and shall be evidenced by an Officer's
Certificate delivered to the Depositor, to the Special Servicer, to the
Controlling Class Representative and, if made by the Master Servicer, to the
Trustee (on or before the related P&I Advance Date in the case of a proposed P&I
Advance), setting forth the basis for such determination, accompanied by a copy
of an Appraisal of the related Mortgaged Property or REO Property performed
within the 12 months preceding such determination by a Qualified Appraiser, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that the Person making such
determination may have obtained and that support such determination. The Trustee
and any Fiscal Agent shall be entitled to conclusively rely on any
nonrecoverability determination made by the Master Servicer with respect to a
particular P&I Advance. The Special Servicer shall promptly furnish any party
required to make P&I Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and REO Properties as such party
required to make P&I Advances may reasonably request.
(d) The Master Servicer, the Trustee and any Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each P&I Advance made thereby (with its own
funds), and compounded monthly, for so long as such P&I Advance is outstanding
(or, if such P&I Advance was made prior to the end of any grace period
applicable to the subject
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delinquent Monthly Payment, for so long as such P&I Advance is outstanding
following the end of such grace period). Such compound interest shall be
payable: (i) at any time, out of Default Charges collected on the particular
Mortgage Loan or REO Mortgage Loan as to which such P&I Advance relates; and
(ii) to the extent that such Default Charges are insufficient, but only with
respect to that portion of such P&I Advance that has been or is being reimbursed
pursuant to this Agreement, out of general collections on the Mortgage Loans and
REO Properties on deposit in the Collection Account. The Master Servicer shall
reimburse itself, the Trustee or any Fiscal Agent, as applicable, for any
outstanding P&I Advance made thereby as soon as practicable after funds
available for such purpose are deposited in the Collection Account, and in no
event shall interest accrue in accordance with this Section 4.03(d) on any P&I
Advance as to which the corresponding Late Collection was received as of the
related P&I Advance Date.
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01(a), the
Trustee shall determine the amount, if any, by which (i) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then the Class Principal Balances of the Class
D, Class C, Class B-8, Class B-7, Class B-6, Class B-5, Class B-4, Class B-3,
Class B-2, Class B-1, Class A-5, Class A-4, Class A-3, Class A-2 and Class A-1C
Certificates shall be reduced sequentially, in that order, until such excess is
reduced to zero; provided that, no such Class of Certificates shall have its
Class Principal Balance reduced unless and until the Class Principal Balance of
each other Class of Certificates, if any, listed in front of it has been reduced
to zero; and provided, further, that if after the foregoing reductions, the
amount described in clause (i) of the preceding sentence still exceeds the
amount described in clause (ii) of such sentence, then the respective Class
Principal Balances of the Class A-1A and Class A-1B Certificates shall be
reduced on a pro rata basis in accordance with the relative sizes of such Class
Principal Balances, until any such remaining excess is reduced to zero. All such
reductions in the Class Principal Balances of the respective Classes of the
Principal Balance Certificates shall constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(i), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests, exceeds (ii) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the Uncertificated Principal Balances of REMIC II
Regular Interest D, REMIC II Regular Interest C, REMIC II Regular Interest B-8,
REMIC II Regular Interest B-7, REMIC II Regular Interest B-6, REMIC II Regular
Interest B-5, REMIC II Regular Interest B-4, REMIC II Regular Interest B-3,
REMIC II Regular Interest B-2, REMIC II Regular Interest B-1, REMIC II Regular
Interest A-5, REMIC II Regular Interest A-4, REMIC II Regular Interest A-3,
REMIC II Regular Interest A-2 and REMIC II Regular Interest A-1C, shall be
reduced sequentially, in that order, until such excess is reduced to zero;
provided that, no such REMIC II Regular Interest shall have its Uncertificated
Principal Balance reduced unless and until the Uncertificated Principal Balance
of each other REMIC II Regular Interest, if any, listed in front of it has been
reduced to zero; and provided, further, that if after the foregoing reductions,
the amount described in clause (i) of the preceding sentence still exceeds the
amount described in clause (ii) of such sentence, then the respective
Uncertificated Principal Balances of REMIC II Regular Interest A-1A and REMIC II
Regular Interest A-1B shall be reduced on a pro rata basis in accordance with
the relative sizes of such Uncertificated Principal Balances, until any such
remaining
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excess is reduced to zero. All such reductions in the Uncertificated Principal
Balances of the respective REMIC II Regular Interests shall be deemed to
constitute allocations of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(j),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to the extent
necessary to equal the Stated Principal Balance of the related Mortgage Loan or
REO Mortgage Loan, as the case may be (or, if applicable in cases involving the
substitution of multiple Replacement Mortgage Loans, the aggregate Stated
Principal Balance of each and every related Mortgage Loan and/or REO Mortgage
Loan, as the case may be), that will be outstanding immediately following such
Distribution Date. All such reductions in the Uncertificated Principal Balances
of the respective REMIC I Regular Interests shall be deemed to constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer and/or Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions to be made pursuant to Section 4.01, the preparation of the
Trustee Reports pursuant to Section 4.02(a) and the actual and deemed
allocations of Realized Losses and Additional Trust Fund Expenses to be made
pursuant to Section 4.04. The Trustee shall calculate the Available Distribution
Amount for each Distribution Date and shall allocate such amount among
Certificateholders in accordance with this Agreement. Absent actual knowledge of
an error therein, the Trustee shall have no obligation to recompute, recalculate
or otherwise verify any information provided to it by the Master Servicer. The
calculations by the Trustee contemplated by this Section 4.05 shall, in the
absence of manifest error, be presumptively deemed to be correct for all
purposes hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-6; provided, however, that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Class S, Class A, Class B-1
and Class B-2 Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Class S, Class A-1A, Class A-1B,
Class A-1C, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1 and Class B-2
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances (or, in the case of the Class S Certificates,
initial Certificate Notional Amounts) as of the Closing Date of not less than
$10,000 and in any whole dollar denomination in excess thereof. The other
Regular Interest Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances as of the Closing Date
of not less than $100,000 and in any whole dollar denomination in excess
thereof. The Residual Interest Certificates and the Class E Certificates will be
issuable only in denominations representing Percentage Interests in the related
Class of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Norwest Center, Sixth and Marquette, MAC#
N9303-121, Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee is hereby
initially appointed (and hereby agrees to act in accordance with the terms
hereof) as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Trustee may
appoint, by a written instrument delivered to the other parties hereto, any
other bank or trust company to act as Certificate Registrar under such
conditions as the Trustee may prescribe,
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provided that the Trustee shall not be relieved of any of its duties or
responsibilities hereunder as Certificate Registrar by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its predecessor's
duties as Certificate Registrar. The Depositor, the Master Servicer, the Special
Servicer and the Tax Administrator shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and
such request states that such Holders desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, within 30 days after the receipt of such
request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to, or deliver to the
requesting Holders a copy of, the most recent list of Certificateholders held by
the Certificate Registrar (which list shall be current as of a date no earlier
than 30 days prior to the Trustee's receipt of such request). Every
Certificateholder, by receiving such access, acknowledges that neither the
Certificate Registrar nor the Trustee will be held accountable in any way by
reason of the disclosure of any information as to the names and addresses of any
Certificateholder regardless of the source from which such information was
derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate is
to be made without registration under the Securities Act (other than in
connection with the initial issuance of the Certificates or a transfer of any
Non-Registered Certificate by the Depositor), then the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached hereto as
Exhibit F-1A; or (ii) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as Exhibit F-1B
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached hereto either as Exhibit F-2A or as Exhibit
F-2B; or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect
that such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the Tax Administrator, the
Trustee, any Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate or interest therein without
registration or qualification. Any Certificateholder desiring to effect a
transfer, sale, pledge or other disposition of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor,
DLJSC, the Trustee, any Fiscal Agent, the Master Servicer, the Special Servicer,
the Tax Administrator and the Certificate Registrar against any liability that
may result if such transfer, sale, pledge or other disposition is not exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.
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(c) No transfer of a Subordinated Certificate or any interest
therein shall be made (A) to any retirement plan or other employee benefit plan,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of such Certificate or interest therein by the prospective Transferee
would result in a violation of Section 406 of ERISA or Section 4975 of the Code
or would result in the imposition of an excise tax under Section 4975 of the
Code. Except in connection with the initial issuance of the Subordinated
Certificates or any transfer of a Subordinated Certificate by the Depositor or,
in the case of a Book-Entry Subordinated Certificate, any transfer of such
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03(c), the Certificate Registrar shall refuse to
register the transfer of a Subordinated Certificate unless it has received from
the prospective Transferee, either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) a certification to the
effect that the purchase and continued holding of such Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel (which Opinion of Counsel shall not be an expense of
the Trustee, the Certificate Registrar or the Trust) which otherwise establish
to the reasonable satisfaction of the Trustee that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or result in
the imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of certification attached hereto as Exhibit G is
acceptable for purposes of the preceding sentence. Each Transferee of an
interest in any Book-Entry Subordinated Certificate shall be deemed to have
represented and warranted that either: (i) such Transferee is not a Plan and is
not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and continued holding of such Certificate or interest therein
by such Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transactions Class Exemption 95-60.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Interest Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under
clause (ii)(A) below to deliver payments to a Person other than such
Person and to have irrevocably authorized the Trustee under clause (ii)(B)
below to negotiate the terms of any mandatory disposition and to execute
all instruments of Transfer and to do all other things necessary in
connection with any such disposition. The rights of each Person acquiring
any Ownership Interest in a Residual Interest Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall be a Permitted Transferee and
shall promptly notify the Tax Administrator and the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the
Transfer of any Residual Interest Certificate until its receipt, of
an affidavit and agreement substantially in the form attached hereto
as Exhibit H-1 (a "Transfer Affidavit and
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Agreement"), from the proposed Transferee, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the
Residual Interest Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership
Interest in a Residual Interest Certificate it will endeavor to
remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Interest Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such
Residual Interest Certificate and (2) not to transfer its Ownership
Interest in such Residual Interest Certificate unless it provides to
the Certificate Registrar and the Trustee a certificate
substantially in the form attached hereto as Exhibit H-2 stating
that, among other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to give the Tax Administrator and the Trustee
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Interest Certificate if it is, or is holding an
Ownership Interest in a Residual Interest Certificate on behalf of,
a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Residual Interest Certificate in violation of the provisions of
this Section 5.02(d), then the last preceding Holder of such
Residual Interest Certificate that was in compliance with the
provisions of this Section 5.02(d) shall be restored, to the extent
permitted by law, to all rights as Holder thereof retroactive to the
date of registration of such Transfer of such Residual Interest
Certificate. None of the Depositor, the Trustee or the Certificate
Registrar, shall be under any liability to any Person for any
registration of Transfer of a Residual Interest Certificate that is
in fact not permitted by this Section 5.02(d) or for making any
payments due on such Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the provisions of
this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that retroactive
restoration of the rights of the preceding Holder of such Residual
Interest Certificate as described in clause (ii) (A) above shall be
invalid, illegal or unenforceable, the Trustee shall have the right
but not the obligation, to cause the transfer of such Residual
Interest Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee
shall not be liable to any Person having an Ownership
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Interest in such Residual Interest Certificate or any other Person
as a result of its exercise of such discretion. Such purported
Transferee shall promptly endorse and deliver such Residual Interest
Certificate in accordance with the instructions of the Trustee. Such
Permitted Transferee may be the Trustee itself or any Affiliate of
the Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished
to it by the other parties hereto necessary to compute any tax imposed (A)
as a result of the Transfer of an Ownership Interest in a Residual
Interest Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Residual Interest Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds an Ownership Interest in a Residual Interest
Certificate having as among its record holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto
shall furnish to the Tax Administrator all information in its possession
necessary for the Tax Administrator to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the Tax Administrator for providing such
information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Tax Administrator the
following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not result in an Adverse Rating Event with respect
to any Class of Rated Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the Tax Administrator, obtained at the expense of
the party seeking such modification of, addition to or elimination
of such provisions (but in no event at the expense of the Trustee,
the Tax Administrator or the Trust), to the effect that doing so
will not (1) cause any REMIC Pool to cease to qualify as a REMIC or
be subject to an entity-level tax caused by the Transfer of any
Residual Interest Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a Person that is not
a Permitted Transferee.
(e) The Trust has not been registered as an investment company under
the Investment Company Act. Accordingly, no transfer of any Class B-3, Class
B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class C, Class D or Class E
Certificate shall be made to any Person other than an Institutional Accredited
Investor or a Qualified Institutional Buyer, and no transfer of any Residual
Interest Certificate shall be made to any Person other than a Qualified
Institutional Buyer. If a transfer of any such Certificate is to be made, then
the Trustee shall require, in order to assure compliance with the foregoing,
that the prospective transferee of such Certificate (or the transferor on its
behalf) certify in writing that the prospective transferee is a Qualified
Institutional Buyer or, alternatively, but solely in the case of a Class B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class C, Class D or Class
E Certificate, an Institutional Accredited Investor.
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(f) If a Person is acquiring any Non-Registered Certificate,
Subordinated Certificate or Residual Interest Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the applicable foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as set forth in Subsections (b), (c), (d) and/or (e), as appropriate, of this
Section 5.02.
(g) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(h) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class evidencing
a like aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(i) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(j) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(k) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(l) The Certificate Registrar or the Trustee shall provide to each
of the other parties hereto, upon reasonable written request and at the expense
of the requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A, Class B-1 and Class B-2 Certificates
shall, in the case of each Class thereof, initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c), transfer of such Certificates may not be
registered by the Certificate Registrar unless such transfer is to a successor
Depository that agrees to hold such Certificates for the respective Certificate
Owners with Ownership Interests therein. Such Certificate Owners shall hold and,
subject to Section 5.02(c), transfer their respective Ownership Interests in and
to such Certificates through the book-entry facilities of the Depository and,
except as provided in Section 5.03(c) below, shall
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not be entitled to fully registered, physical Certificates ("Definitive
Certificates") in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) The Depositor, the Master Servicer, the Special Servicer, the
Tax Administrator, the Trustee, any Fiscal Agent and the Certificate Registrar
may for all purposes, including the making of payments due on the Book-Entry
Certificates, deal with the Depository as the authorized representative of the
Certificate Owners with respect to such Certificates for the purposes of
exercising the rights of Certificateholders hereunder. The rights of Certificate
Owners with respect to the Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by Certificateholders
and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
discharge properly its responsibilities with respect to any Class of Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository with respect to any Class of Book-Entry Certificates (or any
portion of any Class thereof), the Certificate Registrar shall notify all
affected Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of any Class of Book-Entry Certificates (or any portion of any Class
thereof) by the Depository, accompanied by registration instructions from the
Depository for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion thereof) to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Tax Administrator, the Trustee or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Book-Entry Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage
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Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable
fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC Pool, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Tax Administrator, the
Trustee, any Fiscal Agent, the Certificate Registrar and any agent of any of
them may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, and none of the Depositor,
the Master Servicer, the Special Servicer, the Tax Administrator, the Trustee,
any Fiscal Agent, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
be substantially in the form of paragraph 1 of Exhibit L-1 hereto (or such other
form as shall be reasonably acceptable to the Trustee) and shall specify the
Class and Certificate Principal Balance or Certificate Notional Amount, as the
case may be, of the Book-Entry Certificate beneficially owned; provided,
however, that the Trustee shall not knowingly recognize such Person as a
Certificate Owner if such Person, to the knowledge of a Responsible Officer of
the Trustee, acquired its Ownership Interest in a Book-Entry Certificate in
violation of Section 5.02(c), or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Trustee
from the Depository, Depository Participants and/or indirect participating
brokerage firms for which Depository Participants act as agents, with respect to
the identity of a Certificate Owner. The Trustee shall exercise its reasonable
discretion in making any determination under this Section 5.06(b) and shall
afford any Person providing information with respect to its beneficial ownership
of any Book-Entry Certificate an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer and
the Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
the Master Servicer or the Special Servicer.
Subject to the following paragraph, each of the Depositor, the
Master Servicer and the Special Servicer shall each keep in full effect its
existence, rights and franchises as a corporation, bank, trust company,
partnership, limited liability company, association or other legal entity under
the laws of the jurisdiction wherein it was organized, and each shall obtain and
preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets to any Person, in which case, any Person
resulting from any merger or consolidation to which the Depositor, the Master
Servicer or the Special Servicer shall be a party, or any Person succeeding to
the business of the Depositor, the Master Servicer or the Special Servicer,
shall be the successor of the Depositor, the Master Servicer or the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that no successor or
surviving Person shall succeed to the rights of the Master Servicer or the
Special Servicer unless such succession will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, and the Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust, the Trustee or the Certificateholders
for any action taken or not taken in good faith pursuant to this Agreement or
for errors in judgment; provided, however, that this provision shall not protect
the Depositor, the Master Servicer or the Special Servicer against any liability
to the Trust, the Trustee or the Certificateholders for the breach of a
representation or warranty made by such party herein, or against any expense or
liability specifically required to be borne by such party without right of
reimbursement pursuant to the terms hereof, or against any liability which would
otherwise be imposed by reason of misfeasance, bad faith or negligence in the
performance of, or reckless disregard of, such party's obligations or duties
hereunder. The Depositor, the Master Servicer, the Special Servicer, and any
director, member, manager,
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officer, employee or agent of any such party may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, the Special Servicer, and any director, member, manager, officer,
employee or agent of any such party shall be indemnified and held harmless by
the Trust out of the Collection Account against any loss, liability, cost or
expense (including reasonable legal expenses) incurred in connection with any
legal action relating to this Agreement or the Certificates, other than any
loss, liability, cost or expense: (i) specifically required to be borne thereby
pursuant to the terms hereof or otherwise incidental to the performance of
obligations and duties hereunder, including, in the case of the Master Servicer
or Special Servicer, the prosecution of an enforcement action in respect of any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement); or (ii)
incurred in connection with any legal action against such party resulting from
any breach of a representation or warranty made herein, any misfeasance, bad
faith or negligence in the performance of, or reckless disregard of, obligations
or duties hereunder or any willful or negligent violation of applicable law.
None of the Depositor, the Master Servicer or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal action unless
such action is related to its respective duties under this Agreement and, except
in the case of a legal action the costs of which it is specifically required
hereunder to bear, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer or the
Special Servicer may in its discretion undertake any such action which it may
reasonably deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall be expenses, costs and
liabilities of the Trust, and the Depositor, the Master Servicer and the Special
Servicer shall be entitled to be reimbursed therefor from the Collection Account
as provided in Section 3.05(a).
In addition, neither the Master Servicer nor the Special Servicer
shall have any liability with respect to, and each shall be entitled to rely as
to the truth of the statements made and the correctness of the opinions
expressed therein on, any certificates or opinions furnished to the Master
Servicer or the Special Servicer, as the case may be, and conforming to the
requirements of this Agreement. Each of the Master Servicer and the Special
Servicer may rely in good faith on information provided to it by the other
(unless the Master Servicer and the Special Servicer are the same Person or
Affiliates) and by the Borrowers, and will have no duty to investigate or verify
the accuracy thereof.
(c) Neither the Master Servicer nor the Special Servicer shall be
obligated to commence any legal action to enforce any rights or remedies of the
Trust relating to or arising from, or otherwise incur any liabilities, costs,
changes, fees or other expenses relating to or arising from, any breach by the
Trustee, the Tax Administrator, any Fiscal Agent or the Depositor in this
Agreement.
SECTION 6.04. Master Servicer and Special Servicer Not to Resign.
The Master Servicer and the Special Servicer may each resign from
the obligations and duties hereby imposed on it, upon a determination that its
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it (the other activities of the Master Servicer or the Special Servicer,
as the case may be, so causing such a conflict being of a type and nature
carried on by the Master Servicer or the Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of the Master Servicer or the Special Servicer, as applicable, shall be
evidenced by an Opinion of Counsel to such effect which shall be delivered to
the Trustee. Unless applicable law requires the Master Servicer's or the Special
Servicer's
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(as the case may be) resignation to be effective immediately, and the Opinion of
Counsel delivered pursuant to the prior sentence so states, no such resignation
shall become effective until the Trustee or other successor shall have assumed
the responsibilities and obligations of the resigning party in accordance with
Section 6.06 or Section 7.02 hereof; provided that, if no successor master
servicer or special servicer, as applicable, shall have been so appointed and
have accepted appointment within 90 days after the Master Servicer or Special
Servicer, as the case may be, has given notice of such resignation, the
resigning Master Servicer or Special Servicer, as applicable, may petition any
court of competent jurisdiction for the appointment of a successor master
servicer or special servicer, as applicable.
In addition, the Master Servicer and the Special Servicer shall each
have the right to resign at any other time provided that (i) a willing successor
thereto (including any such successor proposed by the resigning party)
acceptable to the Depositor has been found, (ii) each of the Rating Agencies
confirms in writing that the successor's appointment will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates, (iii) the
resigning party pays all costs and expenses in connection with such transfer,
and (iv) the successor accepts appointment prior to the effectiveness of such
resignation.
Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, none of the Master Servicer or the Special
Servicer shall (except in connection with any resignation thereby permitted
pursuant to the prior paragraph or as otherwise expressly provided herein,
including the provisions of Section 3.22 and/or Section 6.02) assign or transfer
any of its rights, benefits or privileges hereunder to any other Person or
delegate to, subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by it
hereunder. If, pursuant to any provision hereof, the duties of the Master
Servicer or the Special Servicer are transferred to a successor thereto, the
entire amount of compensation payable to the Master Servicer or the Special
Servicer as the case may be, that accrues pursuant hereto from and after the
date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of
the Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Trustee, the Controlling Class Representative and each Rating
Agency, upon reasonable notice, during normal business hours access to all
records maintained by it in respect of its rights and obligations hereunder and
access to such of its officers as are responsible for such obligations. Upon
reasonable request, the Master Servicer and the Special Servicer shall each
furnish the Depositor and the Trustee with its most recent publicly available
annual audited financial statements (or, if not available, the most recent
publicly available audited annual financial statements of its corporate parent,
on a consolidated basis) and such other information as is publicly available
regarding its business, affairs, property and condition, financial or otherwise;
provided that none of the Depositor or the Trustee may disclose the contents of
such financial statements or other information to non-affiliated third parties
(other than accountants, attorneys, financial advisors and other representatives
retained to help it evaluate such financial statements or other information),
unless it is required to do so under applicable securities laws or is otherwise
compelled to do so as a matter of law. The Master Servicer and the Special
Servicer may each affix to any such information described in this Section 6.05
provided by it any disclaimer it deems appropriate in its reasonable discretion.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Master Servicer or the Special Servicer hereunder or exercise the rights of the
Master Servicer or the Special Servicer hereunder;
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provided, however, that none of the Master Servicer or the Special Servicer
shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Designation of Special Servicer by the Controlling
Class.
The Holder or Holders of the Certificates representing more than 50%
of the Class Principal Balance of the Controlling Class may at any time and from
time to time designate a Person (other than the Trustee) to replace any existing
Special Servicer or any Special Servicer that has resigned or otherwise ceased
to serve as Special Servicer. Such Holder or Holders shall so designate a Person
to so serve as successor Special Servicer by the delivery to the Trustee, the
Master Servicer and the existing Special Servicer of a written notice stating
such designation. The Trustee shall, promptly after receiving any such notice,
deliver to the Rating Agencies an executed Notice and Acknowledgment in the form
attached hereto as Exhibit I-1. The designated Person shall become the Special
Servicer on the date as of which the Trustee shall have received: (i) written
confirmation from each of the Rating Agencies that the appointment of such
Person will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates; (ii) an Acknowledgment of Proposed Special Servicer in the
form attached hereto as Exhibit I-2, executed by the designated Person; and
(iii) an Opinion of Counsel (which shall not be an expense of the Trustee or the
Trust) substantially to the effect that (A) the designation of such Person to
serve as Special Servicer is in compliance with this Section 6.06, (B) the
designated Person is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (C) the Acknowledgment of
Proposed Special Servicer has been duly authorized, executed and delivered by
the designated Person and (D) upon the execution and delivery of the
Acknowledgment of Proposed Special Servicer, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any existing Special Servicer
shall be deemed to have been terminated simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided that (i) the
terminated Special Servicer shall be entitled to receive, in connection with its
termination, payment out of the Certificate Account of all of its accrued and
unpaid Special Servicing Fees and reimbursement from the successor Special
Servicer of all outstanding Servicing Advances made by the terminated Special
Servicer and all unpaid Advance Interest accrued on such outstanding Servicing
Advances (in which case the successor Special Servicer shall be deemed to have
made such Servicing Advances at the same time that the terminated Special
Servicer had actually made them), (ii) the resigning or terminated Special
Servicer shall be entitled to any Workout Fees thereafter received on any
Mortgage Loans that were Corrected Mortgage Loans at the time of the termination
(but only if and to the extent permitted by Section 3.11(c)) and (iii) such
Special Servicer shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such resignation or termination; and provided, further, that
the terminated Special Servicer shall continue to be obligated to pay and
entitled to receive all other amounts accrued or owing by or to it under this
Agreement on or prior to the effective date of such termination. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the transfer of the terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days to the replacement Special Servicer for administration
by it of all cash amounts that at the time are or should have been credited by
the Special Servicer to the REO Account or any Servicing Account or should have
been delivered to the Master Servicer or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or REO Property. If the
termination of the Special Servicer was without cause, the reasonable
out-of-pocket costs and expenses of any such transfer shall in no
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event be paid out of the Trust Fund, and instead shall be paid by the successor
Special Servicer or the Holders of the Controlling Class that voted to remove
the Special Servicer, as such parties may agree. If the Controlling Class of
Certificates are Book-Entry Certificates, then the rights set forth in this
Section 6.06 with respect to replacing the Special Servicer may be exercised by
the related Certificate Owners holding beneficial ownership of Certificates
representing more than 50% of the Class Principal Balance of the Controlling
Class.
SECTION 6.07. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as otherwise set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take any action (including
for this purpose, omitting to take a particular action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, be considered by other
Persons to violate the Servicing Standard, then the Master Servicer or the
Special Servicer may (but need not) seek the approval of the Certificateholders
to such action by delivering to the Trustee a written notice that (a) states
that it is delivered pursuant to this Section 6.07, (b) identifies the
Percentage Interest in each Class of Certificates beneficially owned by the
Master Servicer or the Special Servicer, as the case may be, or by an Affiliate
thereof and (c) describes in reasonable detail the action that the Master
Servicer or the Special Servicer, as the case may be, proposes to take. The
Trustee, upon receipt of such notice, shall forward it to the Certificateholders
(other than the Master Servicer and its Affiliates or the Special Servicer and
its Affiliates, as appropriate), together with a request for approval by the
Certificateholders of each such proposed action. If at any time
Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Trustee shall
be entitled to reimbursement from the Master Servicer or the Special Servicer,
as applicable, for the reasonable expenses of the Trustee incurred pursuant to
this paragraph. It is not the intent of the foregoing provision that the Master
Servicer or the Special Servicer be permitted to invoke the procedure set forth
herein with respect to routine servicing matters arising hereunder, but rather
in the case of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Collection Account any amount required to be so deposited under this
Agreement, which failure continues unremedied for two Business Days
following the date on which such deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or the Collection Account, or to remit to the Master Servicer for
deposit into the Collection Account, any amount required to be so
deposited or remitted under this Agreement, which failure continues
unremedied for two Business Days following the date on which such deposit
or remittance, as the case may be, was first required to be made; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any P&I Advance Date, the full
amount of P&I Advances required to be made on such date or, on any Master
Servicer Remittance Date, the full amount of the Master Servicer
Remittance Amount required to be remitted on such date, which failure
continues unremedied until 5:00 p.m. (New York City time) on such P&I
Advance Date or Master Servicer Remittance Date, as the case may be;
provided however, that the failure to make a P&I Advance one time in any
12-month period which is corrected by 10:00 a.m. (New York City time) on
the related Distribution Date shall not constitute an Event of Default; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unmade for a period of three Business Days following the date on
which notice shall have been given to the Master Servicer by the Trustee
as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or request
the Master Servicer to make) any Servicing Advance required to be made by
it hereunder, which Servicing Advance remains unmade for a period of three
Business Days following the date on which notice has been given to the
Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement, which
failure continues unremedied for a period of 30 days (or, in the case of
payment of insurance premiums, for a period of 15 days) after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto or to the Master Servicer or
the Special Servicer, as the case may be, (with a copy to each other party
hereto) by the Holders of Certificates entitled to at least 25% of the
Voting Rights, provided, however, that with respect to any such breach
which is not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional
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cure period of 30 days to effect such cure so long as the Master Servicer
or the Special Servicer, as the case may be, has commenced to cure such
failure within the initial 30-day period and has provided the Trustee with
an Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(vii) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement
that materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 60 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the Master
Servicer or the Special Servicer, as the case may be, (with a copy to each
other party hereto) by the Holders of Certificates entitled to at least
25% of the Voting Rights; or
(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 or the Special Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 30 days;
or
(ix) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(x) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(xi) either (A) the Trustee shall have received notice from either
of the Rating Agencies to the effect that, or the Trustee shall otherwise
have actual knowledge (based on a written publication or notification by
such Rating Agency) that, the continuation of the Master Servicer or the
Special Servicer in such capacity would result in a qualification,
downgrade or withdrawal of any rating assigned thereby to any Class of
Certificates or (B) one or more ratings assigned by either Rating Agency
to the Certificates shall have been qualified as a result of the Master
Servicer or Special Servicer, as the case may be, acting in such capacity;
or
(xii) one or more ratings assigned by either Rating Agency to the
Certificates shall have been downgraded or withdrawn as a result of the
Master Servicer or Special Servicer, as the case may be, acting in such
capacity.
When a single entity acts as Master Servicer and Special Servicer, or in any two
of the foregoing capacities, an Event of Default (other than an event described
in clauses (xi) and (xii) above) in one capacity shall constitute an Event of
Default in each such capacity.
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(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor and Trustee each may, and at the written direction of the Holders of
Certificates entitled to not less than 25% of the Voting Rights or if the
relevant Event of Default is one described in any of clauses (iii) and (viii)
through (xii) of Section 7.01(a), the Trustee shall (subject to applicable
bankruptcy or insolvency law in the case of clauses (viii) through (x) of
Section 7.01(a)), terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Each of the Master
Servicer and the Special Servicer agrees that, if it is terminated pursuant to
this Section 7.01(b), it shall promptly (and in any event no later than ten
Business Days subsequent to its receipt of the notice of termination) provide
the Trustee with all documents and records requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall otherwise cooperate with the Trustee in
effecting the termination of the Master Servicer's or Special Servicer's, as the
case may be, responsibilities and rights hereunder, including the transfer
within two Business Days to the Trustee for administration by it of all cash
amounts that at the time are or should have been credited by the Master Servicer
to the Collection Account, the Distribution Account or any Servicing Account or
Reserve Account held by it (if it is the Defaulting Party) or by the Special
Servicer to the REO Account, the Collection Account or any Servicing Account or
Reserve Account held by it (if it is the Defaulting Party) or that are
thereafter received by or on behalf of it with respect to any Mortgage Loan or
REO Property (provided, however, that the Master Servicer and the Special
Servicer each shall, if terminated pursuant to this Section 7.01(b), continue to
be obligated to pay and entitled to receive all amounts accrued or owing by or
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances or otherwise, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). Any costs or expenses (including
those of any other party hereto) incurred in connection with any actions to be
taken by the Master Servicer or Special Servicer pursuant to this paragraph
shall be borne by the Master Servicer or Special Servicer, as the case may be
(and, in the case of the Trustee's costs and expenses, if not paid within a
reasonable time, shall be borne by the Trust out of the Collection Account).
(c) In the event the initial Master Servicer is terminated solely
due to an Event of Default under Section 7.01(a)(xi), and if the terminated
initial Master Servicer delivers to the Trustee proposed bid materials within
five Business Days after such termination, the Trustee shall, within the next
five Business Days, using such bid materials, solicit good faith bids for the
rights to master service the Mortgage Loans under this Agreement from three
Qualified Bidders (as defined below) or, if three Qualified Bidders cannot be
located, then from as many Persons as the Trustee can determine are Qualified
Bidders. The Trustee shall have no obligation to review and shall have no
liability or responsibility for the information in the bid materials, and shall
be entitled to include a disclaimer to such effect with such bid materials. The
bid proposal shall require any Successful Bidder (as defined below), as a
condition of such bid, to enter into this
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Agreement as successor Master Servicer, and shall agree to be bound by the terms
hereof, within 30 days after the termination of the initial Master Servicer;
provided, however, that the initial Master Servicer may request and obtain an
additional 15 days for such sale and assumption to be completed so long as the
initial Master Servicer delivers to the Trustee an Officer's Certificate stating
that the sale and assumption of the rights to master service the Mortgage Loans
cannot be completed in the initial 30-day period and specifying the reasons. The
Trustee shall solicit bids (i) on the basis of such successor Master Servicer
retaining all Sub-Servicers to continue the primary servicing of the Mortgage
Loans pursuant to the terms of the respective Sub-Servicing Agreements and
entering into a Sub-Servicing Agreement with the terminated Master Servicer to
service each of the Mortgage Loans not subject to a Sub-Servicing Agreement at a
servicing fee rate of 0.028% per annum per Mortgage Loan serviced (each, a
"Servicing Retained Bid") and (ii) on the basis of terminating each Sub-Servicer
and Sub-Servicing Agreement (other than a Designated Sub-Servicer and its
Sub-Servicing Agreement) and having no obligation to enter into a Sub-Servicing
Agreement with the terminated Master Servicer (each, a "Servicing Released
Bid"). The Trustee shall select the Qualified Bidder with the highest cash
Servicing Retained Bid (or, if none, the highest cash Servicing Released Bid)
(the "Successful Bidder") to act as successor Master Servicer hereunder. The
Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof (and, if the successful
bid was a Servicing Retained Bid, to enter into a Sub-Servicing Agreement with
the terminated Master Servicer as contemplated above), no later than 30 days
after the termination of the initial Master Servicer; provided, however, that
the initial Master Servicer may request and obtain an additional 15 days for
such sale and assumption to be completed so long as the initial Master Servicer
delivers to the Trustee an Officer's Certificate stating that the sale and
assumption of the rights to master service the Mortgage Loans cannot be
completed in the initial 30-day period and specifying the reasons.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, including the transfer of the
servicing of the Mortgage Loans, the Trustee shall remit or cause to be remitted
(i) if the successful bid was a Servicing Retained Bid, to the terminated
initial Master Servicer the amount of such cash bid received from the Successful
Bidder (net of expenses in connection with obtaining such bid, including,
without limitation, reasonable attorneys' fees, and out-of-pocket expenses
incurred in connection with transferring the servicing of the Mortgage Loans)
and (ii) if the successful bid was a Servicing Released Bid, to the terminated
initial Master Servicer and each terminated Sub-Servicer its respective Bid
Allocation.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 30 days (or, if the sale period has been
extended as contemplated above, within 45 days) after the termination of the
initial Master Servicer or no Successful Bidder was identified within such
period, the terminated initial Master Servicer shall reimburse the Trustee for
all out-of-pocket expenses incurred by the Trustee in connection with such bid
process, and the Trustee shall have no further obligations under this Section
7.01(c) and may select a successor Master Servicer of its choice and pursuant to
the terms hereof.
A "Qualified Bidder" will be any prospective Master Servicer
candidate reasonably acceptable to the Depositor, which candidate would be
eligible to act as Master Servicer hereunder without causing an Adverse Rating
Event.
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SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to the first paragraph of Section 6.04 or receives a notice of
termination pursuant to Section 7.01, the Trustee shall be the successor in all
respects to the Master Servicer or the Special Servicer, as the case may be, in
its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Master
Servicer or the Special Servicer, as the case may be, by the terms and
provisions hereof, including, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided, however, that any failure to perform such duties or responsibilities
caused by the Master Servicer's or the Special Servicer's, as the case may be,
failure to cooperate or to provide information or monies as required by Section
7.01 shall not be considered a default by the Trustee hereunder; and provided,
further, that, in the case of a resigning or terminated Special Servicer, the
Trustee shall cease to act as successor if an alternative successor is appointed
pursuant to Section 6.06; and, provided, further, that in the case of a
terminated Master Servicer, the Trustee shall cease to act as successor if an
alternative successor is appointed pursuant to Section 7.01(c). Neither the
Trustee nor any other successor shall be liable for any of the representations
and warranties of the resigning or terminated party or for any losses incurred
by the resigning or terminated party pursuant to Section 3.06 hereunder nor
shall the Trustee nor any other successor be required to purchase any Mortgage
Loan hereunder. As compensation therefor, the Trustee shall be entitled to all
fees and other compensation which the resigning or terminated party would have
been entitled to for future services rendered if the resigning or terminated
party had continued to act hereunder. Notwithstanding the above, if it is
unwilling to so act, the Trustee may (and, if it is unable to so act, or if the
Master Servicer or the Special Servicer is the resigning or terminated party and
the Trustee is not approved as an acceptable master servicer or special
servicer, as the case may be, by each Rating Agency, or if the Holders of
Certificates entitled to a majority of all the Voting Rights so request in
writing, the Trustee shall, subject to Section 6.06 or Section 7.01(c), as
applicable, promptly appoint, or petition a court of competent jurisdiction to
appoint, any established and qualified institution as the successor to the
Master Servicer or the Special Servicer, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or the Special Servicer, as the case may be, hereunder;
provided, however, that such appointment does not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency). No appointment of a successor to the
Master Servicer or the Special Servicer hereunder shall be effective until the
assumption by such successor of all its responsibilities, duties and liabilities
hereunder, and pending such appointment and assumption, the Trustee shall act in
such capacity as hereinabove provided. In connection with any such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.06, the Trustee shall
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give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided, that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi) or clause (xii)
of Section 7.01(a) may be waived only by all of the Certificateholders of the
affected Classes; and provided, further, that if the Trustee was required to
expend any monies in connection with any Event of Default, then such Event of
Default may not be waived unless and until those monies have been reimbursed to
the Trustee (with interest) by the defaulting party. Upon any such waiver of an
Event of Default, such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. No such waiver shall extend
to any subsequent or other Event of Default or impair any right consequent
thereon except to the extent expressly so waived. Notwithstanding any other
provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to the same Voting
Rights with respect to the matters described above as they would if registered
in the name of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right (exercisable subject to
Section 8.01(a)), in its own name and as trustee of an express trust, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
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ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), the Trustee shall examine
them to determine whether they conform to the requirements of this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible or liable for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer, the Special Servicer, any
actual or prospective Certificateholder or Certificate Owner or either Rating
Agency, and accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement.
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25%
(or, as to any particular matter, any higher percentage as may be
specifically provided for hereunder) of the Voting Rights relating to the
time, method and place of conducting any
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proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
(iv) The Trustee shall not be required to take action with respect
to, or be deemed to have notice or knowledge of, any default or Event of
Default (except an Event of Default under Section 7.01(a)(xi)(A) or the
Master Servicer's failure to deliver any monies, including P&I Advances,
or to provide any report, certificate or statement, to the Trustee when
required pursuant to this Agreement) unless a Responsible Officer of the
Trustee shall have received written notice or otherwise have actual
knowledge thereof. Otherwise, the Trustee may conclusively assume that
there is no such default or Event of Default.
(v) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty, except as expressly provided in Section 2.01(c) or Section 2.01(e)
or in its capacity as successor Master Servicer or successor Special
Servicer, (A) to cause any recording, filing, or depositing of this
Agreement or any agreement referred to herein or any financing statement
or continuation statement evidencing a security interest, or to cause the
maintenance of any such recording or filing or depositing or to any
rerecording, refiling or redepositing of any thereof, (B) to cause the
maintenance of any insurance, and (C) to confirm or verify the truth,
accuracy or contents of any reports or certificates of the Master
Servicer, the Special Servicer, any actual or prospective or any
Certificateholder or Certificate Owner or either Rating Agency, delivered
to the Trustee pursuant to this Agreement reasonably believed by the
Trustee to be genuine and without error and to have been signed or
presented by the proper party or parties.
(vi) For as long as the Person that serves as Trustee hereunder also
serves as Custodian, Certificate Registrar and/or Tax Administrator, the
protections, immunities and indemnities afforded to the Trustee hereunder
shall also be afforded to such Person in its capacity as Custodian,
Certificate Registrar and/or Tax Administrator, as the case may be.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and without
error and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, unless (in the
Trustee's reasonable opinion) such Certificateholders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities
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which may be incurred therein or thereby; the Trustee shall not be
required to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not been
waived or cured, to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(iv) neither the Trustee nor any Fiscal Agent appointed thereby
shall be personally liable for any action reasonably taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default and after the
waiver or curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action;
(vi) except as contemplated by Section 8.06 and/or Section 8.14, the
Trustee shall not be required to give any bond or surety in respect of the
execution of the trusts created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested in
it by this Agreement or perform any of its duties hereunder either
directly or by or through agents or attorneys-in-fact, provided that the
use of agents or attorneys-in-fact shall not be deemed to relieve the
Trustee of any of its duties and obligations hereunder (except as
expressly set forth herein);
(viii) neither the Trustee nor any Fiscal Agent appointed thereby
shall be responsible for any act or omission of the Master Servicer or the
Special Servicer (unless the Trustee is acting as Master Servicer or
Special Servicer, as the case may be) or of the Depositor.
(ix) neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance
with any restriction on transfer imposed under Article V under this
Agreement or under applicable law with respect to any transfer of any
Certificate or any interest therein, other than to require delivery of the
certification(s) and/or Opinions of Counsel described in said Article
applicable with respect to changes in registration or record ownership of
Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement; and the Trustee and Certificate Registrar shall have no
liability for transfers, including transfers made through the book-entry
facilities of the Depository or between or among Depository Participants
or beneficial owners of the Certificates, made in
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violation of applicable restrictions except for its failure to perform its
express duties in connection with changes in registration or record
ownership in the Certificate Register.
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than
the statements attributed to, and the representations and warranties of, the
Trustee and/or any Fiscal Agent in Article II, and the signature of the Trustee
set forth on each outstanding Certificate) shall not be taken as the statements
of the Trustee or any Fiscal Agent, and neither the Trustee nor any Fiscal Agent
assumes any responsibility for their correctness. Neither the Trustee nor any
Fiscal Agent makes any representation as to the validity or sufficiency of this
Agreement (except as regards the enforceability of this Agreement against it) or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
any Fiscal Agent shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Master Servicer or the Special Servicer (in each
case, unless the Trustee is acting in such capacity). Neither the Trustee nor
any Fiscal Agent shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee or
such Fiscal Agent, as the case may be, hereunder) or the validity, priority,
perfection or sufficiency of any security, lien or security interest granted to
it hereunder or the filing of any financing statements or continuation
statements, except to the extent set forth in Section 2.01(c) and Section
2.01(e) or to the extent the Trustee is acting as Master Servicer or Special
Servicer and the Master Servicer or Special Servicer, as the case may be, would
be so responsible hereunder. The Trustee shall not be required to record this
Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee (in its individual or any other capacity), any Fiscal
Agent or any Affiliate of either of them may become the owner or pledgee of
Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or an Affiliate of either of them, as the case may be.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and
by Trustee and Fiscal Agent.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Mortgage Loans
through the end of the most recently ended calendar month, as compensation for
all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties of
the Trustee hereunder. As to each Mortgage Loan and REO Mortgage Loan, the
Trustee's Fee shall accrue during each calendar month, commencing with October
1999, at the Trustee's Fee Rate on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan immediately
following the Distribution Date in such calendar month (or, in the case of
October 1999, on a principal amount equal to the Cut-off Date Balance of the
particular Mortgage Loan), whether or not interest is actually collected on each
Mortgage Loan and REO Mortgage Loan. With respect to each Mortgage Loan
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and REO Mortgage Loan, the Trustee's Fee shall accrue from time to time on a
30/360 Basis. The Trustee's Fees (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) shall
constitute the Trustee's sole compensation for such services to be rendered by
it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified and held harmless out of Trust Fund
for and against any loss, liability, claim or expense (including costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
this Agreement, the Certificates, the Mortgage Loans (unless it incurs any such
expense or liability in the capacity of successor Master Servicer or Special
Servicer, in which case such expense or liability will be reimbursable thereto
in the same manner as it would be for any other Master Servicer or Special
Servicer, as the case may be) or any act or omission of the Trustee relating to
the exercise and performance of any of the powers and duties of the Trustee
hereunder, if (but only if) such loss, liability, claim or expense constitutes
an "unanticipated expense" within the meaning of Treasury regulation Section
1.860G-1(b)(3)(ii); provided, however, that neither the Trustee nor any of the
other above specified Persons shall be entitled to indemnification pursuant to
this Section 8.05(b) for (1) allocable overhead, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, (2) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (3)
any loss, liability, claim or expense incurred by reason of any breach on the
part of the Trustee of any of its representations, warranties or covenants
contained herein or any willful misfeasance, bad faith or negligence in the
performance of, or reckless disregard of, the Trustee's obligations and duties
hereunder.
(c) Each of the Master Servicer and the Special Servicer shall
indemnify the Trustee and any Fiscal Agent for and hold each of them harmless
against any loss, liability, claim or expense that is a result of the Master
Servicer's or the Special Servicer's, as the case may be, negligent acts or
omissions in connection with this Agreement, including the negligent use by the
Master Servicer or the Special Servicer, as the case may be, of any powers of
attorney delivered to it by the Trustee pursuant to the provisions hereof and
the Mortgage Loans serviced by the Master Servicer or the Special Servicer, as
the case may be; provided, however, that, if the Trustee has been reimbursed for
such loss, liability, claim or expense pursuant to Section 8.05(b), or any
Fiscal Agent has been reimbursed for such loss, liability, claim or expense
pursuant to Section 8.13, then the indemnity in favor of such Person provided
for in this Section 8.05(c) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(d) Each of the Trustee and any Fiscal Agent shall indemnify the
Master Servicer and the Special Servicer for and hold each of them harmless
against any loss, liability, claim or expense that is a result of the Trustee's
or such Fiscal Agent's, as the case may be, negligent acts or omissions in
connection with this Agreement; provided, however, that if the Master Servicer
or the Special Servicer has been reimbursed for such loss, liability, claim or
expense pursuant to Section 6.03, then the indemnity in favor of such Person
provided for in this Section 8.05(d) with respect to such loss, liability, claim
or expense shall be for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of this
Agreement or the resignation or removal of the Trustee, any Fiscal Agent, the
Master Servicer and the Special Servicer as regards rights and obligations prior
to such termination, resignation or removal.
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SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank,
trust company or association organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation, bank, trust company or
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation, bank, trust company or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In addition, the Trustee shall at all times meet the requirements
of Section 26(a)(1) of the Investment Company Act. Furthermore, the Trustee
shall at all times maintain a long-term unsecured debt rating of no less than
"Aa3" from Moody's and "AA" from Fitch (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates (as confirmed in writing to the Trustee and the
Depositor by such Rating Agency)); provided that the Trustee shall not cease to
be eligible to serve as such based on a failure to satisfy such rating
requirements so long as either: (i) the Trustee maintains a long-term unsecured
debt rating of no less than "Baa2" from Moody's and "BBB" from Fitch (or, in the
case of either Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates (as confirmed in
writing to the Trustee and the Depositor by such Rating Agency)) and a Fiscal
Agent meeting the requirements of Section 8.13 has been appointed by the Trustee
and is then currently serving in such capacity; or (ii) the Trustee maintains a
long-term unsecured debt rating of no less than "A1" from Moody's and "A+" from
Fitch (or, in the case of either Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by such
Rating Agency)) and an Advance Security Arrangement meeting the requirements of
Section 8.14 has been established by the Trustee and is then currently being
maintained. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
corporation, bank, trust company or association serving as Trustee may have
normal banking and trust relationships with the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer and their respective
Affiliates; provided, however, that none of (i) the Depositor, (ii) any Person
involved in the organization or operation of the Depositor or the Trust, (iii)
any Mortgage Loan Seller or (iv) any Affiliate of any of them, may be the
Trustee hereunder.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and all the Certificateholders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee meeting the eligibility requirements of Section 8.06 by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to other parties hereto and to the Certificateholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within ten Business Days, the Master
Servicer shall as soon as practicable) remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the other parties hereto and to the
Certificateholders by the Depositor (or the Master Servicer, as the case may
be).
(c) The Holders of Certificates entitled to at least a majority of
the Voting Rights (or, if such removal is in connection with the Trustee's and
any Fiscal Agent's failure to make any required Advance, 25% of the Voting
Rights) may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor so appointed. All expenses incurred by the
Trustee in connection with its transfer of the Mortgages Files to a successor
trustee following the removal of the Trustee without cause pursuant to this
Section 8.07(c), shall be reimbursed to the removed Trustee within 30 days of
demand therefor, such reimbursement to be made by the Certificateholders that
terminated the Trustee. A copy of such instrument shall be delivered to the
other parties hereto and to the remaining Certificateholders by the successor so
appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the successor trustee
nor any Fiscal Agent appointed by it has a long-term unsecured debt rating of at
least "Aa3" from Moody's and "AA" from Fitch, the Trustee and the Depositor have
received written confirmation from each Rating Agency that has not so assigned
such a rating, to the effect that the appointment of such successor trustee
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates. Notwithstanding anything herein to the contrary, any resignation
or removal of any Trustee shall also result in the resignation or removal of the
Tax Administrator for such Trustee.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian shall become the agent of the
successor trustee), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor trustee shall execute and deliver such instruments and do
such other things as may reasonably
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be required to more fully and certainly vest and confirm in the successor
trustee all such rights, powers, duties and obligations, and to enable the
successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06, and no notice to Holders of Certificates
of the appointment of co-trustee(s) or separate trustee(s) shall be required
under Section 8.08.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or when acting as Master Servicer, Special Servicer or Tax
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every
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instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint at
the Trustee's own expense one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee; provided that if the Custodian is an
Affiliate of the Trustee such consent of the Master Servicer need not be
obtained and the Trustee shall inform the Master Servicer of such appointment.
Each Custodian shall be a depository institution supervised and regulated by a
federal or state banking authority, shall have combined capital and surplus of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall not be the Depositor, either Mortgage
Loan Seller or any Affiliate of the Depositor or either Mortgage Loan Seller,
and shall have in place a fidelity bond and errors and omissions policy, each in
such form and amount as is customarily required of custodians acting on behalf
of FHLMC or FNMA. Each Custodian shall be subject to the same obligations,
standard of care, protection and indemnities as would be imposed on, or would
protect, the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. The appointment of one or more Custodians shall
not relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, the Underwriter, the
Master Servicer, the Special Servicer, the Controlling Class Representative and
each Rating Agency and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
Certificate Owner, access to any documentation regarding the Mortgage Loans or
the other assets of the Trust Fund that are in its possession or within its
control. Such access shall be afforded without charge but only upon reasonable
prior written request and during normal business hours at the offices of the
Trustee designated by it.
(b) The Trustee shall maintain at its offices and, upon reasonable
prior written request and during normal business hours, shall make available for
review by the Depositor, the Underwriter, the Mortgage Loan Sellers, the Rating
Agencies, the Controlling Class Representative and, subject to the
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succeeding paragraph, any Certificateholder, Certificate Owner or Person
identified to the Trustee as a prospective Transferee of a Certificate or an
interest therein, originals and/or copies of the following items (to the extent
such items were prepared by or delivered to the Trustee): (i) the Prospectus,
the Memorandum and any other disclosure document relating to the Certificates,
in the form most recently provided to the Trustee by the Depositor or by any
Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing
Agreement delivered to the Trustee since the Closing Date and any amendments and
exhibits hereto or thereto; (iii) all Trustee Reports and other
Certificateholder Reports delivered to Certificateholders pursuant to Section
4.02(a) since the Closing Date; (iv) all Annual Performance Certifications
delivered by the Master Servicer and the Special Servicer, respectively, to the
Trustee since the Closing Date; (v) all Annual Accountants' Reports caused to be
delivered by the Master Servicer and the Special Servicer, respectively, to the
Trustee since the Closing Date; (vi) the most recent inspection report prepared
by the Master Servicer or the Special Servicer and delivered to the Trustee in
respect of each Mortgaged Property pursuant to Section 3.12(a); (vii) the most
recent quarterly and annual operating statement and rent roll of each related
Mortgaged Property and financial statements of the related Borrower collected by
the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.12(b); (viii) any and all notices and reports delivered to
the Trustee with respect to any Mortgaged Property as to which the environmental
testing contemplated by Section 3.09(c) revealed that neither of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof was satisfied;
(ix) all Unrestricted Servicer Reports and Restricted Servicer Reports delivered
to the Trustee since the Closing Date pursuant to Sections 4.02(b); (x) each of
the Mortgage Files, including any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into or consented to by the Master
Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.20; (xi) the most recent Appraisal for each Mortgage Loan and REO
Property that has been delivered to the Trustee (all Appraisals of Mortgaged
Properties and/or REO Properties shall be delivered to the Trustee by the Master
Servicer or Special Servicer, as applicable, promptly following their having
been obtained or formulated); (xii) any Asset Status Reports delivered to the
Trustee pursuant to Section 3.24 since the Closing Date; (xiii) any and all
Officer's Certificates and other evidence delivered to or by the Trustee to
support its, the Master Servicer's, the Special Servicer's or any Fiscal
Agent's, as the case may be, determination that any Advance was (or, if made,
would be) a Nonrecoverable Advance; and (xiv) any other information that may be
necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under
the Securities Act. The Trustee shall provide copies of any and all of the
foregoing items upon request of any of the parties set forth in the previous
sentence; however, except in the case of the Rating Agencies, the Trustee shall
be permitted to require payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 8.12(b), the
Trustee shall require: (a) in the case of Certificate Owners, a written
confirmation executed by the requesting Person substantially in the form of
Exhibit L-1 hereto (or such other form as may be reasonably acceptable to the
Trustee) generally to the effect that such Person is a beneficial holder of
Book-Entry Certificates and, subject to the last sentence of this paragraph,
will keep such information confidential (except that such Certificate Owner may
provide such information to its auditors, legal counsel and regulators and to
any other Person that holds or is contemplating the purchase of any Certificate
or interest therein (provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential)); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit L-2 hereto (or such other form as
may be reasonably acceptable to the Trustee) generally to the effect that such
Person is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and,
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subject to the last sentence of this paragraph, will otherwise keep such
information confidential. The Holders of the Certificates, by their acceptance
thereof, will be deemed to have agreed, subject to the last sentence of this
paragraph, to keep such information confidential (except that any Holder may
provide any such information obtained by it to its auditors, legal counsel and
regulators and to any other Person that holds or is contemplating the purchase
of any Certificate or interest therein (provided that such other Person confirms
in writing such ownership interest or prospective ownership interest and agrees
to keep such information confidential)). Notwithstanding the foregoing, no
Certificateholder, Certificate Owner or prospective Certificateholder or
Certificate Owner need keep confidential any information received from the
Trustee pursuant to this Section 8.12(b) that has previously been filed with the
Commission, and the Trustee shall not require either of the certifications
contemplated by the second preceding sentence in connection with providing any
information pursuant to this Section 8.12(b) that has previously been filed with
the Commission.
(c) Neither the Trustee nor the Master Servicer shall be liable for
providing or disseminating information in accordance with the terms of this
Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Moody's and "AA" from Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.13(a) shall become the Fiscal Agent on the date as of which the
Trustee and the Depositor have received: (i) if the long-term unsecured debt of
the designated Person is not rated as least "Aa3" from Moody's and "AA" from
Fitch, written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates; (ii) a written agreement whereby the designated
Person is appointed as, and agrees to assume and perform the duties of, Fiscal
Agent hereunder, executed by such designated Person and the Trustee (such
agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which
shall be paid for by the designated Person or the Trustee) substantially to the
effect that (A) the appointment of the designated Person to serve as Fiscal
Agent is in compliance with this Section 8.13, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the related Fiscal Agent Agreement has
been duly authorized, executed and delivered by the designated Person and (D)
upon execution and delivery of the related Fiscal Agent Agreement, the
designated Person shall be bound by the terms of this Agreement and, subject to
customary bankruptcy and insolvency exceptions, that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
Person that acts as Fiscal Agent shall, for so long as it so acts, be deemed a
party to this Agreement for all purposes hereof. Pursuant to the related Fiscal
Agent Agreement, each Fiscal Agent, if any, shall make representations and
warranties with respect to itself that are comparable to those made by the
Trustee pursuant to Section 2.07. Notwithstanding anything contained in this
Agreement to the contrary, any Fiscal Agent shall be entitled to all limitations
on liability, rights of reimbursement and indemnities to which the Trustee is
entitled hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it
were the Trustee.
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(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor Master
Servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent (if any) shall make such Advance when and as required
by the terms of this Agreement on behalf the Trustee as if such Fiscal Agent
were the Trustee hereunder. To the extent that the Fiscal Agent (if any) makes
an Advance pursuant to this Section 8.13 or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the Trustee is entitled
hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the
Trustee, except that all fees and expenses of any Fiscal Agent (other than
interest owed to such Fiscal Agent in respect of unreimbursed Advances) incurred
by such Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor such Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section
8.13 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. Any Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that any Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent in accordance with this Section 8.13(a) shall belong to
the successor Trustee insofar as such appointment is necessary for such
successor Trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto and
the Certificateholders in writing of the appointment, resignation or removal of
any Fiscal Agent.
SECTION 8.14. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement (any or all of the foregoing, individually and collectively, an
"Advance Security Arrangement") for purposes of supporting its back-up advancing
obligations hereunder; provided that any Advance Security Arrangement shall be
in such form and amount, and shall be maintained in such manner, as (i) would
permit the Trustee to act in such capacity without an Adverse Rating Event in
respect of any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by each Rating Agency) and (ii) would not result in an
Adverse REMIC Event (as evidenced by an Opinion of Counsel addressed and
delivered to the Trustee, the Depositor and the Tax Administrator). The Trustee
may terminate any Advance Security Arrangement established by it only if and
when (i) the existence of such Advance Security Arrangement is no longer
necessary for the Trustee to satisfy the eligibility requirements of Section
8.06 or (ii) when such Trustee resigns or is removed as Trustee hereunder.
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SECTION 8.15. Filings with the Securities and Exchange Commission.
(a) With respect to the Trust's fiscal year 1999 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depository) by at least 300 Holders and/or Depository
Participants having accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and
properly file with the Commission monthly, with respect to the Trust, a
Current Report on Form 8-K with copies of the Trustee Reports and the
Unrestricted Servicer Reports attached as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly notify
the Depositor of the occurrence or existence of any of the matters
identified in Section 11.09(a) and/or Section 8.15(b) (in each case to the
extent that a Responsible Officer of the Trustee has actual knowledge
thereof), (B) cooperate with the Depositor in obtaining all necessary
information in order to enable the Depositor to prepare a Current Report
on Form 8-K reporting any such matter in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, and (C) execute and promptly file with
the Commission any such Current Report on Form 8-K prepared by or on
behalf of the Depositor and delivered to the Trustee; and
(iii) within 90 days following the end of such fiscal year, prepare,
execute and properly file with the Commission, with respect to the Trust,
an Annual Report on Form 10-K which complies in all material respects with
the requirements of the Exchange Act, the rules and regulations
promulgated thereunder and applicable "no-action letters" issued by the
Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for electronic filing via the EDGAR system and shall not have any
responsibility to convert any such items (other than those generated by it) to
such format and (y) the Depositor shall be responsible for preparing, executing
and filing (via the EDGAR system within 15 days following the Closing Date) a
Current Report on Form 8-K reporting the establishment of the Trust and whereby
this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required for electronic
filing via the EDGAR system any and all items (including, in the case of the
Master Servicer and the Special Servicer, Unrestricted Servicer Reports)
contemplated to be filed with the Commission pursuant to this Section 8.15(a).
(b) At all times during the Trust's fiscal year 1999 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Trustee shall monitor for and promptly notify the
Depositor of the occurrence or existence of any of the following matters of
which a Responsible Officer of the Trustee has actual knowledge:
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(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Certificateholder Reports filed with the Commission or
has not otherwise been reported to the Depositor pursuant to any other
Section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan
or an REO Property, which acquisition or disposition has not otherwise
been reflected in the Certificateholder Reports filed with the Commission
or has not otherwise been reported to the Depositor pursuant to any other
Section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of or pertaining to the Trust or any party to this Agreement, or any
actions by or on behalf of the Trust or any party to this Agreement
indicating its bankruptcy, insolvency or inability to pay its obligations;
and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports
filed with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (y) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.15(b) unless
such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 1999), the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the parties hereto (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of: (i) the purchase by the Master Servicer,
the Special Servicer or any single Controlling Class Certificateholder or group
of Controlling Class Certificateholders of all Mortgage Loans and each REO
Property remaining in the Trust Fund at a price (the "Termination Price") equal
to (A) the aggregate Purchase Price of all the Mortgage Loans remaining in the
Trust Fund (exclusive of any REO Mortgage Loan(s)), plus (B) the appraised value
of each REO Property, if any, included in the Trust Fund, such appraisal to be
conducted by a Qualified Appraiser selected by the Special Servicer and approved
by the Trustee and the Master Servicer, minus (C) if the purchaser is the Master
Servicer or the Special Servicer, the aggregate amount of unreimbursed Advances
made by such Person, together with any unpaid Advance Interest in respect of
such unreimbursed Advances and any unpaid servicing compensation payable to such
Person (which items shall be deemed to have been paid or reimbursed to the
Master Servicer or the Special Servicer, as the case may be, in connection with
such purchase); provided however, that any such purchase shall be subject to the
rights of any affected Designated Sub-Servicer to continue to sub-service the
Mortgage Loans covered by the applicable Designated Sub-Servicer Agreement, and
(ii) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
provided, however, that in no event shall the Trust continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St.
James, living on the date hereof.
The Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders, in
that order of preference, may at its option elect to purchase all the Mortgage
Loans and each REO Property remaining in the Trust Fund as contemplated by
clause (i) of the preceding paragraph by giving written notice to the other
parties hereto (and, in the case of an election by the Master Servicer or
Special Servicer, to the Holders of the Controlling Class) no later than 60 days
prior to the anticipated date of purchase; provided, however, that the aggregate
Stated Principal Balance of the Mortgage Pool at the time of such election is
less than 1.0% of the Initial Pool Balance; and provided, further, that within
30 days after written notice of such election is so given, no Person with a
higher right of priority to make such an election does so. No Prepayment
Premiums or Yield Maintenance Charges will be payable in connection with such a
purchase; and provided, further, that if more than one Controlling Class
Certificateholder or group of Controlling Class Certificateholders desire to
purchase all of the Mortgage Loans and any REO Properties, preference shall be
given to the Controlling Class Certificateholder or group of Controlling Class
Certificateholders with the largest Percentage Interest in the Controlling
Class. If the Trust is to be terminated in connection with the purchase of all
the Mortgage Loans and each REO Property remaining in the Trust Fund by the
Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s), such Person(s) shall deliver to the Master Servicer for
deposit (or, if the Master Servicer is the purchaser, it shall deposit) in the
Collection Account (after the Determination Date, and prior to the Master
Servicer Remittance Date, relating to the anticipated Final Distribution Date)
an amount in
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immediately available funds equal to the Termination Price and shall reimburse
all of the parties hereto (other than itself, if applicable) for all reasonable
out-of-pocket costs and expenses incurred by such parties in connection with
such purchase. On the Master Servicer Remittance Date for the Final Distribution
Date, the Master Servicer shall transfer to the Distribution Account all amounts
required to be transferred thereto on such Master Servicer Remittance Date from
the Collection Account pursuant to the first paragraph of Section 3.04(b),
together with any other amounts on deposit in the Collection Account that would
otherwise be held for future distribution. Upon confirmation that the deposit of
the Termination Price has been made to the Collection Account and the
reimbursement contemplated by the second preceding sentence has been made to the
parties hereto, the Trustee shall release or cause to be released to the
purchasing party (or its designee) the Mortgage Files for the remaining Mortgage
Loans and shall execute all assignments, endorsements and other instruments
furnished to it by the purchasing party as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties to the purchasing party (or
its designee).
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (x) if such notice is given in connection
with the purchase of all the Mortgage Loans and each REO Property remaining in
the Trust Fund by the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder(s), not earlier than the 15th day and not later than the
25th day of the month next preceding the month of the final distribution on the
Certificates and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein designated. The Trustee shall give such
notice to the other parties hereto at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts on
deposit in the Distribution Account that is allocable to payments on the
relevant Class in accordance with Sections 4.01(a), 4.01(b) and/or 4.01(c).
Any funds not distributed to any Holder or Holders of Certificates
of any Class on the Final Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable escheat laws, the Trustee shall
distribute to the Class R-III Certificateholders all unclaimed funds and other
assets which remain subject hereto.
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SECTION 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or a Controlling
Class Certificateholder purchases all the Mortgage Loans and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust and each
REMIC Pool shall be terminated in accordance with the following additional
requirements, unless the purchasing party obtains at its own expense and
delivers to the Trustee and the Tax Administrator an Opinion of Counsel,
addressed to the Trustee and the Tax Administrator, to the effect that the
failure of the Trust to comply with the requirements of this Section 9.02 will
not result in an Adverse REMIC Event with respect to any REMIC Pool:
(i) the Tax Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each REMIC Pool, pursuant to Treasury regulation Section 1.860F-1 and
shall satisfy all requirements of a qualified liquidation under Section
860F of the Code and any regulations thereunder (as evidenced by an
Opinion of Counsel to such effect delivered on behalf and at the expense
of the purchasing party);
(ii) during such 90-day liquidation period and at or prior to the
time of making the final payment on the Certificates, the Trustee shall
sell all the Mortgage Loans and each REO Property to the Master Servicer,
the Special Servicer or the applicable Controlling Class
Certificateholder(s), as the case may be, for cash in accordance with
Section 9.01; and
(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of
Residual Interest Certificates all remaining cash on hand (other than cash
retained to meet claims), and each REMIC Pool shall terminate at that
time.
(b) By their acceptance of Certificates, the Holders hereby
authorize the Tax Administrator to prepare and adopt, on behalf of the Trust, a
plan of complete liquidation of each REMIC Pool in accordance with the terms and
conditions of this Agreement, which authorization shall be binding upon all
successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a
REMIC under the Code and, if necessary, under applicable state law. Each such
election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state Tax Returns for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued.
(b) The applicable Plurality Residual Interest Certificateholder is
hereby designated as the Tax Matters Person of each REMIC Pool and, in such
capacity, shall be responsible to act on behalf of such REMIC Pool in relation
to any tax matter or controversy, to represent such REMIC Pool in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority, to request an administrative adjustment as to any
taxable year of such REMIC Pool, to enter into settlement agreements with any
governmental taxing agency with respect to such REMIC Pool, to extend any
statute of limitations relating to any tax item of such REMIC Pool and otherwise
to act on behalf of such REMIC Pool in relation to any tax matter or controversy
involving such REMIC Pool; provided that the Tax Administrator is hereby
irrevocably appointed and agrees to act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such. The legal
expenses and costs of any action described in this Section 10.01(b) and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust payable out of amounts on deposit in the Distribution Account as provided
by Section 3.05(b) unless such legal expenses and costs are incurred by reason
of a Tax Matters Person's or the Tax Administrator's misfeasance, bad faith or
negligence in the performance of, or such Person's reckless disregard of, its
obligations or are expressly provided by this Agreement to be borne by any party
hereto.
(c) The Tax Administrator shall prepare or cause to be prepared and
file, and the Trustee shall sign, all of the Tax Returns in respect of each
REMIC Pool (other than Tax Returns required to be filed by the Master Servicer
and/or the Special Servicer pursuant to Section 3.09(g)) and all of the
applicable income tax and other information returns for each Grantor Trust Pool.
The expenses of preparing and filing such returns shall be borne by the Tax
Administrator without any right of reimbursement therefor.
(d) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide: (i) to any Transferor of
a Residual Interest Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required); and (iii) to the IRS, the name, title, address and telephone number
of the Person who will serve as the representative of each REMIC Pool.
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(e) The Tax Administrator shall take such action and shall cause
each REMIC Pool to take such action as shall be necessary to create or maintain
the status thereof as a REMIC under the REMIC Provisions (and the other parties
hereto shall assist it, to the extent reasonably requested by the Tax
Administrator) to the extent that the Tax Administrator has actual knowledge
that any particular action is required; provided that the Tax Administrator
shall be deemed to have knowledge of relevant tax laws. The Tax Administrator
shall not knowingly take or fail to take any action, or cause any REMIC Pool to
take or fail to take any action, that under the REMIC Provisions, if taken or
not taken, as the case may be, could result in an Adverse REMIC Event in respect
of any REMIC Pool, unless the Tax Administrator has received an Opinion of
Counsel to the effect that the contemplated action or non-action, as the case
may be, will not result in an Adverse REMIC Event. None of the other parties
hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the Tax Administrator has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any action
with respect to any REMIC Pool or the assets thereof, or causing any REMIC Pool
to take any action, which is not contemplated by the terms of this Agreement,
each of the other parties hereto will consult with the Tax Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur, and no such other party shall take any such action or cause any REMIC
Pool to take any such action as to which the Tax Administrator has advised it in
writing that an Adverse REMIC Event could occur. The Tax Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)), such tax, together with all incidental costs and expenses
(including penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the Tax Administrator, if such tax arises out of or results from a
breach of any of its obligations under this Article X; (ii) the Trustee, if such
tax arises out of or results from a breach of any of its obligations under
Article IV, Article VIII or this Article X; (iii) any Fiscal Agent, if such tax
arises out of or results from a breach of any of its obligations under Article
IV or this Article X; (iv) the Master Servicer, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations under
Article III or this Article X; (v) the Special Servicer, if such tax arises out
of or results from a breach by the Special Servicer of any of its obligations
under Article III or this Article X; or (vi) the Trust, out of the Trust Fund
(exclusive of the Grantor Trust Pools), in all other instances. If any tax is
imposed on either Grantor Trust Pool, such tax, together with all incidental
costs and expenses (including, without limitation, penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the Tax Administrator, if
such tax arises out of or results from a breach by the Tax Administrator of any
of its obligations under this Article X; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Article X; (iii) the Master Servicer, if
such tax arises out of or results from a breach by the Master Servicer of any of
its obligations under Article III or this Article X; (iv) the Trustee, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Article X; or (v) the Trust,
out of the portion of the Trust Fund constituting such Grantor Trust Pool, in
all other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a) shall be charged to and paid by the Trust. Any such
amounts payable by the Trust in respect of taxes shall be paid by the Trustee at
the direction of the Tax Administrator out of amounts on deposit in the
Distribution Account.
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(g) The Tax Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each REMIC Pool and each Grantor Trust Pool on a
calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee shall
not (except as contemplated by Section 2.03) accept any contributions of assets
to any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution) to the effect that the
inclusion of such assets in such REMIC Pool will not result in an Adverse REMIC
Event in respect of such REMIC Pool.
(i) None of the Tax Administrator, the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent shall consent to or, to the extent it
is within the control of such Person, permit: (i) the sale or disposition of any
Mortgage Loan (except in connection with (A) a breach of any representation or
warranty regarding any Mortgage Loan set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement or, in the case of a Column
Third Party Mortgage Loan, the Union Capital Agreement or as otherwise
contemplated by Section 2.02(e), (B) the foreclosure, default or reasonably
foreseeable material default of a Mortgage Loan, including the sale or other
disposition of a Mortgaged Property acquired by foreclosure, deed in lieu of
foreclosure or otherwise, (C) the bankruptcy of any REMIC Pool, or (D) the
termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Collection Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust (other
than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan, other than a
Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Collection Account or the REO Account); in any event unless it has received an
Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not result in an Adverse REMIC Event in respect of any REMIC
Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the
Tax Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which any REMIC Pool will receive a fee or
other compensation for services or, to the extent it is within the control of
such Person, permit any REMIC Pool to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code. At all times as may
be required by the Code, each of the respective parties hereto (to the extent it
is within its control) shall ensure that substantially all of the assets of each
REMIC Pool will consist of "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Within 30 days after the related Startup Day, the Tax
Administrator shall prepare and file with the IRS, with respect to each REMIC
Pool, Form 8811 "Information Return for Real Estate Mortgage Investment Conduits
(REMICs) and Issuers of Collateralized Debt Obligations".
(l) On or before April 15 of each calendar year, commencing April
15, 2000, unless the Tax Administrator and the Trustee are the same Person, the
Tax Administrator shall deliver to the Trustee an Officer's Certificate from a
Responsible Officer of the Tax Administrator confirming the Tax Administrator's
compliance with its obligations under this Agreement during the prior calendar
year.
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(m) The parties intend that the portion of the Trust Fund consisting
of Additional Interest on the ARD Loans and the Class E Sub-Account and shall
constitute, and that the affairs of such portion of the Trust Fund shall be
conducted so as to qualify as, a "grantor trust" under the Code, and the
provisions hereof shall be interpreted consistently with this intention. In
addition, the parties intend that the portion of the Trust Fund consisting of
the Loan REMIC Residual Interests and the REMIC I Residual Interest shall
constitute, and that the affairs of such portion of the Trust Fund shall be
conducted so as to qualify as, a "Grantor Trust" under the Code, and the
provisions hereof shall be interpreted consistently with this intention. The Tax
Administrator shall also perform on behalf of each Grantor Trust Pool all
reporting and other tax compliance duties that are the responsibility of such
Grantor Trust under the Code or any compliance guidance issued by the IRS or any
state or local taxing authorities. The expenses of preparing and filing such
returns shall be borne by the Tax Administrator.
SECTION 10.02. Depositor, Master Servicer, Special Servicer, Trustee
and Fiscal Agent to Cooperate with Tax Administrator.
(a) The Depositor shall provide or cause to be provided to the Tax
Administrator, within 10 days after the Closing Date, all information or data
that the Tax Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including the price,
yield, prepayment assumption and projected cash flow of the Certificates.
(b) Each of the Master Servicer, the Special Servicer, the Trustee
and any Fiscal Agent shall furnish such reports, certifications and information
in its possession, and access to such books and records maintained thereby, as
may relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Tax Administrator in order to enable it to perform its duties
hereunder.
SECTION 10.03. Appointment of Tax Administrator.
The Trustee may, at its own expense, appoint any Person with
appropriate tax-related experience to act as Tax Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Tax Administrator, the Trustee agrees to act in such capacity
in accordance with the terms hereof. The appointment of a Tax Administrator
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of the Tax
Administrator. The Trustee shall cause any such Tax Administrator appointed by
it to execute and deliver to the Trustee an instrument in which such Tax
Administrator shall agree to act in such capacity in accordance with the
obligations and responsibilities provided for herein. The Tax Administrator
shall be subject to the same standards of care, limitations on liability and
rights to indemnity as the Trustee, and the provisions of Sections 8.01, 8.02,
8.03, 8.04, 8.05(b), 8.05(c) and 8.05(e) shall apply to the Tax Administrator to
the same extent that they apply to the Trustee. Any Tax Administrator appointed
in accordance with this Section 10.03 may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee, the Master
Servicer, the Special Servicer and the Depositor. The Trustee may at any time
terminate the agency of any Tax Administrator appointed in accordance with this
Section 10.03 by giving written notice of termination to such Tax Administrator,
the Master Servicer, and the Depositor.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein or to correct any error, (iii) to add any other provisions with
respect to matters or questions arising hereunder which shall not be
inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by (A) the REMIC Provisions (if the REMIC
Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated) or (B) the Securities Act or the rules thereunder (if the
Securities Act or such rules are amended or clarified such that any such
requirement may be relaxed or eliminated), (v) as evidenced by an Opinion of
Counsel delivered to the Trustee and the Tax Administrator, either (X) to comply
with any requirements imposed by the Code or any successor or amendatory statute
or any temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income tax
laws or any such proposed action which, if made effective, would apply
retroactively to any REMIC Pool or either Grantor Trust Pool at least from the
effective date of such amendment, or (Y) to avoid the occurrence of a prohibited
transaction or to reduce the incidence of any tax that would arise from any
actions taken with respect to the operation of any REMIC Pool or either Grantor
Trust Pool, (vi) as provided in Section 5.02(d)(iv), to modify, add to or
eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii); or (vii)
for any other purpose; provided that such amendment (other than any amendment
for any of the specific purposes described in clauses (v) and (vi) above) shall
not adversely affect in any material respect the interests of any
Certificateholder or Designated Sub-Servicer, as evidenced by an Opinion of
Counsel obtained by or delivered to the Trustee to such effect; and provided,
further, that any such amendment covered solely by clause (vii) above shall not
(as confirmed in writing to the Trustee by each Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates.
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to not less than 66 2/3% of the Voting Rights allocated to
all of the affected Classes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received or advanced on Mortgage Loans and/or REO
Properties which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (i) above without the consent of the Holders
of all Certificates of such Class, (iii) modify the provisions of this Section
11.01 without the consent of the Holders of all Certificates then outstanding or
(iv) adversely affect in any material respect the interests of any Designated
Sub-Servicer as provided herein without the consent of such Designated
Sub-Servicer. Notwithstanding any other provision of this Agreement, for
purposes of the giving or withholding of consents pursuant to this Section
11.01, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor shall be entitled to the same Voting Rights with respect to the
matters described above as they would if registered in the name of any other
Person.
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(c) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the Tax Administrator shall consent to any amendment to
this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment by
all parties thereto, the Trustee shall send a copy thereof to each
Certificateholder and to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 11.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes protects or is in furtherance of the rights and
interests of Certificateholders, the cost of any Opinion of Counsel required in
connection therewith pursuant to Section 11.01(a) or (c) shall be payable out of
the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust (payable out of the
Collection Account), but only upon written direction of the Depositor
accompanied by an Opinion of Counsel (the cost of which may be paid out of the
Collection Account) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
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<PAGE>
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of any other Holders of Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder (which priority
or preference is not otherwise provided for herein), or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the substantive laws of the State of New York applicable to agreements made
and to be performed entirely in said State, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws. The parties hereto intend that the provisions of Section 5-1401 of the New
York General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, DLJ Commercial
Mortgage Corp., 277 Park Avenue, 9th Floor, New York, New York 10172, Attention:
N. Dante LaRocca, telecopy number: (212) 892-2003; (ii) in the case of the
Master Servicer, GE Capital Loan Services, Inc., 363 North Sam Houston Parkway
East, Suite 1200, Houston, Texas 77060, Attention: Legal Department, telecopy
number (281) 405-7145; (iii) in the case of the Special Servicer, GMAC
Commercial Mortgage Corporation, 650 Dresher Road, P.O. Box 1015, Horsham,
Pennsylvania 19044, Attention: Managing Director Servicing, with copies to GMAC
Commercial Mortgage Corporation, 650 Dresher Road, P.O. Box 1015, Horsham,
Pennsylvania 19044, Attention: General Counsel and to GMAC Commercial
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<PAGE>
Mortgage Corporation, 550 California Street, 14th Floor, San Francisco,
California 94104, Attention: Henry Bieber, telecopy number (415) 835-9268; (iv)
in the case of the Trustee, Norwest Bank Minnesota, National Association, 11000
Broken Land Parkway, Columbia, Maryland 21044-3562, Attention: Corporate Trust
Administration (CMBS)-DLJ Commercial Mortgage Corp., Series 1999-CG3, telecopy
number: (410) 884-2372; (v) in the case of the Rating Agencies, (A) Moody's
Investors Service, Inc., 99 Church Street, New York, New York 10007, Attention:
Commercial MBS Monitoring Department, telecopy number (212) 553-0300; and (B)
in the case of Fitch IBCA, Inc., One State Street Plaza, New York, New York
10004, Attention: Commercial Mortgage Surveillance Department, telecopy number:
(212) 635-0295; (vi) in the case of GECA, GE Capital Access, Inc., 125 Park
Avenue, New York, New York 10017, Attention: Director - Securitization, telecopy
number (212) 716-8911; and (vii) in the case of Column, Column Financial Inc.,
3414 Peachtree Road, N.E., Suite 1140, Atlanta, Georgia 30326-1113, Attention:
President, telecopy number (404) 239-0419; or as to each such Person such other
address and/or telecopy number as may hereafter be furnished by such Person to
the parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenant(s), agreement(s), provision(s) or term(s) shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto, their respective successors and assigns and,
as third party beneficiaries (with all right to enforce the obligations
hereunder intended for their benefit as if a party hereto), the Underwriter and
the non-parties referred to in Sections 6.03, 8.05 and 3.22(g), and all such
provisions shall inure to the benefit of the Certificateholders. No other
person, including any Borrower, shall be entitled to any benefit or equitable
right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies and the
Depositor.
(a) The Trustee shall promptly provide notice to each Rating Agency
and the Depositor with respect to each of the following of which a Responsible
Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
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<PAGE>
(iii) the resignation, termination, merger or consolidation of the
Master Servicer, the Special Servicer or the Tax Administrator and the
appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Gain on Sale Reserve Fund;
(vi) any repurchase or substitution of a Mortgage Loan by GECA,
Column or Union Capital as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency and the Depositor with respect to each of the following of which it has
actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Master Servicer and the Special Servicer, as the
case may be, shall furnish each Rating Agency such information with respect to
the Mortgage Loans as such Rating Agency shall reasonably request and which the
Master Servicer or the Special Servicer, as the case may be, can reasonably
provide to the extent consistent with applicable law and the related Mortgage
Loan documents. In any event, the Master Servicer and the Special Servicer shall
notify each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) any change in the lien priority of the Mortgage securing any
Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a tenant
representing more than 20% of the total net rentable square feet of space)
at any Mortgaged Property used for retail purposes or any change in the
term of the lease for an anchor tenant at any such Mortgaged Property; and
(iii) any assumption of, or release or substitution of collateral
for, a Mortgage Loan that represents greater than 2% of the then aggregate
Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of or material damage to a Mortgaged Property.
(d) Each of the Master Servicer and the Special Servicer, as the
case may be, shall promptly furnish to each Rating Agency copies of the
following items (in each case, at or about the same time that it delivers or
causes the delivery of such item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e) and Section
3.12.
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<PAGE>
(e) The Trustee shall promptly deliver to each Rating Agency (in
hard copy format or through use of the Trustee's Internet Website for Moody's) a
copy of each Trustee Report, Unrestricted Servicer Report and Restricted
Servicer Report forwarded to the Holders of the Certificates (in each case, at
or about the same time that it delivers such Certificateholder Report to such
Holders). Any Restricted Servicer Reports delivered electronically as aforesaid
shall be accessible on the Trustee's Internet Website only with the use of a
password, which shall be provided by the Trustee to each Rating Agency.
(f) The parties intend that each Rating Agency provide to the
Trustee, upon request, a listing of the then-current rating (if any) assigned by
such Rating Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicer or the Special Servicer, as the
case may be, shall deliver to the Controlling Class Representative a copy of
each notice or other item of information such Person is required to deliver to
the Rating Agencies pursuant to Section 11.09, in each case simultaneously with
the delivery thereof to the Rating Agencies.
SECTION 11.11. Information Requested by GECA.
The Trustee shall provide to GECA promptly following any written
request therefor submitted by GECA any Certificateholder Reports theretofore or
simultaneously delivered or made available by the Trustee to Certificateholders.
Such reports shall be provided or made available in electronic format or, if
requested by GECA, by first class mail.
SECTION 11.12. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
DLJ COMMERCIAL MORTGAGE CORP.
Depositor
By: /s/ N. Dante La Rocca
-----------------------------------------
Name: N. Dante La Rocca
Title: Senior Vice President
GE CAPITAL LOAN SERVICES, INC.
Master Servicer
By: /s/ Joseph F. Beggins
-----------------------------------------
Name: Joseph F. Beggins
Title: President and Chief Executive
Officer
GMAC COMMERCIAL MORTGAGE CORPORATION
Special Servicer
By: /s/ Henry J. Bieber
-----------------------------------------
Name: Henry J. Bieber
Title: Senior Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
solely in its capacity as Trustee
By: /s/ Leslie A. Gaskill
-----------------------------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 7th day of October 1999, before me, a notary public in and
for said State, personally appeared N. Dante LaRocca, personally known to me to
be a Senior Vice President of DLJ COMMERCIAL MORTGAGE CORP., one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Rhona H. Ramsay
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF HARRIS )
On the 8th day of October 1999, before me, a notary public in
and for said State, personally appeared Joseph F. Beggins, personally known to
me to be the President & CEO of GE CAPITAL LOAN SERVICES, INC., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Bernadette Tatum
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 5th day of October 1999, before me, a notary public in
and for said State, personally appeared Henry J. Bieber, personally known to me
to be the Senior Vice President of GMAC COMMERCIAL MORTGAGE CORPORATION, one of
the entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Marc A. De Bourbon
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 7th day of October 1999, before me, a notary public in
and for said State, personally appeared Leslie Gaskill, personally known to me
to be a Vice President of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, one of
the entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Jack A. Aini
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS S CERTIFICATES
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-CG3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Notional Amount of the Class S
Variable Certificates as of the Closing Date:
$_________________________________
Cut-off Date: October 1, 1999 Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
Closing Date: October 12, 1999 $_________________________________
First Distribution Date: Aggregate Stated Principal Balance of the
November 10, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $_______________
Master Servicer: Trustee:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage
Corporation
Certificate No. S-___ CUSIP No.: ________________
A-1-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS OCTOBER 12, 1999. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT OF PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN
FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $______ OF OID PER $100,000 OF INITIAL CERTIFICATE
NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $100,000 OF
INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER A CONSTANT YIELD METHOD WITH
DAILY COMPOUNDING. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT
PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.
A-1-2
<PAGE>
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional amount of all the Class S
Certificates (their "Class Notional Amount") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class S Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off
Date specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), GE Capital Loan Services, Inc. as master servicer (the "Master
Servicer," which term includes any successor entity under the Agreement), GMAC
Commercial Mortgage Corporation as special servicer (the "Special Servicer,"
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee (the "Trustee", which term includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class S Certificates on the applicable Distribution Date pursuant to the
Agreement. The "Determination Date" in each month, commencing in November 1999,
will be the fourth day of such month or, if such fourth day is not a Business
Day, then the immediately preceding Business Day. All distributions made under
the Agreement on this Certificate will be made by the Trustee by wire transfer
of immediately available funds to the account of the Person entitled thereto at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
later than the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
A-1-3
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
A-1-4
<PAGE>
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:______________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:______________________________
Authorized Representative
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________.
This information is provided by ________________________, the
Assignee named above, or ____________________, as its agent.
A-1-7
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1A AND A-1B CERTIFICATES
CLASS [A-1A] [A-1B] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1999-CG3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class [A-1A]
___% per annum [A-1B] Certificates as of the Closing Date:
$_________________________________
Cut-off Date: October 1, 1999 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Closing Date: October 12, 1999 $_________________________________
First Distribution Date: Aggregate Stated Principal Balance of the
November 10, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $________________
Master Servicer: Trustee:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage
Corporation
Certificate No. [A-1A] [A-1B]-___ CUSIP No.:________________
A-2-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
A-2-2
<PAGE>
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [A-1A]
[A-1B] Certificates (their "Class Principal Balance") as of the Closing Date) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [A-1A] [A-1B] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), GE Capital Loan Services, Inc. as master servicer
(the "Master Servicer," which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation as the special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of its acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-1A] [A-1B] Certificates on the applicable Distribution Date pursuant to
the Agreement. The "Determination Date" in each month, commencing in November
1999, will be the fourth day of such month or, if such fourth day is not a
Business Day, then the immediately preceding Business Day. All distributions
made under the Agreement on this Certificate will be made by the Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no later than the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any portion of an Unreimbursed Principal Balance
Reduction in respect of this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
A-2-3
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
A-2-4
<PAGE>
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1A] [A-1B] Certificates referred to in
the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
Authorized Representative
A-2-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________.
This information is provided by _________________, the Assignee
named above, or ____________________, as its agent.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-1C, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5,
CLASS B-1 AND B-2 CERTIFICATES
CLASS [A-1C] [A-2] [A-3] [A-4] [A-5] [B-1] [B-2] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class
[___% per annum FOR CLASS A-1C [A-1C][A-2] [A-3] [A-4] [A-5] [B-1]
CERTIFICATES] [Variable FOR CLASS A-2, [B-2] Certificates as of the Closing
CLASS A-3, CLASS A-4, CLASS A-5, Date: $_______________________________
CLASS B-1 AND CLASS B-2 CERTIFICATES]
Cut-off Date: October 1, 1999 Initial Certificate Principal Balance
of this Certificate as of the Closing
Closing Date: October 12, 1999 Date: $_______________________________
First Distribution Date: Aggregate Stated Principal Balance of
November 10, 1999 the Mortgage Loans as of the Closing
Date ("Initial Pool Balance"): $_______
Master Servicer: Trustee:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. [A-1C][A-2] [A-3] CUSIP No.: _________________
[A-4] [A-5] [B-1] [B-2]-___
A-3-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS OCTOBER 12, 1999. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT
A-3-2
<PAGE>
TO ANY VOLUNTARY OR INVOLUNTARY PREPAYMENT OF PRINCIPAL (EXCEPT THAT THE ARD
LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT
DATES), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID PER
$1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____%
PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
NO MORE THAN $_____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
COMPUTED UNDER A CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION
IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY
WILL PREPAY AT ANY PARTICULAR RATE.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [A-1C] [A-2]
[A-3] [A-4] [A-5] [B-1] [B-2] Certificates (their "Class Principal Balance") as
of the Closing Date) in that certain beneficial ownership interest in the Trust
Fund evidenced by all the Class [A-1C] [A-2] [A-3] [A-4] [A-5] [B-1] [B-2]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date
specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), GE Capital Loan Services, Inc. as master servicer (the "Master
Servicer," which term includes any successor entity under the Agreement), GMAC
Commercial Mortgage Corporation as special servicer (the "Special Servicer,"
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee (the "Trustee", which term includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-1C] [A-2] [A-3] [A-4] [A-5] [B-1] [B-2] Certificates on the applicable
Distribution Date pursuant to the Agreement. The "Determination Date" in each
month, commencing in November 1999, will be the fourth day of such month or, if
such fourth day is not a Business Day, then the immediately
A-3-3
<PAGE>
preceding Business Day. All distributions made under the Agreement on this
Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no later than the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unreimbursed Principal Balance Reduction in respect of this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section
A-3-4
<PAGE>
4975 of the Code under Sections I and III of Prohibited Transaction Class
Exemption 95-60; or (iii) a certification of facts and an Opinion of Counsel
which otherwise establish to the reasonable satisfaction of the Trustee that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or result in the imposition of an excise tax under Section 4975
of the Code. For so long as this Certificate constitutes a Book-Entry
Certificate, each such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or such interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transactions Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the preceding paragraph.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
A-3-5
<PAGE>
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:__________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1C] [A-2] [A-3] [A-4] [A-5] [B-1] [B-2]
Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:__________________________________
Authorized Representative
A-3-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________.
This information is provided by _________________, the Assignee
named above, or ____________________, as its agent.
A-3-8
<PAGE>
EXHIBIT A-4
FORM OF CLASS B-3, CLASS B-4, CLASS B-5, CLASS B-6,
CLASS B-7, CLASS B-8, CLASS C AND CLASS D CERTIFICATES
CLASS [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C] [D] [E] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class [B-3]
Variable [B-4] [B-5] [B-6] [B-7] [B-8] [C] [D]
Certificates as of the Closing Date:
$_________________________________
Cut-off Date: October 1, 1999 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Closing Date: October 12, 1999 $_________________________________
First Distribution Date: Aggregate Stated Principal Balance of the
November 10, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
$_________________________________
Master Servicer: Trustee:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage
Corporation
Certificate No.[B-3] [B-4] [B-5] CUSIP No.: ___________
[B-6] [B-7] [B-8]
[C] [D] - __________
A-4-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B)
TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-4-2
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS OCTOBER 12, 1999. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT OF PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN
FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $______ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $1,000
OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER A CONSTANT YIELD METHOD
WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [B-3] [B-4]
[B-5] [B-6] [B-7] [B-8] [C] [D] Certificates (their "Class Principal Balance")
as of the Closing Date) in that certain beneficial ownership interest in the
Trust Fund evidenced by all the Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C]
[D] Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of the Cutoff Date
specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), GE Capital Loan Services, Inc. as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), GMAC
Commercial Mortgage Corporation as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee (the "Trustee", which term includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
A-4-3
<PAGE>
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C] [D] Certificates on the applicable
Distribution Date pursuant to the Agreement. The "Determination Date" in each
month, commencing in November 1999, will be the fourth day of such month or, if
such fourth day is not a Business Day, then the immediately preceding Business
Day. All distributions made under the Agreement on this Certificate will be made
by the Trustee by wire transfer of immediately available funds to the account of
the Person entitled thereto at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Trustee
with wiring instructions no later than the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any portion of an Unreimbursed Principal
Balance Reduction in respect of this Certificate) will be made in like manner,
but only upon presentation and surrender of this Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
A-4-4
<PAGE>
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, the Underwriter, the Trustee, any
Fiscal Agent, the Master Servicer, the Special Servicer and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification, substantially in the form attached as Annex 1 or Annex 2 to
Exhibit F-2A to the Agreement, to the effect that such prospective Transferee is
a Qualified Institutional Buyer or a certification from the prospective
Transferee to the effect that such prospective Transferee is an Institutional
Accredited Investor.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly
A-4-5
<PAGE>
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the two preceding paragraphs.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the
A-4-6
<PAGE>
Special Servicer or the any single Controlling Class Certificateholder or group
of Controlling Class Certificateholders to purchase from the Trust Fund all the
Mortgage Loans and each REO Property remaining therein. The exercise of such
right may effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-4-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:_________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C] [D]
Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:_________________________________
Authorized Representative
A-4-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________.
This information is provided by _________________, the Assignee
named above, or ____________________, as its agent.
A-4-9
<PAGE>
EXHIBIT A-5
FORM OF CLASS [E] CERTIFICATES
CLASS [E] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: October 1, 1999 Percentage Interest evidenced by
this Class E Certificate: ______%
Closing Date: October 12, 1999
First Distribution Date: Aggregate Stated Principal Balance
November 10, 1999 of the Mortgage Loans as of the
Closing Date ("Initial Pool
Balance"):$________________________
Master Servicer: Trustee:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. E-___
A-5-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON
WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-5-2
<PAGE>
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by
evidenced by all the Class E Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), GE Capital Loan Services, Inc. as master servicer
(the "Master Servicer", which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of its acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class E Certificates on the applicable Distribution Date pursuant to the
Agreement. The "Determination Date" in each month, commencing in November 1999,
will be the fourth day of such month or, if such fourth day is not a Business
Day, then the immediately preceding Business Day. All distributions made under
the Agreement on this Certificate will be made by the Trustee by wire transfer
of immediately available funds to the account of the Person entitled thereto at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
later than the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
A-5-3
<PAGE>
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, the Underwriter, the Trustee, any
Fiscal Agent, the Master Servicer, the Special Servicer and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification, substantially in the form attached as Annex 1 or Annex 2 to
Exhibit F-2A to the Agreement, to the effect that such prospective Transferee is
a Qualified Institutional Buyer or a certification from the prospective
Transferee to the effect that such prospective Transferee is an Institutional
Accredited Investor.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such
A-5-4
<PAGE>
interest herein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the two preceding paragraphs.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
A-5-5
<PAGE>
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-5-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:___________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:___________________________________
Authorized Representative
A-5-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________.
This information is provided by _________________, the Assignee
named above, or ____________________, as its agent.
A-5-8
<PAGE>
EXHIBIT A-6
FORM OF CLASS R-I, CLASS R-II, CLASS R-III CERTIFICATES
CLASS [R-I] [R-II] [R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: October 1, 1999 Percentage Interest evidenced by
this Class [R-I] [R-II] [R-III]
Certificate: ___%
Closing Date: October 12, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Closing Date ("Initial
Pool Balance"): $________________
First Distribution Date: Trustee:
November 10, 1999 Norwest Bank Minnesota, National
Association
Master Servicer:
GE Capital Loan Services, Inc.
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No.[R-I] [R-II] [R-III]-__
A-6-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON
WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE
A-6-2
<PAGE>
CODE. CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE
ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON
BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.]
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [R-I] [R-II] [R-III] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), GE Capital Loan Services, Inc. as master servicer
(the "Master Servicer", which term includes any successor entity under the
Agreement) and GMAC Commercial Mortgage Corporation as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of its acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such
A-6-3
<PAGE>
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to all the Holders of the Class [R-I] [R-II] [R-III] Certificates on
the applicable Distribution Date pursuant to the Agreement. The "Determination
Date" in each month, commencing in November 1999, will be the fourth day of such
month or, if such fourth day is not a Business Day, then the immediately
preceding Business Day. All distributions made under the Agreement on this
Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no later than the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached as
Exhibit F-2A to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Trustee to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust or of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's
A-6-4
<PAGE>
prospective Transferee on which such Opinion of Counsel is based. Any
Certificateholder desiring to effect a transfer, sale, pledge or other
disposition of this Certificate or any interest herein shall, and does hereby
agree to, indemnify the Depositor, the Underwriter, the Trustee, any Fiscal
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
against any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
except to a Qualified Institutional Buyer. The Certificate Registrar shall
refuse to register the transfer of this Certificate unless it has received from
the prospective Transferee a certification, substantially in the form attached
as Annex 1 or Annex 2 to Exhibit F-2A to the Agreement, to the effect that such
prospective Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either: (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
Transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the Tax Administrator of any change or impending change in
A-6-5
<PAGE>
its status as a Permitted Transferee. In connection with any proposed Transfer
of any Ownership Interest in this Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of this Certificate
until its receipt of, an affidavit and agreement substantially in the form
attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of either the Certificate Registrar or Trustee has actual knowledge that
the proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in this Certificate to such proposed Transferee shall be
effected. In connection therewith, the Certificate Registrar shall not register
the transfer of an Ownership Interest in this Certificate to any entity
classified as a partnership under the Code unless at the time of transfer, all
of its beneficial owners are United States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the five preceding paragraphs.
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the Tax Administrator the following: (a) written confirmation from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates; and (b) an Opinion of Counsel, in
form and substance satisfactory to the Trustee and the Tax Administrator, to the
effect that such modification of, addition to or elimination of such provisions
will not cause any REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of a Residual Interest Certificate to a
Person that is not a Permitted Transferee, or cause a Person other than the
prospective Transferee
A-6-6
<PAGE>
to be subject to a REMIC-related tax caused by the Transfer of a Residual
Interest Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Non-United States Person". In addition, if
such Transferee is classified as a partnership under the Code, such Transferee
can only be a "Permitted Transferee" if all of its beneficial owners are United
States Persons.
A "Disqualified Organization" is any of (i) the United States or a
possession thereof, any State or political subdivision thereof or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for FHLMC,
a majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code and (v) any other Person so designated by the REMIC
Administrator based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Residual Interest Certificate by such Person may cause the Trust
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Interest Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust or,
to the extent provided in the Treasury regulations, a trust if it was in
existence on August 20, 1996 and it elected to be treated as a United States
Person, all within the meaning of Section 7701(a)(30) of the Code.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
A-6-7
<PAGE>
No service charge will be imposed for any registration of transfer
or exchange of this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being less
than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-6-8
<PAGE>
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-6-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:_______________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] Certificates referred
to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:_______________________________________
Authorized Representative
A-6-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________.
This information is provided by _________________, the Assignee
named above, or ____________________, as its agent.
A-6-11
<PAGE>
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
B-1A-1
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Name Street Adress City County
<S> <C> <C> <C> <C>
4 The Alliance Loan
4a Shadow Creek Apartments 6715 Buenos Aires Drive North Richland Hills Tarrant
4b Copper Cove Apartments 12903 Bran Rock Drive Houston Harris
4c Hilltop Apartments 6424 Industrial Park Boulevard North Richland Hills Tarrant
4d Foxboro Apartments 10411 South Drive Houston Harris
4e The Pinnacle Apartments 146 Valley View Drive Lewisville Denton
7 2 Penn Center Plaza 1500-1540 John F. Kennedy Boulevard Philadelphia Philadelphia
10 Candlewyck Apartments 100 East Candlewyck Drive Kalamazoo Kalamazoo
11 Lakes at Palm Beach 4070 Woods Edge Circle Riviera Beach Palm Beach
12 Pensacola Place 4334 North Hazel Street Chicago Cook
13 West End Court 1255 22nd Street Northwest Washington District of
Columbia
14 The Ameriserve Loan
14a Ameriserve - Burlington, NJ 600 Commerce Drive Burlington Burlington
14b Ameriserve - Grand Rapids, MI 650 Ionia Avenue Southwest Grand Rapids Kent
17 Points East Shopping Center 7289-7361 Mentor Avenue Mentor Lake
18 Hidden Creek Apartments 1701 Marshall Road Vacaville Solano
19 800 Madison Avenue 800 Madison Avenue New York New York
21 Schaumburg Corners Shopping Center 16-60 East Golf Road Schaumburg Cook
23 Holiday Inn - Oklahoma City, OK 2101 South Meridian Avenue Oklahoma City Oklahoma
25 Canyon Parke Apartments 2222 Graycliff Drive Dallas Dallas
26 Riverview Marketplace 4077 North Main Street Fall River Bristol
30 Rolling Meadows Plaza 2827-2913 Kirchoff Road Rolling Meadows Cook
31 The Hill at Woodway 10951 Laureate Drive San Antonio Bexar
32 Shady Grove Professional Center 15001 Shady Grove Road Rockville Montgomery
35 Country Oaks Apartments 3865 Kirby Parkway Memphis Shelby
38 Centerpoint Corporate Center 2001 Centerpoint Parkway Pontiac Oakland
40 Tantara Club Apartments 7784 College Circle North Richland Hills Tarrant
42 Arrowhead Shopping Center 20165 North 67th Avenue Glendale Maricopa
45 American Crossing Shopping Center 3101 and 3035 Menaul Boulevard Albuquerque Bernalillo
Northeast
46 Kaiser Permanente Office Building (2) 4330 East Mira Loma Avenue Anaheim Orange
48 Crossroads Shopping Center 901 North Carpenter Road Modesto Stanislaus
50 The Palm Breezes Club Manufactured 3500 West Lantana Road Lantana Palm Beach
Home Community
51 Majestic Shopping Center 2910, 2986 and 2990 Center Road Hampton Bay
54 Mt. Olive Centre NC Highway 55 and US Highway 117 Mt. Olive Wayne
55 Applegate Square Shopping Center 29649 Northwestern Highway Southfield Oakland
57 Waters of Winrock Apartments 6403 Del Monte Drive Houston Harris
58 Garden Wood Apartments 4787 Garden Grove Cove Memphis Shelby
60 Ashton Woods Apartments 2215-2319 South First Street Champaign Champaign
61 Kmart Shopping Center - Milford 120-128 Medway Street Milford Worcester
66 The Fox Glen I and II Apartments 5902-5920 Cross Country Boulevard, Baltimore Baltimore
2800-2912 Glen Avenue & 3114-3132
Parkington Avenue
67 Lake Howard Heights Retirement 650 North Lake Howard Drive Winter Haven Polk
69 Batavia Palms Business Center 2322-2328 North Batavia Street Orange Orange
71 Creekside Apartments (1B) 2939-3009 12th Avenue Southwest Cedar Rapids Linn
72 Brookside Apartments (1B) 1040-1138 Patrick Court Waterloo Blackhawk
73 Glenbrook Centre Apartments (1B) 4341-4353 1st Avenue Southeast & 11 Cedar Rapids Linn
Glenbrook Drive Southeast
74 Hardwick Apartments (1B) 1804-1806 Second Street Southwest Rochester Olmsted
75 Sequoia Bend Apartments 601 Brown Trail Hurst Tarrant
<CAPTION>
# Loan/Property Name State Zip Originator Original Loan Cut-Off Monthly
Code Balance Date Payment
Balance
<S> <C> <C> <C> <C> <C> <C> <C>
4 The Alliance Loan Column 38,400,000 38,336,336 277,228.19
4a Shadow Creek Apartments TX 76180
4b Copper Cove Apartments TX 77082
4c Hilltop Apartments TX 76180
4d Foxboro Apartments TX 77099
4e The Pinnacle Apartments TX 75067
7 2 Penn Center Plaza PA 19102 Column 33,500,000 33,478,985 253,560.86
10 Candlewyck Apartments MI 49001 Column 19,000,000 18,988,057 143,676.73
11 Lakes at Palm Beach FL 33410 Column 17,000,000 16,971,978 122,966.93
12 Pensacola Place IL 60613 Column 15,350,000 15,339,574 111,991.48
13 West End Court DC 20037 Column 15,300,000 15,289,713 112,159.34
14 The Ameriserve Loan Column 15,100,000 15,090,871 116,212.97
14a Ameriserve - Burlington, NJ NJ 08016
14b Ameriserve - Grand Rapids, MI MI 49503
17 Points East Shopping Center OH 44060 Column 13,500,000 13,478,068 98,118.73
18 Hidden Creek Apartments CA 95687 Column 12,350,000 12,328,507 87,710.07
19 800 Madison Avenue NY 10021 Column 11,400,000 11,381,263 82,539.25
21 Schaumburg Corners Shopping Center IL 60173 Column 9,500,000 9,494,101 72,240.39
23 Holiday Inn - Oklahoma City, OK OK 73108 Column 8,700,000 8,691,817 71,113.20
25 Canyon Parke Apartments TX 75228 Column 8,400,000 8,394,611 62,929.32
26 Riverview Marketplace MA 02720 Column 8,250,000 8,243,791 57,290.27
30 Rolling Meadows Plaza IL 60008 Column 7,800,000 7,794,903 57,942.09
31 The Hill at Woodway TX 78249 Union Capital 7,343,000 7,322,860 50,092.20
32 Shady Grove Professional Center MD 20850 Column 7,200,000 7,195,390 53,990.00
35 Country Oaks Apartments TN 38115 Column 7,100,000 7,081,893 49,838.84
38 Centerpoint Corporate Center MI 48341 Column 6,600,000 6,593,019 49,444.47
40 Tantara Club Apartments TX 76180 Column 6,400,000 6,395,843 47,676.73
42 Arrowhead Shopping Center AZ 85308 Column 6,300,000 6,290,411 46,755.27
45 American Crossing Shopping Center NM 87107 Column 5,800,000 5,796,241 43,247.70
46 Kaiser Permanente Office Building (2) CA 92807 Column 5,400,000 5,389,861 44,699.39
48 Crossroads Shopping Center CA 95351 Column 5,200,000 5,196,882 40,167.91
50 The Palm Breezes Club Manufactured FL 33462 Union Capital 5,100,000 5,091,471 36,713.40
Home Community
51 Majestic Shopping Center MI 48708 Column 5,000,000 4,994,798 37,668.83
54 Mt. Olive Centre NC 28365 Column 4,800,000 4,794,811 35,690.28
55 Applegate Square Shopping Center MI 48034 Column 4,700,000 4,695,468 36,305.61
57 Waters of Winrock Apartments TX 77057 Union Capital 4,472,127 4,468,603 30,356.27
58 Garden Wood Apartments TN 38134 Column 4,350,000 4,342,451 30,923.80
60 Ashton Woods Apartments IL 61820 Column 4,300,000 4,297,091 31,432.05
61 Kmart Shopping Center - Milford MA 01757 Column 4,300,000 4,293,445 31,897.28
66 The Fox Glen I and II Apartments MD 21215 Column 3,900,000 3,897,588 29,711.67
67 Lake Howard Heights Retirement FL 33881 Column 3,830,000 3,827,680 29,449.39
69 Batavia Palms Business Center CA 92865 Column 3,770,000 3,767,470 27,662.92
71 Creekside Apartments (1B) IA 52404 Column 1,300,000 1,299,173 9,775.61
72 Brookside Apartments (1B) IA 50701 Column 1,005,000 1,004,360 7,557.30
73 Glenbrook Centre Apartments (1B) IA 52402 Column 885,000 884,437 6,654.93
74 Hardwick Apartments (1B) MN 55902 Column 560,000 559,644 4,211.03
75 Sequoia Bend Apartments TX 76053 Column 3,720,000 3,716,189 29,106.96
<CAPTION>
# Loan/Property Name Mortgage Original Remaining Maturity Original Remaining
Rate Term Term Date Amortization mortization
<S> <C> <C> <C> <C> <C> <C> <C>
4 The Alliance Loan 7.830% 120 117 7/1/2009 360 357
4a Shadow Creek Apartments
4b Copper Cove Apartments
4c Hilltop Apartments
4d Foxboro Apartments
4e The Pinnacle Apartments
7 2 Penn Center Plaza 8.330% 120 119 9/1/2009 360 359
10 Candlewyck Apartments 8.320% 120 119 9/1/2009 360 359
11 Lakes at Palm Beach 7.850% 120 117 7/1/2009 360 357
12 Pensacola Place 7.940% 120 119 9/1/2009 360 359
13 West End Court 7.990% 120 119 9/1/2009 360 359
14 The Ameriserve Loan 8.510% 120 119 9/1/2009 360 359
14a Ameriserve - Burlington, NJ
14b Ameriserve - Grand Rapids, MI
17 Points East Shopping Center 7.900% 120 117 7/1/2009 360 357
18 Hidden Creek Apartments 7.660% 120 117 7/1/2009 360 357
19 800 Madison Avenue 7.860% 120 117 7/1/2009 360 357
21 Schaumburg Corners Shopping Center 8.380% 120 119 9/1/2009 360 359
23 Holiday Inn - Oklahoma City, OK 8.680% 120 119 9/1/2009 300 299
25 Canyon Parke Apartments 8.220% 84 83 9/1/2006 360 359
26 Riverview Marketplace 7.430% 120 119 9/1/2009 360 359
30 Rolling Meadows Plaza 8.130% 120 119 9/1/2009 360 359
31 The Hill at Woodway 7.250% 120 116 6/1/2009 360 356
32 Shady Grove Professional Center 8.230% 120 119 9/1/2009 360 359
35 Country Oaks Apartments 7.540% 120 116 6/1/2009 360 356
38 Centerpoint Corporate Center 8.220% 120 118 8/1/2009 360 358
40 Tantara Club Apartments 8.160% 84 83 9/1/2006 360 359
42 Arrowhead Shopping Center 8.120% 120 117 7/1/2009 360 357
45 American Crossing Shopping Center 8.170% 120 119 9/1/2009 360 359
46 Kaiser Permanente Office Building (2) 7.680% 177 176 6/1/2014 177 176
48 Crossroads Shopping Center 8.550% 120 119 9/1/2009 360 359
50 The Palm Breezes Club Manufactured 7.800% 120 117 7/1/2009 360 357
Home Community
51 Majestic Shopping Center 8.280% 120 118 8/1/2009 360 358
54 Mt. Olive Centre 8.140% 120 118 8/1/2009 360 358
55 Applegate Square Shopping Center 8.550% 120 118 8/1/2009 360 358
57 Waters of Winrock Apartments 7.200% 120 119 9/1/2009 360 359
58 Garden Wood Apartments 7.670% 120 117 7/1/2009 360 357
60 Ashton Woods Apartments 7.960% 120 119 9/1/2009 360 359
61 Kmart Shopping Center - Milford 8.115% 120 117 7/1/2009 360 357
66 The Fox Glen I and II Apartments 8.400% 120 119 9/1/2009 360 359
67 Lake Howard Heights Retirement 8.500% 93 92 6/1/2007 360 359
69 Batavia Palms Business Center 8.000% 120 119 9/1/2009 360 359
71 Creekside Apartments (1B) 8.260% 120 119 9/1/2009 360 359
72 Brookside Apartments (1B) 8.260% 120 119 9/1/2009 360 359
73 Glenbrook Centre Apartments (1B) 8.260% 120 119 9/1/2009 360 359
74 Hardwick Apartments (1B) 8.260% 120 119 9/1/2009 360 359
75 Sequoia Bend Apartments 8.160% 84 83 9/1/2006 300 299
<CAPTION>
# Loan/Property Name Prepayment Defeasance Fee/ Interest
Provision (Yes/No) Leasehold Calculation
<S> <C> <C> <C> <C> <C> <C> <C>
4 The Alliance Loan L (9.5), O (0.5) Yes Fee Actual/360
4a Shadow Creek Apartments
4b Copper Cove Apartments
4c Hilltop Apartments
4d Foxboro Apartments
4e The Pinnacle Apartments
7 2 Penn Center Plaza L (9.5), O (0.5) Yes Fee Actual/360
10 Candlewyck Apartments L (9.5), O (0.5) Yes Fee Actual/360
11 Lakes at Palm Beach L (9.5), O (0.5) Yes Fee Actual/360
12 Pensacola Place L (9.5), O (0.5) Yes Fee Actual/360
13 West End Court L (9.5), O (0.5) Yes Fee Actual/360
14 The Ameriserve Loan L (9.75), O (0.25) Yes Fee Actual/360
14a Ameriserve - Burlington, NJ
14b Ameriserve - Grand Rapids, MI
17 Points East Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
18 Hidden Creek Apartments L (9.5), O (0.5) Yes Fee Actual/360
19 800 Madison Avenue L (9.5), O (0.5) Yes Fee Actual/360
21 Schaumburg Corners Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
23 Holiday Inn - Oklahoma City, OK L (9.5), O (0.5) Yes Fee Actual/360
25 Canyon Parke Apartments L (6.75), O (0.25) Yes Fee Actual/360
26 Riverview Marketplace L (9.5), O (0.5) Yes Fee Actual/360
30 Rolling Meadows Plaza L (9.5), O (0.5) Yes Fee Actual/360
31 The Hill at Woodway L (9.5), O (0.5) Yes Fee Actual/360
32 Shady Grove Professional Center L (9.5), O (0.5) Yes Fee Actual/360
35 Country Oaks Apartments L (9.5), O (0.5) Yes Fee Actual/360
38 Centerpoint Corporate Center L (9.5), O (0.5) Yes Fee Actual/360
40 Tantara Club Apartments L (6.5), O (0.5) Yes Fee Actual/360
42 Arrowhead Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
45 American Crossing Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
46 Kaiser Permanente Office Building (2) L (14.25), O (0.5) Yes Fee Actual/360
48 Crossroads Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
50 The Palm Breezes Club Manufactured L (9.5), O (0.5) Yes Fee Actual/360
Home Community
51 Majestic Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
54 Mt. Olive Centre L (9.5), O (0.5) Yes Fee Actual/360
55 Applegate Square Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
57 Waters of Winrock Apartments L (9.5), O (0.5) Yes Fee Actual/360
58 Garden Wood Apartments L (9.5), O (0.5) Yes Fee Actual/360
60 Ashton Woods Apartments L (9.5), O (0.5) Yes Fee Actual/360
61 Kmart Shopping Center - Milford L (9.5), O (0.5) Yes Fee Actual/360
66 The Fox Glen I and II Apartments L (9.5), O (0.5) Yes Fee Actual/360
67 Lake Howard Heights Retirement L (7.25), O (0.5) Yes Fee 30/360
69 Batavia Palms Business Center L (9.5), O (0.5) Yes Fee Actual/360
71 Creekside Apartments (1B) L (9.5), O (0.5) Yes Fee Actual/360
72 Brookside Apartments (1B) L (9.5), O (0.5) Yes Fee Actual/360
73 Glenbrook Centre Apartments (1B) L (9.5), O (0.5) Yes Fee Actual/360
74 Hardwick Apartments (1B) L (9.5), O (0.5) Yes Fee Actual/360
75 Sequoia Bend Apartments L (6.5), O (0.5) Yes Fee Actual/360
</TABLE>
B-1A-2
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Name Street Adress City County
<S> <C> <C> <C> <C> <C> <C> <C>
77 Tenth Street Medical Building 1450 Tenth Street Santa Monica Los Angeles
82 Villa Reanna Apartments 1924 West Pensacola Street Tallahassee Leon
83 Arbor Village Townhomes 6298 Ludington Drive Houston Harris
84 Park South Apartments 3711 Southwest Park South Court Topeka Shawnee
85 Deer Park Mansion 7329 Carrie Lane Deer Park Harris
86 Holiday Inn Southeast - Indianapolis, IN 5120 Victory Drive Indianapolis Marion
87 Lakeshore on the Hill 5600 Lake Resort Terrace Chattanooga Hamilton
88 Sandia Vista Shopping Center 11500 Menaul Boulevard Northeast Albuquerque Bernalillo
90 Spring Medical Building 6226 East Spring Street Long Beach Los Angeles
91 Bingo King Warehouse 1704 and 3211 Nebraska Avenue Council Bluffs Pottawattamie
94 Northland Medical Center 1000 East First Street Duluth St. Louis
95 Murdock Apartments 22210 Southwest Murdock Road Sherwood Washington
97 Chestnut Park Apartments 901-A West Silversands Drive San Antonio Bexar
101 Northern Plaza Shopping Center 740-800 Central Street Millinocket Penobscot
102 Peconic Bay Properties 27-33 and 83-93 Main Street Southampton Suffolk
103 Marketplace at Centerpoint 3999 Centerpoint Parkway Pontiac Oakland
104 New England Financial Building 19935 Ventura Boulevard Woodland Hills Los Angeles
105 Riverlawn Mobile Home Park 8215 Stoner Road Riverview Hillsborough
106 Lakeside Mobile Estates 6610 Northwest Whitney Road Vancouver Clark
107 Signature Lake Apartments 601 Josephine Street Pass Christian Harrison
110 Palmetto Trailer Park 301 North Federal Highway Hallandale Broward
115 Twinbridge Apartment Complex 201 West Blacklidge Street Tucson Pima
116 Marmion Royal Apartments 5800 Marmion Way Los Angeles Los Angeles
117 TYIF Park Condominiums 4315 South Kirkwood Houston Harris
118 Tilbury Garden Apartments 7806-7820 Tilbury Street Bethesda Montgomery
119 The Sanitas Building 3125 Sterling Circle Boulder Boulder
120 2516-2526 North Kedzie Boulevard 2516-2526 North Kedzie Boulevard Chicago Cook
121 Old South Apartments 812 Shaver Road Pasadena Harris
122 Whitfield Village Apartments 6509-6549 Magellan Court Sarasota Manatee
123 Rancocas Valley Professional Arts 220 Sunset Road Willingboro Burlington
Building
124 Arbor Village South Apartments 1829 East 8th Street Anderson Madison
127 Quail Point 1934 Rutland Drive Austin Travis
128 Merriwood Village Apartments 3224 Janet Drive Amarillo Randall
129 85 Old Long Ridge Road 85 Old Long Ridge Road Stamford Fairfield
130 Pavilion Plaza 2168 Diamond Hill Road Woonsocket Providence
131 Avon Manor Apartments 16840 Telegraph Road Detroit Wayne
132 20/20 Greenville Retail Center 2100 Greenville Avenue Dallas Dallas
133 Westover Apartments 5705, 5711 and 5717 North Washington Arlington Arlington
Boulevard, 111 North Kensington, 5716
North 11th Road
134 East 29th Street Apartments (1C) 710, 722 and 811 East 29th Street Norfolk Norfolk City
135 Chesapeake Drive Apartments (1C) 2011 Chesapeake Drive Chesapeake Chesapeake City
136 Sandalwood Square 4325 North 23rd Street Phoenix Maricopa
137 1200 Medical Building 1200 East Genesee Steet Syracuse Onodaga
138 1416 Apartments (1D) 803 South 15th and 810 South 14th Tacoma Pierce
Street
139 1419 Apartments (1D) 1405-1421 South 'J' Street Tacoma Pierce
140 Groton Fashion Plaza 970-992 Poquonnock Road Groton New London
141 Scioto Fairway Woods Apartments 3274 Mapleway Court Columbus Franklin
142 Park Garden Apartments 1701 Rogers Road Fort Worth Tarrant
143 Glenrose Square Apartments 802 Castleglen Drive Garland Dallas
144 Blue Gem Mobile Home Park 6560 Pyramid Lake Highway Sparks Washoe
<CAPTION>
# Loan/Property Name State Zip Originator Original Loan Cut-Off Monthly
Code Balance Date Payment
Balance
<S> <C> <C> <C> <C> <C> <C> <C>
77 Tenth Street Medical Building CA 90401 Column 3,600,000 3,594,700 26,995.00
82 Villa Reanna Apartments FL 32304 Column 3,040,000 3,037,944 22,221.73
83 Arbor Village Townhomes TX 77035 Column 3,040,000 3,036,687 22,540.00
84 Park South Apartments KS 66609 Column 3,030,000 3,027,197 24,972.74
85 Deer Park Mansion TX 77536 Column 2,900,000 2,868,396 20,297.08
86 Holiday Inn Southeast - Indianapolis, IN IN 46203 Column 2,850,000 2,847,394 23,625.03
87 Lakeshore on the Hill TN 37415 Column 2,800,000 2,794,974 22,642.29
88 Sandia Vista Shopping Center NM 87112 Column 2,750,000 2,746,038 20,756.58
90 Spring Medical Building CA 90815 Column 2,700,000 2,698,264 20,208.32
91 Bingo King Warehouse IA 51501 Column 2,700,000 2,695,531 22,014.73
94 Northland Medical Center MN 55802 Column 2,425,000 2,418,243 19,052.46
95 Murdock Apartments OR 97140 Column 2,250,000 2,248,487 16,494.02
97 Chestnut Park Apartments TX 78216 Column 2,150,000 2,147,625 15,865.96
101 Northern Plaza Shopping Center ME 04462 Column 2,000,000 1,998,361 13,306.05
102 Peconic Bay Properties NY 11968 Column 2,000,000 1,995,206 16,239.54
103 Marketplace at Centerpoint MI 48341 Column 1,950,000 1,948,104 15,021.46
104 New England Financial Building CA 91364 Column 1,925,000 1,923,162 15,617.55
105 Riverlawn Mobile Home Park FL 33569 Union Capital 1,920,000 1,917,042 14,195.50
106 Lakeside Mobile Estates WA 98665 Union Capital 1,900,000 1,898,779 14,220.67
107 Signature Lake Apartments MS 39571 Column 1,900,000 1,896,804 13,651.24
110 Palmetto Trailer Park FL 33008 Column 1,800,000 1,798,127 13,560.78
115 Twinbridge Apartment Complex AZ 85705 Column 1,740,000 1,737,222 12,719.02
116 Marmion Royal Apartments CA 90042 Column 1,730,000 1,727,507 13,057.77
117 TYIF Park Condominiums TX 77072 Column 1,690,000 1,687,357 12,435.98
118 Tilbury Garden Apartments MD 20814 Column 1,610,000 1,608,297 12,061.45
119 The Sanitas Building CO 80301 Column 1,600,000 1,597,468 11,729.08
120 2516-2526 North Kedzie Boulevard IL 60647 Column 1,575,000 1,572,773 11,954.47
121 Old South Apartments TX 77506 Column 1,500,000 1,497,345 10,591.12
122 Whitfield Village Apartments FL 34243 Column 1,500,000 1,493,566 13,093.40
123 Rancocas Valley Professional Arts NJ 08046 Column 1,470,000 1,468,676 12,275.84
Building
124 Arbor Village South Apartments IN 46012 Column 1,450,000 1,449,105 11,056.89
127 Quail Point TX 78758 Column 1,365,000 1,363,123 10,447.34
128 Merriwood Village Apartments TX 79109 Column 1,350,000 1,348,592 10,161.09
129 85 Old Long Ridge Road CT 06903 Column 1,350,000 1,347,976 10,066.27
130 Pavilion Plaza RI 02895 Column 1,350,000 1,347,747 10,970.82
131 Avon Manor Apartments MI 48219 Column 1,350,000 1,347,246 10,265.74
132 20/20 Greenville Retail Center TX 75206 Column 1,345,000 1,343,824 11,397.92
133 Westover Apartments VA 22205 Column 1,300,000 1,298,302 10,097.40
134 East 29th Street Apartments (1C) VA 23504 Column 851,000 850,200 6,628.07
135 Chesapeake Drive Apartments (1C) VA 23324 Column 414,000 413,611 3,224.47
136 Sandalwood Square AZ 85015 Column 1,250,000 1,248,760 9,567.16
137 1200 Medical Building NY 13210 Column 1,200,000 1,198,912 9,988.31
138 1416 Apartments (1D) WA 98405 Column 630,000 629,428 5,239.56
139 1419 Apartments (1D) WA 98405 Column 530,000 529,519 4,407.89
140 Groton Fashion Plaza CT 06340 Column 1,050,000 1,048,219 8,476.12
141 Scioto Fairway Woods Apartments OH 43204 Column 1,050,000 1,043,928 9,805.37
142 Park Garden Apartments TX 76107 Column 1,025,000 1,022,019 8,979.70
143 Glenrose Square Apartments TX 75043 Column 1,010,000 1,009,374 7,687.43
144 Blue Gem Mobile Home Park NV 89436 Union Capital 1,000,000 998,838 7,247.22
<CAPTION>
# Loan/Property Name Mortgage Original Remaining Maturity Original Remaining
Rate Term Term Date Amortization mortization
<S> <C> <C> <C> <C> <C> <C> <C>
77 Tenth Street Medical Building 8.230% 120 117 7/1/2009 360 357
82 Villa Reanna Apartments 7.960% 120 119 9/1/2009 360 359
83 Arbor Village Townhomes 8.110% 120 118 8/1/2009 360 358
84 Park South Apartments 8.780% 300 299 9/1/2024 300 299
85 Deer Park Mansion 7.510% 120 104 6/1/2008 360 344
86 Holiday Inn Southeast - Indianapolis, IN 8.850% 120 119 9/1/2009 300 299
87 Lakeshore on the Hill 7.550% 120 119 9/1/2009 240 239
88 Sandia Vista Shopping Center 8.300% 120 117 7/1/2009 360 357
90 Spring Medical Building 8.210% 120 119 9/1/2009 360 359
91 Bingo King Warehouse 8.650% 120 118 8/1/2009 300 298
94 Northland Medical Center 8.460% 120 116 6/1/2009 324 320
95 Murdock Apartments 7.990% 120 119 9/1/2009 360 359
97 Chestnut Park Apartments 8.060% 120 118 8/1/2009 360 358
101 Northern Plaza Shopping Center 7.000% 109 108 10/1/2008 360 359
102 Peconic Bay Properties 8.600% 120 117 7/1/2009 300 297
103 Marketplace at Centerpoint 8.520% 120 118 8/1/2009 360 358
104 New England Financial Building 8.590% 120 119 9/1/2009 300 299
105 Riverlawn Mobile Home Park 8.080% 120 117 7/1/2009 360 357
106 Lakeside Mobile Estates 8.210% 120 119 9/1/2009 360 359
107 Signature Lake Apartments 7.780% 120 117 7/1/2009 360 357
110 Palmetto Trailer Park 8.280% 120 118 8/1/2009 360 358
115 Twinbridge Apartment Complex 7.960% 120 117 7/1/2009 360 357
116 Marmion Royal Apartments 8.300% 120 117 7/1/2009 360 357
117 TYIF Park Condominiums 8.030% 120 117 7/1/2009 360 357
118 Tilbury Garden Apartments 8.220% 120 118 8/1/2009 360 358
119 The Sanitas Building 7.990% 120 117 7/1/2009 360 357
120 2516-2526 North Kedzie Boulevard 8.360% 120 117 7/1/2009 360 357
121 Old South Apartments 7.600% 120 117 7/1/2009 360 357
122 Whitfield Village Apartments 8.580% 240 237 7/1/2019 240 237
123 Rancocas Valley Professional Arts 8.940% 120 119 9/1/2009 300 299
Building
124 Arbor Village South Apartments 8.410% 120 119 9/1/2009 360 359
127 Quail Point 8.450% 120 117 7/1/2009 360 357
128 Merriwood Village Apartments 8.270% 120 118 8/1/2009 360 358
129 85 Old Long Ridge Road 8.170% 120 117 7/1/2009 360 357
130 Pavilion Plaza 8.610% 120 118 8/1/2009 300 298
131 Avon Manor Apartments 8.380% 120 116 6/1/2009 360 356
132 20/20 Greenville Retail Center 9.120% 120 119 9/1/2009 300 299
133 Westover Apartments 8.610% 120 117 7/1/2009 360 357
134 East 29th Street Apartments (1C) 8.640% 120 118 8/1/2009 360 358
135 Chesapeake Drive Apartments (1C) 8.640% 120 118 8/1/2009 360 358
136 Sandalwood Square 8.450% 120 118 8/1/2009 360 358
137 1200 Medical Building 8.900% 120 119 9/1/2009 300 299
138 1416 Apartments (1D) 8.890% 120 119 9/1/2009 300 299
139 1419 Apartments (1D) 8.890% 120 119 9/1/2009 300 299
140 Groton Fashion Plaza 8.530% 120 118 8/1/2009 300 298
141 Scioto Fairway Woods Apartments 7.620% 180 178 8/1/2014 180 178
142 Park Garden Apartments 8.630% 240 238 8/1/2019 240 238
143 Glenrose Square Apartments 8.390% 120 119 9/1/2009 360 359
144 Blue Gem Mobile Home Park 7.870% 120 118 8/1/2009 360 358
<CAPTION>
# Loan/Property Name Prepayment Defeasance Fee/ Interest
Provision (Yes/No) Leasehold Calculation
<S> <C> <C> <C> <C> <C> <C> <C>
77 Tenth Street Medical Building L (9.5), O (0.5) Yes Fee Actual/360
82 Villa Reanna Apartments L (9.5), O (0.5) Yes Fee Actual/360
83 Arbor Village Townhomes L (9.5), O (0.5) Yes Fee Actual/360
84 Park South Apartments L (24.5), O (0.5) Yes Fee Actual/360
85 Deer Park Mansion L (9.5), O (0.5) Yes Fee Actual/360
86 Holiday Inn Southeast - Indianapolis, IN L (9.5), O (0.5) Yes Fee Actual/360
87 Lakeshore on the Hill L (9.5), O (0.5) Yes Fee Actual/360
88 Sandia Vista Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
90 Spring Medical Building L (9.5), O (0.5) Yes Fee Actual/360
91 Bingo King Warehouse L (9.5), O (0.5) Yes Fee Actual/360
94 Northland Medical Center L (9.5), O (0.5) Yes Fee Actual/360
95 Murdock Apartments L (9.5), O (0.5) Yes Fee Actual/360
97 Chestnut Park Apartments L (9.5), O (0.5) Yes Fee Actual/360
101 Northern Plaza Shopping Center L (8.58), O (0.5) Yes Fee Actual/360
102 Peconic Bay Properties L (9.5), O (0.5) Yes Fee Actual/360
103 Marketplace at Centerpoint L (9.5), O (0.5) Yes Fee Actual/360
104 New England Financial Building L (9.5), O (0.5) Yes Fee Actual/360
105 Riverlawn Mobile Home Park L (9.5), O (0.5) Yes Fee Actual/360
106 Lakeside Mobile Estates L (9.5), O (0.5) Yes Fee Actual/360
107 Signature Lake Apartments L (9.5), O (0.5) Yes Fee Actual/360
110 Palmetto Trailer Park L (9.5), O (0.5) Yes Fee Actual/360
115 Twinbridge Apartment Complex L (9.5), O (0.5) Yes Fee Actual/360
116 Marmion Royal Apartments L (9.5), O (0.5) Yes Fee Actual/360
117 TYIF Park Condominiums L (9.5), O (0.5) Yes Fee Actual/360
118 Tilbury Garden Apartments L (9.5), O (0.5) Yes Fee Actual/360
119 The Sanitas Building L (9.5), O (0.5) Yes Fee Actual/360
120 2516-2526 North Kedzie Boulevard L (9.5), O (0.5) Yes Fee Actual/360
121 Old South Apartments L (9.5), O (0.5) Yes Fee Actual/360
122 Whitfield Village Apartments L (19.5), O (0.5) Yes Fee Actual/360
123 Rancocas Valley Professional Arts L (9.5), O (0.5) Yes Fee Actual/360
Building
124 Arbor Village South Apartments L (9.5), O (0.5) Yes Fee Actual/360
127 Quail Point L (9.5), O (0.5) Yes Fee Actual/360
128 Merriwood Village Apartments L (9.5), O (0.5) Yes Fee Actual/360
129 85 Old Long Ridge Road L (9.5), O (0.5) Yes Fee Actual/360
130 Pavilion Plaza L (9.5), O (0.5) Yes Fee Actual/360
131 Avon Manor Apartments L (9.5), O (0.5) Yes Fee Actual/360
132 20/20 Greenville Retail Center L (9.5), O (0.5) Yes Fee Actual/360
133 Westover Apartments L (9.5), O (0.5) Yes Fee Actual/360
134 East 29th Street Apartments (1C) L (9.5), O (0.5) Yes Fee Actual/360
135 Chesapeake Drive Apartments (1C) L (9.5), O (0.5) Yes Fee Actual/360
136 Sandalwood Square L (9.5), O (0.5) Yes Fee Actual/360
137 1200 Medical Building L (9.5), O (0.5) Yes Fee Actual/360
138 1416 Apartments (1D) L (9.5), O (0.5) Yes Fee Actual/360
139 1419 Apartments (1D) L (9.5), O (0.5) Yes Fee Actual/360
140 Groton Fashion Plaza L (9.5), O (0.5) Yes Fee Actual/360
141 Scioto Fairway Woods Apartments L (14.5), O (0.5) Yes Fee Actual/360
142 Park Garden Apartments L (19.5), O (0.5) Yes Fee Actual/360
143 Glenrose Square Apartments L (9.5), O (0.5) Yes Fee Actual/360
144 Blue Gem Mobile Home Park L (9.5), O (0.5) Yes Fee Actual/360
</TABLE>
B-1A-3
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Name Street Adress City County
<S> <C> <C> <C> <C> <C> <C> <C>
145 Bri-Mar Building 6365 Carlson Drive Eden Prairie Hennepin
146 244-256 Orange Place (1E) 244-256 Orange Place Plainfield Union
147 249 Orange Place Apartments (1E) 247-253 Orange Place Plainfield Union
148 Casa De Dallas Apartments 1712 Howard Road Madera Madera
149 Mooring Circle Duplexes 233-253 Mooring Circle Austin Travis
150 Amherst Street Mall 427-429 Amherst Street Nashua Hillsborough
151 Hollywood Video - Cudahy, WI 6001 South Packard Avenue Cudahy Milwaukee
152 Pioneer House Apartments 2851 West Pioneer Drive Irving Dallas
153 St. Charles & Prytania Street Apartments 3102 St. Charles & 1818 Prytania Street New Orleans Orleans
154 Butternut Apartments 413, 415 and 422 Butternut Street Washington District of
Columbia
155 Clarewood Gardens Apartments 5801 Clarewood Houston Harris
156 Autumn Run Apartments 505 East Alexander Lane Euless Tarrant
157 Whittier Gardens 300-304 Aspen Street, 301-305 Whittier Washington District of
Street & 6718-6722 3rd Street Columbia
158 Alan Apartments 8508-8510 Flower Avenue Takoma Park Montgomery
159 Airport Square 1623 White Mountain Highway North Conway Carroll
160 Circa 1886 Building 201-209 Park Avenue Plainfield Union
<CAPTION>
# Loan/Property Name State Zip Originator Original Loan Cut-Off Monthly
Code Balance Date Payment
Balance
<S> <C> <C> <C> <C> <C> <C> <C>
145 Bri-Mar Building MN 55346 Column 992,000 989,128 8,709.53
146 244-256 Orange Place (1E) NJ 07060 Column 500,000 499,253 4,505.06
147 249 Orange Place Apartments (1E) NJ 07060 Column 475,000 474,291 4,279.81
148 Casa De Dallas Apartments CA 93637 Column 960,000 959,387 7,205.41
149 Mooring Circle Duplexes TX 78734 Column 925,000 923,811 7,217.60
150 Amherst Street Mall NH 03063 Column 925,000 922,974 7,762.57
151 Hollywood Video - Cudahy, WI WI 53110 Column 800,000 798,832 6,153.84
152 Pioneer House Apartments TX 75061 Column 800,000 798,766 6,708.09
153 St. Charles & Prytania Street Apartments LA 70115 Column 785,000 784,558 6,231.75
154 Butternut Apartments DC 20012 Column 775,000 773,600 6,094.96
155 Clarewood Gardens Apartments TX 77081 Column 650,000 648,469 5,313.06
156 Autumn Run Apartments TX 76040 Column 640,000 639,600 4,853.17
157 Whittier Gardens DC 20012 Column 515,000 514,070 4,050.20
158 Alan Apartments MD 20912 Column 500,000 498,892 4,178.88
159 Airport Square NH 03860 Column 425,000 424,364 3,604.49
160 Circa 1886 Building NJ 07060 Column 402,000 401,415 3,673.97
<CAPTION>
# Loan/Property Name Mortgage Original Remaining Maturity Original Remaining
Rate Term Term Date Amortization mortization
<S> <C> <C> <C> <C> <C> <C> <C>
145 Bri-Mar Building 8.660% 120 118 8/1/2009 240 238
146 244-256 Orange Place (1E) 9.020% 120 119 9/1/2009 240 239
147 249 Orange Place Apartments (1E) 9.020% 120 119 9/1/2009 240 239
148 Casa De Dallas Apartments 8.240% 120 119 9/1/2009 360 359
149 Mooring Circle Duplexes 8.660% 120 117 7/1/2009 360 357
150 Amherst Street Mall 9.000% 120 117 7/1/2009 300 297
151 Hollywood Video - Cudahy, WI 8.220% 120 118 8/1/2009 324 322
152 Pioneer House Apartments 8.990% 120 118 8/1/2009 300 298
153 St. Charles & Prytania Street Apartments 8.850% 120 119 9/1/2009 360 359
154 Butternut Apartments 8.220% 120 118 8/1/2009 300 298
155 Clarewood Gardens Apartments 8.680% 120 117 7/1/2009 300 297
156 Autumn Run Apartments 8.350% 120 119 9/1/2009 360 359
157 Whittier Gardens 8.220% 120 118 8/1/2009 300 298
158 Alan Apartments 8.950% 120 117 7/1/2009 300 297
159 Airport Square 9.130% 120 118 8/1/2009 300 298
160 Circa 1886 Building 9.220% 120 119 9/1/2009 240 239
<CAPTION>
# Loan/Property Name Prepayment Defeasance Fee/ Interest
Provision (Yes/No) Leasehold Calculation
<S> <C> <C> <C> <C> <C> <C> <C>
145 Bri-Mar Building L (9.5), O (0.5) Yes Fee Actual/360
146 244-256 Orange Place (1E) L (9.5), O (0.5) Yes Fee Actual/360
147 249 Orange Place Apartments (1E) L (9.5), O (0.5) Yes Fee Actual/360
148 Casa De Dallas Apartments L (9.5), O (0.5) Yes Fee Actual/360
149 Mooring Circle Duplexes L (9.5), O (0.5) Yes Fee Actual/360
150 Amherst Street Mall L (9.5), O (0.5) Yes Fee Actual/360
151 Hollywood Video - Cudahy, WI L (9.5), O (0.5) Yes Fee Actual/360
152 Pioneer House Apartments L (9.5), O (0.5) Yes Fee Actual/360
153 St. Charles & Prytania Street Apartments L (9.5), O (0.5) Yes Fee Actual/360
154 Butternut Apartments L (9.5), O (0.5) Yes Fee Actual/360
155 Clarewood Gardens Apartments L (9.5), O (0.5) Yes Fee Actual/360
156 Autumn Run Apartments L (9.5), O (0.5) Yes Fee Actual/360
157 Whittier Gardens L (9.5), O (0.5) Yes Fee Actual/360
158 Alan Apartments L (9.5), O (0.5) Yes Fee Actual/360
159 Airport Square L (9.5), O (0.5) Yes Fee Actual/360
160 Circa 1886 Building L (9.5), O (0.5) Yes Fee Actual/360
</TABLE>
(1A) The Mortgage Loans secured by Radisson South - Bloomington and Le Meridien
- Dallas, respectively, are cross-collateralized and cross-defaulted.
(1B) The Mortgage Loans secured by Creekside Apartments, Brookside Apartments,
Glenbrook Centre Apartments and Hardwick Apartments, respectively, are
cross-collateralized and cross-defaulted.
(1C) The Mortgage Loans secured by East 29th Street Apartments and Chesapeake
Drive Apartments, respectively, are cross-collateralized and
cross-defaulted.
(1D) The Mortgage Loans secured by 1416 Apartments and 1419 Apartments,
respectively, are cross-collateralized and cross-defaulted.
(1E) The Mortgage Loans secured by 244-256 Orange Place and 249 Orange Place
Apartments, respectively, are cross-collateralized and cross-defaulted.
(2) The Mortgage Loan secured by the Kaiser Permanente Office Building is a
CTL Loan and the Credit Tenant is Kaiser Foundation Health Plan, Inc.
- ----
B-1A-4
<PAGE>
EXHIBIT B-1B
SCHEDULE OF GECA MORTGAGE LOANS
B-1B-1
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Name Street Adress City County
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 45 Broadway 45 Broadway New York New York
2 Radisson South - Bloomington (1A) 7800 Normandale Boulevard Bloomington Hennepin
3 Le Meridien - Dallas (1A) 650 North Pearl Street Dallas Dallas
5 Westin Resort - Hilton Head Island 2 Grasslawn Avenue Hilton Head Beaufort
Island
6 Southshore Beach & Tennis Club 901 Shorepoint Court Alameda Alameda
8 Yonkers Shopping Center 2500 Central Park Avenue Yonkers Westchester
9 The Atrium 1900 South Norfolk Street San Mateo San Mateo
15 Rancho Verde Mobile Home Park 750 Rohnert Park Expressway Rohnert Park Sonoma
16 Commerce Centre 1777 Reisterstown Road Pikesville Baltimore
20 The 700 Building 700 East Main Street Richmond Henrico
22 BJ's Wholesale Club 6825 Dublin Center Drive Dublin Franklin
24 The Regency Apartments 505 Regency Drive Fayetteville Cumberland
27 Commons on Apache 1111 Apache Boulevard Tempe Maricopa
28 Olympic Corporate Center Building 3940 Olympic Boulevard Erlanger Boone
29 Chaparral Village 400 West Baseline Road Tempe Maricopa
33 Oxford Square Apartments 1000 Village Greenway Cary Wake
34 Spectrum Retail Center 5888 Westheimer Road Houston Harris
36 Lamplighter - Chino 4400 Philadelphia Street Chino San
Bernardino
37 Park 80 East Office Building 160 Pehle Avenue Saddle Brook Bergen
39 Gold Ridge Apartments 2929 Routier Road Sacramento Sacramento
41 Moulton La Paz Shopping Center 26550 Moulton Parkway Laguna Hills Orange
43 Landmark Hotel 920 North Rampart Street New Orleans New Orleans
44 Legg Mason Center 600 Washington Avenue Towson Baltimore
47 Lakeside Village Shopping Center 9665-9669 North Central Dallas Dallas
Expressway
49 Richmond Tower 3411 Richmond Avenue Houston Harris
52 West Main Place 25-55 South Raymond Avenue, 10- Alhambra Los Angeles
88 South Palm Avenue, 2000 West
Main Street
53 Oxon Run Manor Apartments 204-222 Wayne Place Washington District of
Columbia
56 Heritage Hills Retail Center 9227 and 9231 Lincoln Avenue Littleton Douglas
59 Lehigh Street Shopping Center 2300 Lehigh Street Allentown Lehigh
62 Parkside Center 13881-13901 Midway Road Farmers Branch Dallas
63 Park 51 Medical Building 10512 Park Road Charlotte Mecklenburg
64 Quality Suites - College Station 1010 University Drive East College Station Brazos
65 King Arthur Mobile Home Park 81 Gallahad Way Bozeman Gallatin
68 Stockdale Town Center 3300-3536 Stine Road and 4701- Bakersfield Kern
4771 Planz Road
70 Town Center North 1801, 1851, 1889 and 1899 Willow Signal Hill Los Angeles
Street
76 1264 Lexington Avenue 1264 Lexington Avenue New York New York
78 Storage USA - La Quinta 46-600 Adams Street La Quinta Riverside
79 Storage Loan
79a Action Self Storage - Lewisville 5000 Justin Road Lewisville Denton
79b Good Self Storage 1624 Morgan Boulevard Harlingen Cameron
79c Action Self Storage - Houston 7007 South Lake Houston Parkway Houston Harris
80 Lincolnwood / Pinetree Apartments 2219 South 9th Street Charleston Coles
81 Brookside Mobile Home Park 8155 South 1700 West West Jordan Salt Lake
89 West Valley Place Shopping Center 5300-5324 Doniphan Drive El Paso El Paso
92 Rite Aid - San Jacinto 1605 South San Jacinto Avenue San Jacinto Riverside
93 Federal Point Station 1000 North Lake Park Boulevard Carolina Beach New Hanover
96 Harbour Village 13245 Atlantic Boulevard Jacksonville Duval
98 Village Center 1939, 1945 and 1957 West Dunlap Phoenix Maricopa
Avenue
99 Sherwood Park Apartments 6302 Robin Hood Lane Huntsville Madison
100 Blockbuster Video and Radio Shack 14936 Ventura Boulevard Sherman Oaks Los Angeles
<CAPTION>
# Loan/Property Name State Zip Originator Original Cut-Off Monthly
Code Loan Date Payment
Balance Balance
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 45 Broadway NY 10006 GECA $ 49,000,000 $ 48,969,762 $ 373,646.67
2 Radisson South - Bloomington (1A) MN 55439 GECA 30,300,000 30,237,096 235,871.08
3 Le Meridien - Dallas (1A) TX 75201 GECA 16,200,000 16,166,368 126,109.29
5 Westin Resort - Hilton Head Island SC 29928 GECA 35,000,000 34,953,502 265,446.82
6 Southshore Beach & Tennis Club CA 94501 GECA 35,000,000 34,941,132 251,470.26
8 Yonkers Shopping Center NY 10710 GECA 30,000,000 29,561,900 209,742.76
9 The Atrium CA 94403 GECA 27,500,000 27,468,959 201,401.97
15 Rancho Verde Mobile Home Park CA 94928 GECA 14,750,000 14,739,982 107,613.96
16 Commerce Centre MD 21208 GECA 13,779,000 13,758,528 103,033.09
20 The 700 Building VA 23219 GECA 10,000,000 9,988,743 73,306.76
22 BJ's Wholesale Club OH 43017 GECA 8,789,000 8,779,602 65,596.81
24 The Regency Apartments NC 28314 GECA 8,740,000 8,650,061 57,503.20
27 Commons on Apache AZ 85289 GECA 8,080,000 8,060,016 57,384.40
28 Olympic Corporate Center Building KY 41018 GECA 8,000,000 7,991,375 59,539.85
29 Chaparral Village AZ 85283 GECA 7,999,000 7,979,972 57,637.83
33 Oxford Square Apartments NC 27511 GECA 7,200,000 7,187,994 51,880.53
34 Spectrum Retail Center TX 77057 GECA 7,100,000 7,091,921 51,850.02
36 Lamplighter - Chino CA 91710 GECA 7,000,000 6,995,463 52,195.50
37 Park 80 East Office Building NJ 7663 GECA 6,825,000 6,817,130 49,604.47
39 Gold Ridge Apartments CA 95827 GECA 6,600,000 6,493,812 45,934.12
41 Moulton La Paz Shopping Center CA 92653 GECA 6,400,000 6,385,636 47,094.85
43 Landmark Hotel LA 70116 GECA 6,000,000 5,954,361 60,286.24
44 Legg Mason Center MD 21204 GECA 5,918,000 5,909,473 44,668.15
47 Lakeside Village Shopping Center TX 75231 GECA 5,387,000 5,381,427 40,660.24
49 Richmond Tower TX 77046 GECA 5,119,000 5,116,061 40,307.76
52 West Main Place CA 91801 GECA 4,900,000 4,892,918 36,949.94
53 Oxon Run Manor Apartments DC 20032 GECA 4,880,000 4,826,748 32,204.99
56 Heritage Hills Retail Center CO 80124 GECA 4,614,000 4,606,438 33,438.69
59 Lehigh Street Shopping Center PA 18103 GECA 4,340,000 4,337,022 31,513.21
62 Parkside Center TX 75244 GECA 4,245,000 4,240,473 31,712.39
63 Park 51 Medical Building NC 28210 GECA 4,000,000 3,997,300 29,266.97
64 Quality Suites - College Station TX 77840 GECA 3,994,000 3,990,280 32,809.29
65 King Arthur Mobile Home Park MT 59718 GECA 3,959,000 3,956,496 29,854.05
68 Stockdale Town Center CA 93309 GECA 3,791,000 3,788,617 28,667.29
70 Town Center North CA 90806 GECA 3,755,000 3,752,610 28,236.46
76 1264 Lexington Avenue NY 10028 GECA 3,652,000 3,649,623 27,179.94
78 Storage USA - La Quinta CA 92253 GECA 3,440,000 3,431,045 27,053.76
79 Storage Loan GECA 3,400,000 3,388,112 27,194.67
79a Action Self Storage - Lewisville TX 75077
79b Good Self Storage TX 78550
79c Action Self Storage - Houston TX 77049
80 Lincolnwood / Pinetree Apartments IL 61920 GECA 3,312,000 3,308,779 25,513.37
81 Brookside Mobile Home Park UT 84088 GECA 3,292,000 3,288,373 24,316.37
89 West Valley Place Shopping Center TX 79932 GECA 2,732,000 2,728,112 20,697.72
92 Rite Aid - San Jacinto CA 92583 GECA 2,682,000 2,680,208 19,716.97
93 Federal Point Station NC 28428 GECA 2,599,000 2,595,381 19,818.52
96 Harbour Village FL 32225 GECA 2,200,000 2,198,518 16,112.16
98 Village Center AZ 85021 GECA 2,109,000 2,107,625 15,681.42
99 Sherwood Park Apartments AL 35806 GECA 2,025,000 2,020,069 14,465.39
100 Blockbuster Video and Radio Shack CA 91403 GECA 2,003,000 2,000,051 15,019.72
<CAPTION>
# Loan/Property Name Mortgage Original Remaining Maturity Original Remaining
Rate Term Term Date Amortization Amortization
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 45 Broadway 8.410% 120 119 9/1/2029 360 359
2 Radisson South - Bloomington (1A) 8.100% 120 118 8/1/2024 300 298
3 Le Meridien - Dallas (1A) 8.100% 120 118 8/1/2024 300 298
5 Westin Resort - Hilton Head Island 8.170% 120 118 8/1/2027 336 334
6 Southshore Beach & Tennis Club 7.780% 120 117 7/1/2009 360 357
8 Yonkers Shopping Center 6.880% 120 108 10/1/2023 300 288
9 The Atrium 7.980% 120 118 8/1/2009 360 358
15 Rancho Verde Mobile Home Park 7.940% 120 119 9/1/2009 360 359
16 Commerce Centre 8.200% 120 117 7/1/2009 360 357
20 The 700 Building 7.990% 120 118 8/1/2009 360 358
22 BJ's Wholesale Club 8.180% 120 118 8/1/2009 360 358
24 The Regency Apartments 6.890% 240 227 9/1/2028 360 347
27 Commons on Apache 7.660% 120 116 6/1/2009 360 356
28 Olympic Corporate Center Building 8.150% 120 118 8/1/2009 360 358
29 Chaparral Village 7.810% 120 116 6/1/2009 360 356
33 Oxford Square Apartments 7.810% 120 117 7/1/2009 360 357
34 Spectrum Retail Center 7.950% 120 118 8/1/2009 360 358
36 Lamplighter - Chino 8.170% 60 59 9/1/2004 360 359
37 Park 80 East Office Building 7.900% 120 118 8/1/2009 360 358
39 Gold Ridge Apartments 6.830% 300 287 9/1/2023 300 287
41 Moulton La Paz Shopping Center 8.030% 120 116 6/1/2009 360 356
43 Landmark Hotel 8.840% 120 117 7/1/2009 180 177
44 Legg Mason Center 8.300% 120 117 7/1/2009 360 357
47 Lakeside Village Shopping Center 8.300% 120 118 8/1/2009 360 358
49 Richmond Tower 8.760% 84 83 9/1/2006 360 359
52 West Main Place 8.290% 120 117 7/1/2009 360 357
53 Oxon Run Manor Apartments 6.920% 144 130 8/1/2028 360 346
56 Heritage Hills Retail Center 7.870% 120 117 7/1/2009 360 357
59 Lehigh Street Shopping Center 7.890% 120 119 9/1/2009 360 359
62 Parkside Center 8.190% 120 118 8/1/2009 360 358
63 Park 51 Medical Building 7.970% 120 119 9/1/2009 360 359
64 Quality Suites - College Station 8.740% 120 119 9/1/2009 300 299
65 King Arthur Mobile Home Park 8.290% 120 119 9/1/2009 360 359
68 Stockdale Town Center 8.320% 120 119 9/1/2009 360 359
70 Town Center North 8.260% 120 119 9/1/2009 360 359
76 1264 Lexington Avenue 8.150% 120 119 9/1/2009 360 359
78 Storage USA - La Quinta 8.220% 120 117 7/1/2009 300 297
79 Storage Loan 8.420% 120 116 6/1/2009 300 296
79a Action Self Storage - Lewisville
79b Good Self Storage
79c Action Self Storage - Houston
80 Lincolnwood / Pinetree Apartments 8.520% 120 118 8/1/2009 360 358
81 Brookside Mobile Home Park 8.070% 120 118 8/1/2009 360 358
89 West Valley Place Shopping Center 8.340% 120 117 7/1/2009 360 357
92 Rite Aid - San Jacinto 8.020% 120 119 9/1/2009 360 359
93 Federal Point Station 8.410% 120 117 7/1/2009 360 357
96 Harbour Village 7.980% 120 119 9/1/2009 360 359
98 Village Center 8.140% 120 119 9/1/2009 360 359
99 Sherwood Park Apartments 7.720% 120 116 6/1/2009 360 356
100 Blockbuster Video and Radio Shack 8.230% 120 117 7/1/2009 360 357
<CAPTION>
# Loan/Property Name ARD Date Prepayment Defeasance Fee/ Leasehold Interest
Provision (Yes/No) Calculation
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 45 Broadway 9/1/2009 L (9.75), O (0.25) Yes Fee Actual/360
2 Radisson South - Bloomington (1A) 8/1/2009 L (9.5), O (0.5) Yes Fee/Leasehold 30/360
3 Le Meridien - Dallas (1A) 8/1/2009 L (9.5), O (0.5) Yes Fee 30/360
5 Westin Resort - Hilton Head Island 8/1/2009 L (9.75). O (0.25) Yes Fee Actual/360
6 Southshore Beach & Tennis Club L (9.75), O (0.25) Yes Fee Actual/360
8 Yonkers Shopping Center 10/1/2008 L (9.75), O (0.25) Yes Fee/Leasehold Actual/360
9 The Atrium L (9.75), O (0.25) Yes Fee Actual/360
15 Rancho Verde Mobile Home Park L (9.75), O (0.25) Yes Fee/Leasehold Actual/360
16 Commerce Centre L (9.67), O (0.33) Yes Fee Actual/360
20 The 700 Building L (9.75), O (0.25) Yes Fee Actual/360
22 BJ's Wholesale Club L (9.67), O (0.33) Yes Fee Actual/360
24 The Regency Apartments 9/1/2018 L (19.75), O (0.25) Yes Fee Actual/360
27 Commons on Apache L (9.67), O (0.33) Yes Fee Actual/360
28 Olympic Corporate Center Building L (9.75), O (0.25) Yes Fee Actual/360
29 Chaparral Village L (9.75), O (0.25) Yes Fee Actual/360
33 Oxford Square Apartments L (9.75), O (0.25) Yes Fee Actual/360
34 Spectrum Retail Center L (9.75), O (0.25) Yes Fee Actual/360
36 Lamplighter - Chino L (4.75), O (0.25) Yes Fee Actual/360
37 Park 80 East Office Building L (9.75), O (0.25) Yes Leasehold Actual/360
39 Gold Ridge Apartments L (24.75), O (0.25) Yes Fee Actual/360
41 Moulton La Paz Shopping Center L (9.75), O (0.25) Yes Fee Actual/360
43 Landmark Hotel L (9.75), O (0.25) Yes Fee Actual/360
44 Legg Mason Center L (9.67), O (0.33) Yes Fee/Leasehold Actual/360
47 Lakeside Village Shopping Center L (9.67), O (0.33) Yes Fee Actual/360
49 Richmond Tower L (5), O (2) Yes Fee Actual/360
52 West Main Place L (9.75), O (0.25) Yes Fee Actual/360
53 Oxon Run Manor Apartments 8/1/2010 L (11.75), O (0.25) Yes Fee Actual/360
56 Heritage Hills Retail Center L (9.75), O (0.25) Yes Fee Actual/360
59 Lehigh Street Shopping Center L (9.75), O (0.25) Yes Fee Actual/360
62 Parkside Center L (9.75), O (0.25) Yes Fee Actual/360
63 Park 51 Medical Building L (9.75), O (0.25) Yes Fee Actual/360
64 Quality Suites - College Station L (9.75), O (0.25) Yes Fee Actual/360
65 King Arthur Mobile Home Park L (9.5), O (0.5) Yes Fee Actual/360
68 Stockdale Town Center L (9.75), O (0.25) Yes Fee Actual/360
70 Town Center North L (9.75), O (0.25) Yes Fee Actual/360
76 1264 Lexington Avenue L (9.75), O (0.25) Yes Fee Actual/360
78 Storage USA - La Quinta L (9.75), O (0.25) Yes Fee Actual/360
79 Storage Loan L (9.75), O (0.25) Yes Fee Actual/360
79a Action Self Storage - Lewisville
79b Good Self Storage
79c Action Self Storage - Houston
80 Lincolnwood / Pinetree Apartments L (9.75), O (0.25) Yes Fee Actual/360
81 Brookside Mobile Home Park L (9.75), O (0.25) Yes Fee Actual/360
89 West Valley Place Shopping Center L (9.75), O (0.25) Yes Fee Actual/360
92 Rite Aid - San Jacinto L (9.75), O (0.25) Yes Fee Actual/360
93 Federal Point Station L (9.75), O (0.25) Yes Fee Actual/360
96 Harbour Village L (9.75), O (0.25) Yes Fee Actual/360
98 Village Center L (9.75), O (0.25) Yes Fee Actual/360
99 Sherwood Park Apartments L (9.75), O (0.25) Yes Fee Actual/360
100 Blockbuster Video and Radio Shack L (9.58), O (0.42) Yes Fee Actual/360
</TABLE>
B-1B-2
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Name Street Adress City County
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
108 Niki's Point Apartments 6515-6535 West 24th Avenue Hialeah Miami-Dade
109 Belle Terre Village Apartments/ 1620 Marseille Drive/8875-8893 LaPlace St. John the
Richmond Drive Baptist
Belle Pointe Apartments
111 Palm Valley Crossing 319 North Litchfield Road Goodyear Maricopa
112 Moon Glow Apartments 736 Moon Road Columbus Franklin
113 Manor Court Apartments 13890 NE 3rd Court North Miami Dade
114 Wickham Corners Shopping Center 1050-1070 Wickham Road Melbourne Brevard
125 Kress Energy Center Office Building 224 East Douglas Avenue Wichita Sedgwick
126 11401 Industriplex Warehouse 11401 Industriplex Boulevard Baton Rouge East Baton
Rouge
<CAPTION>
# Loan/Property Name State Zip Originator Original Cut-Off Monthly
Code Loan Date Payment
Balance Balance
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
108 Niki's Point Apartments FL 33016 GECA 1,860,000 1,857,169 13,803.94
109 Belle Terre Village Apartments/ LA 70068 GECA 1,830,000 1,825,497 13,021.93
Belle Pointe Apartments
111 Palm Valley Crossing AZ 85338 GECA 1,800,000 1,797,891 13,007.55
112 Moon Glow Apartments OH 43224 GECA 1,800,000 1,772,211 12,802.52
113 Manor Court Apartments FL 33181 GECA 1,800,000 1,771,046 12,987.34
114 Wickham Corners Shopping Center FL 32935 GECA 1,741,000 1,739,092 12,884.24
125 Kress Energy Center Office Building KS 67202 GECA 1,451,000 1,446,211 10,778.71
126 11401 Industriplex Warehouse LA 70809 GECA 1,400,000 1,397,952 10,517.73
<CAPTION>
# Loan/Property Name Mortgage Original Remaining Maturity Original Remaining
Rate Term Term Date Amortization Amortization
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
108 Niki's Point Apartments 8.120% 120 117 7/1/2009 360 357
109 Belle Terre Village Apartments/ 7.680% 120 116 6/1/2009 360 356
Belle Pointe Apartments
111 Palm Valley Crossing 7.840% 120 118 8/1/2009 360 358
112 Moon Glow Apartments 7.070% 180 167 9/1/2023 300 287
113 Manor Court Apartments 7.230% 300 286 8/1/2023 300 286
114 Wickham Corners Shopping Center 8.090% 120 118 8/1/2009 360 358
125 Kress Energy Center Office Building 8.130% 120 114 4/1/2009 360 354
126 11401 Industriplex Warehouse 8.250% 120 117 7/1/2009 360 357
<CAPTION>
# Loan/Property Name ARD Date Prepayment Defeasance Fee/ Leasehold Interest
Provision (Yes/No) Calculation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
108 Niki's Point Apartments L (9.75), O (0.25) Yes Fee Actual/360
109 Belle Terre Village Apartments/ L (9.75), O (0.25) Yes Fee Actual/360
Belle Pointe Apartments
111 Palm Valley Crossing L (9.75), O (0.25) Yes Fee Actual/360
112 Moon Glow Apartments 9/1/2013 L (14.75), O (0.25) Yes Fee Actual/360
113 Manor Court Apartments L (15), YM 1% No Fee Actual/360
(9.75), O (0.25)
114 Wickham Corners Shopping Center L (9.75), O (0.25) Yes Fee Actual/360
125 Kress Energy Center Office Building L (9.75), O (0.25) Yes Fee Actual/360
126 11401 Industriplex Warehouse L (9.75), O (0.25) Yes Fee Actual/360
</TABLE>
(1A) The Mortgage Loans secured by Radisson South - Bloomington and Le Meridien
- Dallas, respectively, are cross-collateralized and cross-defaulted.
(1B) The Mortgage Loans secured by Creekside Apartments, Brookside Apartments,
Glenbrook Centre Apartments and Hardwick Apartments, respectively, are
cross-collateralized and cross-defaulted.
(1C) The Mortgage Loans secured by East 29th Street Apartments and Chesapeake
Drive Apartments, respectively, are cross-collateralized and
cross-defaulted.
(1D) The Mortgage Loans secured by 1416 Apartments and 1419 Apartments,
respectively, are cross-collateralized and cross-defaulted.
(1E) The Mortgage Loans secured by 244-256 Orange Place and 249 Orange Place
Apartments, respectively, are cross-collateralized and cross-defaulted.
B-1B-3
<PAGE>
DLJ Commercial Mortgage Corp. Commercial Mortgage Pass Through Certificates,
Series 1999-CG3
Schedule of Exceptions to Mortgage File Delivery
Exhibit B-2
<TABLE>
<CAPTION>
Loan Property Document Code Exception Comment
ID Name
<S> <C> <C> <C> <C> <C>
11999CG3 45 BROADWAY NOTE 22 Endorsement(s) GECC TO NORWEST, UNEXECUTED
Is Missing/incorrect
21999CG3 RADISSON SOUTH NOTE 22 Endorsement(s) GECC TO NORWEST, UNEXECUTED
Is Missing/incorrect
31999CG3 LE MERIDIEN - D NOTE 22 Endorsement(s) GECC TO NORWEST, UNEXECUTED
Is Missing/incorrect
51999CG3 WESTIN RESORT - NOTE 22 Endorsement(s) GECC TO NORWEST, UNEXECUTED
Is Missing/incorrect
81999CG3 YONKERS SHOPPIN NOTE 22 Endorsement(s) GECC TO NORWEST, UNEXECUTED
Is Missing/incorrect
1231999CG3 RANCOCAS NOTE 22 Endorsement(s) BORROWER ON END: P SEVEN REAL
VALLEY Is Missing/incorrect ESTATE NOTE: RANCOCAS VALLEY
</TABLE>
B-2-1
<PAGE>
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
Column Financial Inc. GE Capital Loan Services, Inc.
3414 Peachtree Road, N.E. 363 North Sam Houston Parkway East,
Suite 1140 Suite 1200
Atlanta, Georgia 30326-1113 Houston, Texas 77060
Donaldson, Lufkin & Jenrette GE Capital Access, Inc.
Securities Corporation 125 Park Avenue, 10th Floor
277 Park Avenue New York, New York 10017
New York, New York 10172
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, New York 10172
Re: DLJ Commercial Mortgage Corp, Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of October 1, 1999 and related to the above-referenced Certificates
(the "Agreement"), Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"), hereby certifies as to each Original Mortgage Loan subject to the
Agreement (except as identified in the exception report attached hereto) that:
(i) the original Mortgage Note specified in clause (i) of the definition of
"Mortgage File" in the Agreement or a lost note affidavit in lieu thereof, the
original or copy of each recorded document specified in clauses (ii) through (v)
of the definition of "Mortgage File" in the Agreement, the original or copy of
the policy of title insurance specified in clause (vii) of the definition of
"Mortgage File" in the Agreement and each document specified in clause (viii) of
the definition of "Mortgage File" in the Agreement (without regard to the
parenthetical in such clause (viii)), is in its possession or the possession of
a Custodian on its behalf; (ii) if the date of this report is after April 1,
2000, the recordation/filing contemplated by Section 2.01(e) has been completed
(based solely on receipt by the Trustee of the particular recorded/filed
documents); (iii) all documents received by it or any Custodian with respect to
such Mortgage Loan have been reviewed by it or by such Custodian on its behalf
and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Mortgage
Loan; and (iv) based on the examinations referred to in Section 2.02(a) and
Section 2.02(b) of the Agreement and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with
B-3-1
<PAGE>
respect to the items specified in clauses (ii) (other than the zip code)
and (vi)(B) of the definition of "Mortgage Loan Schedule" in the Agreement
accurately reflects the information set forth in the Mortgage File.
Pursuant to Section 2.02(c) of the Agreement, neither the Trustee
nor the Custodian is under any obligation to inspect, review or examine any of
the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, neither the Trustee nor the Custodian shall have any
responsibility for determining whether the text of any assignment or endorsement
is in proper or recordable form, whether the requisite recording of any document
is in accordance with the requirements of any applicable jurisdiction, or
whether a blanket assignment is permitted in any applicable jurisdiction.
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Agreement.
Respectfully,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:_____________________________
Name:
Title:
B-3-2
<PAGE>
EXHIBIT C
LETTER OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITORY
C-1
<PAGE>
[LOGO]
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)
(WITHOUT OWNER OPTION TO REDEEM)
OTHER ASSET-BACKED SECURITIES/AND PASS-THROUGH CERTIFICATES
Letter of Representations
[To be Completed by Issuer and Agent]
DLJ Commercial Mortgage Corp.
[Name of Issuer]
Norwest Bank Minnesota, National Association
[Name of Agent]
October 11, 1999
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, Class S, Class A-lA, Class A-1B,
Class A-1C, Class A-2, Class A-3, Class A-4, Class B-1 and
Class B-2
[Issue Description]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Agent will act as
trustee, paying agent, fiscal agent, or other such agent of Issuer with respect
to the Securities pursuant to the Pooling and Servicing Agreement, or other such
document dated October 1, 1999 (the "Document"). Donaldson, Lufkin & Jenrette
Securities Corporation is distributing the Securities through The Depository
Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on October 12, 1999, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., or for each
<PAGE>
stated maturity of the Securities in the face amounts set forth on Schedule A
hereto, the total of which represents 100% of the principal amount of such
Securities. If, however, the aggregate principal amount of any maturity exceeds
$200 million, one certificate will be issued with respect to each $200 million
of principal amount and an additional certificate will be issued with respect to
any remaining principal amount. Each Security certificate shall bear the
following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall, to the extent possible, send notice of such record date to
DTC not less than 15 calendar days in advance of such record date. Notices to
DTC pursuant to this Paragraph by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-6896 or (212) 709-6897, and receipt of such notices
shall be confirmed by telephoning (212) 709-6870. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to DTC's
Reorganization Department as indicated in Paragraph 5.
4. In the event of a full or partial redemption, Issuer or Agent shall send
a notice to DTC specifying: (a) the amount of the redemption or refunding; (b)
in the case of a refunding. the maturity date(s) established under the
refunding; and (c) the date such notice is to be mailed to Security holders or
published (the "Publication Date"). Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 days nor more than 60 days prior to the redemption date or, in the case
of an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be sent to DTC's
Call Notification Department at (516) 227-4039 or (516) 227-4190. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (516) 227-4070. Notices
to DTC pursuant to this Paragraph by mail or by any other means shall be sent
to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
<PAGE>
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders specifing the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner set forth in
the preceding Paragraph. Notices to DTC pursuant to this Paragraph and notices
of other corporate actions by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-1093 or (212) 709-1094, and receipt of such notices
shall be confirmed by telephoning (212) 709-6884. Notices to DTC pursuant to the
above by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004-2695
6. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
7. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably 5, but not less than 2,
business days prior to such payment date. Such notices, which shall also contain
the current pool factor, any special adjustments to principal/interest rates
(e.g., adjustments due to deferred interest or shortfall), and Agent contact's
name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (212) 709-1723, or if by mail or by any other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
8. [Note: Issuer must represent one of the following, and cross out the
other:] [The interest accrual period is record date to record date.]
9. Issuer or Agent shall provide a written notice of interest payment
information to a standard interest announcement service subscribed to by DTC as
soon as the information is available. In the unlikely event that no such service
exists, Issuer or Agent shall provide such notice directly to DTC
electronically, as previously arranged by Issuer or Agent and DTC, as soon as
the information is available. If electronic transmission is not available,
absent any other arrangements between Issuer or Agent and DTC, such information
should be sent by telecopy to DTC's Dividend Department at (212) 709-1723 or
(212) 709-1686, and receipt of such notices shall be confirmed by telephoning
(212) 709-1270. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
<PAGE>
10. Issuer or Agent shall provide CUSIP numbers for each issue for which
payment is being sent, as well as the dollar and cent amount of the payment for
each issue to DTC, no later than noon (Eastern Time) on the payment date.
11. lnterest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., nominee of DTC,
or its registered assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on each payment date. Absent any other arrangements between Issuer or
Agent and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066-026776
12. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
13. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the first
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
14. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
15. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
16. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In
-4-
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others.
17. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
20. This Letter of Representations is governed by, and shall be construed
in accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated into
this Letter of Representations:
Rider Amending DTC Letter of Representations, ERISA Rider and "DWAC" Rider.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Notes: Very truly yours,
A. If there is an Agent (as defined in
this Letter of Representations), Agent DLJ Commercial Mortgage Corp.
as well as Issuer must sign this --------------------------------
Letter. If there is no Agent, in (Issuer)
signing this Letter Issuer itself
undertakes to perform all of the By: /s/ N. Dante LaRocca
obligations set forth herein. --------------------------------
(Authorized Officer's Signature)
B. Schedule B contains statements that
DTC believes accurately describe DTC, Norwest Bank Minnesota,
the method of effecting book entry National Association
transfers of securities distributed --------------------------------
through DTC, and certain related (Agent)
matters.
By: /s/ Leslie Gaskill
--------------------------------
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Richard B. Jesson
-----------------------------
cc: Underwriter
Underwriter's Counsel
-5-
<PAGE>
SCHEDULE A
DLJ COMMERCIAL MORTGAGE CORP.,
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
CUSIP Principal Maturity Interest
Class Number Amount Date(1) Rate(2)
- ----- ------ ------ ---- ----
Class S-1 23322BFY9 $ 200,000,000 September 10, 2024 0.8943
Class S-2 23322BFY9 $ 200,000,000 September 10, 2024 0.8943
Class S-3 23322BFY9 $ 200,000,000 September 10, 2024 0.8943
Class S-4 23322BFY9 $ 200,000,000 September 10, 2024 0.8943
Class S-5 23322BFY9 $ 99,289,205 September 10, 2024 0.8943
Class A-1A-1 23322BFZ6 $ 140,618,000 October 10, 2008 7.1200
Class A-1B-1 23322BGBB $ 200,000,000 September 10, 2009 7.3400
Class A-1B-2 23322BGBB $ 200,000,000 September 10, 2009 7.3400
Class A-1B-3 23322BGBB $ 109,118,000 September 10, 2009 7.3400
Class A-1C 23322BGAO $ 17,716,000 September 10, 2009 7.4400
Class A-2 23322BGC6 $ 25,000,000 September 10, 2009 7.5400
Class A-3 23322BGD4 $ 49,461,000 September 10, 2009 7.7300
Class A-4 23322BGE2 $ 13,489,000 September 10, 2009 7.8300
Class A-5 23322BGF9 $ 15,738,000 September 10, 2009 8.1200
Class B-1 23322BGG7 $ 17,986,000 September 10, 2009 8.2400
Class B-2 23322BGH5 $ 15,737,000 September 10, 2009 8.2400
- ----------
(1) If the stated date is not a business day, the maturity date is the business
day immediately following the stated date.
(2) Approximate. The interest rates shown are the approximate rates applicable
for distributions in November, 1999. The interest rates are variable or
otherwise subject to change.
<PAGE>
SCHEDULE B
SAMPLE OFFICIAL STATEMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Security certificate will be
issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $200 million, one certificate
will be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
-i-
<PAGE>
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co's
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to Cede &
Co., as nominee of DTC. DTC's practice is to credit Direct Participants'
accounts, upon DTC's receipt of funds and corresponding detail information from
Issuer or Agent, on payable date in accordance with their respective holdings
shown on DTC's records. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such Participant and not of
DTC, Agent, or Issuer, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal and interest to Cede &
Co. is the responsibility of Issuer or Agent, disbursement of such payments to
Direct Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to Agent [or Tender/Remarketing
Agent], and shall effect delivery of such Securities by causing the Direct
Participant to transfer the Participant's interest in the Securities, on DTC's
records, to Agent [or Tender/Remarketing Agent]. The requirement for physical
delivery of Securities in connection with an optional tender or a mandatory
purchase will be deemed satisfied when the ownership rights in the Securities
are transferred by Direct Participants on DTC's records and followed by a
book-entry credit of tendered Securities to Agent [or Tender/Remarketing
Agent's] DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
<PAGE>
Rider Amending DTC Letter of Representations -- BEO Collateralized Mortgage
Obligations (CMO) Without Owner Option to Redeem/Other Asset-Backed Securities
/and Pass-Through Certificates
DTC's Reorganization and Dividend Departments have relocated to 55 Water Street.
Following are revisions to the Letter of Representations, including current
addresses, telephone numbers, and telecopy numbers.
Paragraph 3 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-6896 and (212) 709-6897 (212) 855-5181 and 855-5182
The confirmation number (formerly (212) 709-6870) is now (212) 855-5202.
Paragraph 5 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-1093 and (212) 709-1094 (212) 855-5278
The confirmation number (formerly (212) 709-6884) is now (212) 855-5280.
The current address is: Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
Paragraph 7 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-1723 (212) 855-4555
The current address is: Manager; Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
Paragraph 9 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-1723 and (212) 709-1686 (212) 855-4555 and (212) 855-4556
The confirmation number (formerly (212) 709-1270) is now (212) 855-4550.
The current address for Paragraph 9 is the same as that listed above, for
Paragraph 7.
<PAGE>
The following additional text relates to Paragraph 10 of the Letter of
Representations:
Such information shall be conveyed by automated notification. If the
circumstances prevent the funds being paid to Cede & Co., as nominee of DTC, by
2:30 p.m. ET from equaling the dollar amount associated with detail payments by
12:00 noon ET, Issuer or Agent must provide CUSIP-level reconciliation to DTC no
later than 2:30 p.m. ET. Reconciliation may be provided by automated means or
in written format.
The following additional text relates to Paragraph 11 of the Letter of
Representations:
Issuer must remit free funds to Agent by 1:00 p.m. ET on each payment date, or
at such earlier time as required by Agent to guarantee timely credit to the
Dividend Deposit Account of Cede & Co.
The following additional text relates to Paragraph 12 of the Letter of
Representations:
Issuer must remit free funds to Agent by 1:00 p.m. ET on each payment date, or
at such earlier time as required by Agent to guarantee timely credit to the
Redemption Deposit Account of Cede & Co. Issuer or Agent shall deliver
CUSIP-level detail regarding such payments to DTC no later than 2:30 p.m. ET on
each payment date.
The following additional text relates to Paragraph 13 of the Letter of
Representations:
Issuer must remit free funds to Agent by 1:00 p.m. ET on each payment date, or
at such earlier time as required by Agent to guarantee timely credit to the
Reorganization Deposit Account of Cede & Co. Issuer or Agent shall deliver
CUSIP-level detail regarding such payments to DTC no later than 2:30 p.m. ET on
each payment date.
<PAGE>
REPRESENTATIONS FOR ERISA-RESTRICTED SECURITIES
to be included in DTC Letter of Representatios
Issuer and Agent recognize that DTC does not in any way undertake to, and
shall not have any responsibility to, monitor or ascertain whether a transfer of
Securities could give rise to a transaction prohibited or not otherwise
permissible under the Employee Retirement Income Security Act of 1974 or under
Section 4975 of the Internal Revenue Code of 1986. Issuer and Agent acknowledge
that: a) so long as Cede & Co. is the sole record owner of the Securities, it
shall be entitled to all voting rights in respect thereof and to receive the
full amount of all principal, premium, if any, and interest payable with respect
thereto; and b) DTC shall treat any DTC Participant having Securities credited
to its DTC accounts as entitled to the full benefits of ownership of such
Securities even if the crediting of such Securities to the DTC accounts of such
Participant results from transfers or failures to transfer in violation of such
laws. (The treatment by DTC of the effects of the crediting by it of Securities
to the accounts of DTC Participants shall not affect the rights of Issuer or
purchasers, sellers, or holders of Securities against any DTC Participant.)
<PAGE>
REPRESENTATIONS FOR DEPOSIT/WITHDRAWAL AT CUSTODIAN ("DWAC")
to be included in DTC Letter of Representations
The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives an
instruction originated by a Participant through DTC's Deposit/Withdrawal at
Custodian ("DWAC") system to increase the Participant's acount by a specified
number of shares, units, or obligations (a "Deposit Instruction"), Agent shall,
before 6:30 p.m. (Eastern Time) that day, either approve or cancel the Deposit
Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives an
instruction originated by a Participant through the DWAC system to decrease the
Participant's account by a specified number of shares, units, or obilgations (a
"Withdrawal Instruction"), Agent shall, at or before 6:30 p.m. (Eastern Time)
that day, either approve or cancel the Withdrawal Instruction through the DWAC
system.
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated security on registration of transfer to the name of Cede & Co. for
the quantity of securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1015 10th Avenue, S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3
In connection with the administration of the Mortgage Files held by
or on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of October 1, 1999 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, the undersigned as master servicer (in
such capacity, the "Master Servicer"), GMAC Commercial Mortgage Corporation as
special servicer and you as trustee (in such capacity, the "Trustee"), the
undersigned as Master Servicer hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by or on behalf of you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be
credited to the Collection Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof, unless the Mortgage
Loan
D-1-1
<PAGE>
has been paid in full, in which case the Mortgage File (or such portion thereof)
will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
GE CAPITAL LOAN SERVICES, INC.
as Master Servicer
By:_______________________________
Name:
Title:
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1015 10th Avenue, S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Pass-Through Certificates,
Series 1999-CG3
In connection with the administration of the Mortgage Files held by
or on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of October 1, 1999 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, GE Capital Loan Services, Inc. as master
servicer, the undersigned as special servicer (the "Special Servicer") and you
as trustee (in such capacity, the "Trustee"), the undersigned as Special
Servicer hereby requests a release of the Mortgage File (or the portion thereof
specified below) held by or on behalf of you as Trustee with respect to the
following described Mortgage Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
D-2-1
<PAGE>
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
GMAC COMMERCIAL MORTGAGE CORPORATION
as Special Servicer
By:_______________________________________
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E-1
FORM OF TRUSTEE REPORT
E-1-1
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
DISTRIBUTION DATE STATEMENT
Table of Contents
================================================================================
STATEMENT SECTIONS PAGE(s)
- ------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property Stratification Tables 7-9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specially Serviced Loan Detail 14-15
Modified Loan Detail 16
Liquidated Loan Detail 17
================================================================================
Underwriter
================================================================================
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, NY 10172
Contact: N. Dante LaRocca
Phone Number: (212) 892-3000
================================================================================
Servicer
================================================================================
GE Capital Loan Services Inc.
363 North Sam Houston Parkway, East
Suite 1200
Houston, TX 77060
Contact: Shelly Shrimpton
Phone Number: (281) 405-7087
================================================================================
Special Servicer
================================================================================
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, PA 10944-8015
Contact: Coral I. Horstmeyer
Phone Number: (215) 328-1790
================================================================================
This report has been compiled from information provided to Norwest by various
third parties, which may include the Servicer, Master Servicer, Special Servicer
and others. Norwest has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Norwest
expressly disclaims any responsibility for the accuracy or completeness of
information furnished by third parties.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N. A. Page 1 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Certificate Distribution Detail
<TABLE>
<CAPTION>
===================================================================================================================================
Realized Loss/
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending
Class CUSIP Rate Balance Balance Distribution Distribution Penalties Fund Expenses Distribution Balance
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-5 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-5 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-6 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-7 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-8 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-I 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-II 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-III 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
===================================================================================================================================
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
===================================================================================================================================
<CAPTION>
======================
Current
Subordination
Class Level(1)
======================
<S> <C>
A-1A 0.00%
A-1B 0.00%
A-1C 0.00%
A-2 0.00%
A-3 0.00%
A-4 0.00%
A-5 0.00%
B-1 0.00%
B-2 0.00%
B-3 0.00%
B-4 0.00%
B-5 0.00%
B-6 0.00%
B-7 0.00%
B-8 0.00%
C 0.00%
D 0.00%
E 0.00%
R-I 0.00%
R-II 0.00%
R-III 0.00%
======================
Totals
======================
</TABLE>
<TABLE>
<CAPTION>
====================================================================================================
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Penalties Distribution Amount
====================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================
</TABLE>
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending certificate balance of the designated
class and (ii) the ending certificate balance of all classes which are not
subordinate to the designated class and dividing the result by (A).
================================================================================
Copyright 1997, Norwest Bank Minnesota, N. A. Page 2 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Certificate Factor Detail
<TABLE>
<CAPTION>
===================================================================================================
Realized Loss/
Beginning Principal Interest Prepayment Additional Ending
Class CUSIP Balance Distribution Distribution Penalties Fund Expenses Balance
====================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-5 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-5 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-6 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-7 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-8 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-I 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-II 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-III 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
====================================================================================================
</TABLE>
=================================================================
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
=================================================================
S 0.00000000 0.00000000 0.00000000 0.00000000
================================================================================
Copyright 1997, Norwest Bank Minnesota, N. A. Page 3 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Reconciliation Detail
Advance Summary
P & I Advances Outstanding 0.00
Servicing Advances Outstanding 0.00
Reimbursement for Interest on Advances 0.00
paid from general collections
Servicing Fee Breakdowns
Current Period Accrued Master Servicing Fees 0.00
Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servicing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
Certificate Interest Reconciliation
<TABLE>
<CAPTION>
=============================================================================================================================
Accrued Net Aggregate Distributable Distributable Additional Remaining Unpaid
Certificate Prepayment Certificate Certificate Interest Trust Fund Interest Distributable
Class Interest Interest Shortfall Interest Adjustment Expenses Distribution Certificate Interest
=============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
S 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-6 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-7 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-8 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00 0.00 0.00 0.00
=============================================================================================================================
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00
=============================================================================================================================
</TABLE>
================================================================================
Copyright 1997, Norwest Bank Minnesota, N. A. Page 4 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Other Required Information
- --------------------------------------------------------------------------------
Available Distribution Amount 0.00
Original Number of Outstanding Loans 0
Aggregate Number of Outstanding Loans 0
Aggregate Stated Principal Balance of Loans 0.00
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Stated Principal Balance of Loans 0.00
Interest Reserve Deposit 0.00
Interest Reserve Withdrawal 0.00
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00
- --------------------------------------------------------------------------------
Cumulative Realized Losses
Class A-1A 0.00
Class A-1B 0.00
Class A-1C 0.00
Class A-2 0.00
Class A-3 0.00
Class A-4 0.00
Class A-5 0.00
Class B-1 0.00
Class B-2 0.00
Class B-3 0.00
Class B-4 0.00
Class B-5 0.00
Class B-6 0.00
Class B-7 0.00
Class B-8 0.00
Class C 0.00
Class D 0.00
Class E 0.00
Appraisal Reduction Amount
=================================================
Appraisal Date Appraisal
Loan Reduction Reduction
Number Amount Effected
=================================================
=================================================
Total
=================================================
================================================================================
Copyright 1997, Norwest Bank Minnesota, N. A. Page 5 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Ratings Detail
================================================================================
Original Ratings Current Ratings (1)
------------------------------------------------------------
Class CUSIP DCR Fitch Moody's S & P DCR Fitch Moody's S & P
================================================================================
================================================================================
NR - Designates that the class was not rated by the above agency at the time
of original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain rating
information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date
listed above. The ratings may have changed since they were obtained. Because the
ratings may have changed, you may want to obtain current ratings directly from
the rating agencies.
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
(312) 368-3100
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
(212) 908-0500
Moody's Investors Service
99 Church Street
New York, New York 10007
(212) 553-0300
Standard & Poor's Rating Services
26 Broadway
New York, New York 10004
(212) 208-8000
================================================================================
Copyright 1997, Norwest Bank Minnesota, N. A. Page 6 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Current Mortgage Loan and Property Stratification Tables
Scheduled Balance
================================================================================
% of
Scheduled # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
State (3)
================================================================================
% of
# of Scheduled Agg. WAM Weighted
State Props. Balance Bal. (2) WAC Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
See footnotes on last page of this section.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N. A. Page 7 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Current Mortgage Loan and Property Stratification Tables
Debt Service Coverage Ratio
================================================================================
Debt Service # of Scheduled % of WAM Weighted
Coverage Ratio Loans Balance Agg (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Note Rate
================================================================================
Note # of Scheduled % of WAM Weighted
Rate Loans Balance Agg (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Property Type (3)
================================================================================
Property # of Scheduled % of WAM Weighted
Type Props. Balance Agg (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Seasoning
================================================================================
# of Scheduled % of WAM Weighted
Seasoning Loans Balance Agg (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
See footnotes on last page of this section.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 8 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Current Mortgage Loan and Property Stratification Tables
Anticipated Remaining Term (ARD and Balloon Loans)
================================================================================
Anticipated # of Scheduled % of WAM Weighted
Remaining Loans Balance Agg. (2) WAC Avg DSCR (1)
Term(2) Bal.
================================================================================
================================================================================
Totals
================================================================================
Remaining Amortization Term (ARD and Balloon Loans)
================================================================================
Remaining # of Scheduled % of WAM Weighted
Amortization Loans Balance Agg. (2) WAC Avg DSCR (1)
Term Bal.
================================================================================
================================================================================
Totals
================================================================================
Remaining Stated Term (Fully Amortizing Loans)
================================================================================
Remaining # of Scheduled % of WAM Weighted
Stated Loans Balance Agg. (2) WAC Avg DSCR (1)
Term Bal.
================================================================================
================================================================================
Totals
================================================================================
Age of Most Recent NOI
================================================================================
Age of Most # of Scheduled % of WAM Weighted
Recent NOI Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most current
DSCR provided by the Servicer is used. To the extent that no DSCR is provided by
the Servicer, information from the offering document is used. The Trustee makes
no representations as to the accuracy of the data provided by the borrower for
this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the related
mortgage loan as disclosed in the offering document.
Note: (i) "Scheduled Balance" has the meaning assigned thereto in the CSSA
Standard Information Package.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 9 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Mortgage Loan Detail
<TABLE>
<CAPTION>
====================================================================================================================================
Anticipated Neg. Beginning Ending Paid Appraisal
Loan ODCR Property City State Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru Reduction
Number Type (1) Payment Payment Coupon Date Date (Y/N) Balance Balance Date Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
Totals
====================================================================================================================================
</TABLE>
===============================
Appraisal Res. Mod.
Loan Reduction Strat. Code
Number Amount (2) (3)
===============================
===============================
Totals
===============================
(1) Property Type Code (2) Resolution Strategy Code (3) Modification Code
- ---------------------- ---------------------------- ---------------------
MF - Multi- Family 1 - Modification 1 - Maturity Date Extension
RT - Retail 2 - Foreclosure 2 - Amortization Change
HC - Health Care 3 - Bankruptcy 3 - Principal Write-Off
IN - Industrial 4 - Extension 4 - Combination
WH - Warehouse 5 - Note Sale
MH - Mobile Home Park 6 - DPO
OF - Office 7 - REO
MU - Mixed Use 8 - Resolved
LO - Lodging 9 - Pending Return
SS - Self Storage to Master Servicer
OT - Other 10 - Deed In Lieu Of
Foreclosure
11 - Full Payoff
12 - Reps and Warranties
13 - Other or TBD
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 10 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Principal Prepayment Detail
<TABLE>
<CAPTION>
================================================================================================================
Principal Prepayment Amount Prepayment Penalties
Offering Document --------------------------------- ---------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Precentage Premium Yield Maintenance Premium
================================================================================================================
<S> <C> <C> <C> <C> <C>
===============================================================================================================
Totals
===============================================================================================================
</TABLE>
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 11 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Historical Detail
<TABLE>
<CAPTION>
====================================================================================================================================
Delinquencies Prepayments Rate and Maturities
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance # Balance # Balance # Balance # Balance # Amount # Amount Coupon Remit WAM
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
</TABLE>
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 12 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Delinquency Loan Detail
<TABLE>
<CAPTION>
=============================================================================================================================
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date Date
=============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
=============================================================================================================================
Totals
=============================================================================================================================
</TABLE>
Delinquency Loan Detail
==========================================================
Current Outstanding
Servicing Servicing REO
Loan Number Advances Advances Bankruptcy Date Date
==========================================================
==========================================================
Totals
==========================================================
(1) Status of Mortgage Loan (2) Resolution Strategy Code
--------------------------- ----------------------------
1 - Modification 1 - Modification
2 - Foreclosure 2 - Foreclosure
3 - Bankruptcy 3 - Bankruptcy
4 - Extension 4 - Extension
5 - Note Sale 5 - Note Sale
6 - DPO 6 - DPO
7 - REO 7 - REO
8 - Resolved 8 - Resolved
9 - Pending Return 9 - Pending Return
to Master Servicer to Master Servicer
10 - Deed In Lieu Of 10 - Deed In Lieu Of
Foreclosure Foreclosure
11 - Full Payoff
12 - Reps and Warranties
13 - Other or TBD
** Outstanding P & I Advances include the current period advance
===============================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 13 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Specially Serviced Loan Detail - Part 1
<TABLE>
<CAPTION>
====================================================================================================================================
Offering Servicing Resolution Net
Distribution Loan Document Transfer Strategy Scheduled Property State Interest Actual Operating NOI
Date Number Cross-Reference Date Code (1) Balance Type (2) Rate Balance Income Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
<CAPTION>
=================================================
Note Maturity Remaining
Distribution DSCR Date Date Amortization
Date Term
=================================================
<S> <C> <C> <C> <C>
=================================================
</TABLE>
(1) Resolution Strategy Code (2) Property Type Code
---------------------------- ----------------------
1 - Modification MF - Multi-Family
2 - Foreclosure RT - Retail
3 - Bankruptcy HC - Health Care
4 - Extension IN - Industrial
5 - Note Sale WH - Warehouse
6 - DPO MH - Mobile Home Park
7 - REO OF - Office
8 - Resolved MU - Mixed Use
9 - Pending Return LO - Lodging
to Master Servicer SS - Self Storage
10 - Deed In Lieu Of OT - Other
Foreclosure
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 14 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Specially Serviced Loan Detail - Part 2
<TABLE>
<CAPTION>
===================================================================================================================================
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
===================================================================================================================================
</TABLE>
(1) Resolution Strategy Code
----------------------------
1 - Modification
2 - Foreclosure
3 - Bankruptcy
4 - Extension
5 - Note Sale
6 - DPO
7 - REO
8 - Resolved
9 - Pending Return
to Master Servicer
10 - Deed In Lieu Of
Foreclosure
11 - Full Payoff
12 - Reps and Warranties
13 - Other or TBD
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 15 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Modified Loan Detail
================================================================================
Offering
Loan Document Pre-Modification Modification
Number Cross-Reference Balance Modification Date Description
================================================================================
================================================================================
Total
================================================================================
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 16 of 17
<PAGE>
DLJ Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
------------------------------------------
[LOGO] NORWEST BANKS(R) For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 11/10/1999
Record Date: 10/29/1999
================================================================================
Liquidated Loan Detail
<TABLE>
<CAPTION>
===========================================================================================================
Final Recovery Offering Gross Proceeds
Loan Determination Document Appraisal Appraisal Actual Gross as a % of
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance
===========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
===========================================================================================================
Current Total
===========================================================================================================
Cumulative Total
===========================================================================================================
<CAPTION>
===================================================================================
Aggregate Net Net Proceeds Repurchased
Loan Liquidation Liquidation as a % of Realized by Seller
Number Expenses * Proceeds Actual Balance Loss (Y/N)
===================================================================================
<S> <C> <C> <C> <C>
===================================================================================
Current Total
===================================================================================
Cumulative Total
===================================================================================
</TABLE>
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 17 of 17
<PAGE>
EXHIBIT E-2A
FORM OF CMSA LOAN PERIODIC UPDATE FILE
E-2A-1
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
==================================== ===============================================================================================
Specification Description/Comments
==================================== ===============================================================================================
==================================== ===============================================================================================
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking Factor;
Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
==================================== ===============================================================================================
<CAPTION>
==================================== ================================ =====================================================
Field Format
Field Name Number Type Example Description/Comments
==================================== ================================ =====================================================
==================================== ================================ =====================================================
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Identification Number Assigned To Each
Collateral Item In A Pool
Prospectus Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Sched Balance 6 Numeric 100000.00 Outstanding Scheduled Principal Balance At The
Beginning Of The Current Period
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Scheduled Principal Balance At The End
Of The Current Period
Paid To Date 8 AN YYYYMMDD Due Date Of The Last Interest Payment Received
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final
Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Net Pass-Through Rate 18 Numeric 0.0897 Annualized Interest Rate Applicable To Calculate
The Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc
Of The Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To
Change
==================================== ================================ =====================================================
</TABLE>
E-2A-2
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
==================================== ================================ =====================================================
Field Format
Field Name Number Type Example Description/Comments
==================================== ================================ =====================================================
==================================== ================================ =====================================================
<S> <C> <C> <C>
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current
Period
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal And Interest Payment Due For
The Current Period
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due
For The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During
The Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To
Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Scheduled Gross Interest Applicable To The
Prepayment Amount
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER $ 33 Numeric 1000.00 Excess Of The Principal Balance Over The Defined
Appraisal Percentage
Most Recent ASER Date 34 AN YYYYMMDD Date ASER Amount Applied To Loan
Cumulative ASER $ 35 Numeric 1000.00 Cumulative ASER Amount
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of
The Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End
Of The Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The
Current Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y",
Else "N")
Foreclosure Date 42 AN YYYYMMDD Date Of Foreclosure
REO Date 43 AN YYYYMMDD Date Of REO
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted To
The Tr Per The Tr Doc'n
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted
From The Tr Per The Tr Doc'n
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses 53 Numeric 1000.00 Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI 54 Numeric 1000.00 Preceding Fiscal Year Net Op Income
Preceding Fiscal Year Debt Svc Amt. 55 Numeric 1000.00 Preceding Fiscal Year Debt Svc Amount
Preceding Fiscal Year DSCR 56 Numeric 2.55 Preceding Fiscal Yr Debt Svc Cvrge Ratio
==================================== ================================ =====================================================
</TABLE>
- ----------------------------------
All Financial Update Fields Are
Calculated and/or Presented in The
Manner Described in The Associated
Trust Documention.
- ----------------------------------
E-2A-3
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
==================================== ================================ =====================================================
Field Format
Field Name Number Type Example Description/Comments
==================================== ================================ =====================================================
==================================== ================================ =====================================================
<S> <C> <C> <C> <C>
Preceding Fiscal Yr Physical Occ'y 57 Numeric 0.85 Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date 58 AN YYYYMMDD Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue 59 Numeric 1000.00 Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses 60 Numeric 1000.00 Second Preceding Fiscal Year Expenses
Second Preceding FY NOI 61 Numeric 1000.00 Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service 62 Numeric 1000.00 Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR 63 Numeric 2.55 Second Preceding Fiscal Year Debt Svc Cvrge Ratio
Sec Preceding FY Physical Occ'y 64 Numeric 0.85 Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Fin'l As of Date 65 AN YYYYMMDD Second Preceding Fiscal Year Financial As Of Date
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00 Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00 Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI 68 Numeric 1000.00 Most Recent Fiscal Year To Date Net Operating Income
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00 Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR 70 Numeric 2.55 Most Recent Fiscal Year To Date Debt Service
Coverage Ratio
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85 Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date 74 AN YYYYMMDD The Date Of The Latest Available Appraisal For
The Property
Most Recent Appraisal Value 75 Numeric 100000.00 The Latest Available Appraisal Value For
The Property
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Spec Svc Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Svc Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer
Date Asset Expected to Be Resolved 79 AN YYYYMMDD Date Asset Is Expected To Be Resolved
Year Last Renovated 80 AN 1997 Year Property Last Renovated
==================================== ================================ =====================================================
</TABLE>
- ---------------------------
Most Recent Fiscal YTD
Figures Are From The Last
Financials Processed By The
Servicer Pursuant To The
Terms Of The Trust
Document, And Cover The
Period From The Start Date
To The End Date.
- ---------------------------
<TABLE>
<CAPTION>
New Fields Added:
==================================== ================================ =====================================================
<S> <C> <C> <C> <C>
Cap Rate Assigned 81 Numeric 10 Cap Rate Assigned
FCL Sale Date (Expected or Actual) 82 AN YYYYMMDD FCL Sale Date Expected or Actual
==================================== ================================ =====================================================
</TABLE>
E-2A-4
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
======================================= =========================================================== ==============================
Liquidation/Prepayment Code Status of Mortgage Loan Modification Code
Legend Legend Legend
======================================= =========================================================== ==============================
<S> <C> <S> <C> <S><C>
1 Partial Liq'n (Curtailment) A Payment Not Received But Still In Grace Period 1 Maturity Date Extension
2 Payoff Prior To Maturity B Late Payment But Less Than 1 Month Delinquent 2 Amortization Change
3 Disposition 0 Current 3 Principal Write-Off
4 Repurchase 1 One Month Delinquent 4 Combination
5 Full Payoff At Maturity 2 Two Months Delinquent
6 DPO 3 Three Or More Months Delinquent
7 Liquidation 4 Assumed Sched Payment (Performing Matured Ball'n)
7 Foreclosure
======================================= 9 REO ==============================
==========================================================
<CAPTION>
==========================================================
Workout Strategy Code
Legend
==========================================================
<S> <C>
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
==========================================================
</TABLE>
E-2A-5
<PAGE>
EXHIBIT E-2B
FORM OF CMSA PROPERTY FILE
E-2B-1
<PAGE>
Commercial Mortgage Securities Association
CMSA "Property" File
(Data Record Layout)
============================================= ================================
Field Format
Field Name Number Type Example
============================================= ================================
Transaction Id 1 AN XXX97001
Loan ID 2 AN XXX9701A
Prospectus Loan ID 3 AN 00000000012345
Property ID 4 AN 1001-001
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3)
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN FL
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Securitization 16 Numeric 25000
# Of Units/Beds/Rooms At Securitization 17 Numeric 75
Property Status 18 AN 1
Allocated Percentage of Loan at Securitization 19 Numeric 0.75
Current Allocated Percentage 20 Numeric 0.75
Current Allocated Loan Amount 21 Numeric 5900900
Ground Lease (Y/S/N) 22 AN N
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraisal Value 25 Numeric 1000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD
Foreclosure Date 27 AN YYYYMMDD
============================================= ================================
<TABLE>
<CAPTION>
============================================= ==================================================================== ==========
CSSA
Field Name Description/Comments Loan
============================================= ==================================================================== ==========
<S> <C> <C>
Transaction Id S1,P1
Loan ID S3,P3
Prospectus Loan ID From Offering Document S4,P4
Property ID Should contain Prospectus ID and propety identifier, e.g., 1001-001,
1000-002
Distribution Date P5
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed S75
Property Name S55
Property Address S56
Property City S57
Property State S58
Property Zip Code S59
Property County S60
Property Type Code S61
Year Built S64
Year Last Renovated P80
Net Square Feet At Securitization RT, IN, WH, OF, MU, SS,OT = SF S62
# Of Units/Beds/Rooms At Securitization MF, MHP, LO, HC = Units S63
Property Status 1=FCL, 2=REO, 3=Defeased, 4=Partial Release, 5= Released, 6=
Same as at securitization
Allocated Percentage of Loan at Securitization Issuer to allocate loan % attributable to property for
multi-property loans
Current Allocated Percentage Calculation based on Current Allocated Loan Amount and Current
SPB for associated loan.
Current Allocated Loan Amount Maintained by servicer. P7
Ground Lease (Y/S/N) Either Y=Yes, S=Subordinat, N= No ground lease S74
Other Escrow / Reserve Balances S77
Most Recent Appraisal Date P74
Most Recent Appraisal Value P75
Date Asset is Expected to Be Resolved Could be different dates for different properties if foreclosing P79
Foreclosure Date P42
============================================= ==================================================================== ==========
</TABLE>
E-2B-2
<PAGE>
Commercial Mortgage Securities Association
CMSA "Property" File
(Data Record Layout)
============================================= ================================
Field Format
Field Name Number Type Example
============================================= ================================
REO Date #VALUE! AN YYYYMMDD
Occupancy % #VALUE! Numeric 0.75
Occupancy Date #VALUE! Numeric YYYYMMDD
Date Lease Rollover Review #VALUE! AN YYYYMMDD
% Sq. Feet expiring 1-12 months #VALUE! Numeric 0.20
% Sq. Feet expiring 13-24 months #VALUE! Numeric 0.20
% Sq. Feet expiring 25-36 months #VALUE! Numeric 0.20
% Sq. Feet expiring 37-48 months #VALUE! Numeric 0.20
% Sq. Feet expiring 49-60 months #VALUE! Numeric 0.20
Largest Tenant #VALUE! AN Text
Square Feet of Largest Tenant #VALUE! Numeric 15000
2nd Largest Tenant #VALUE! AN Text
Square Feet of 2nd Largest Tenant #VALUE! Numeric 15000
3rd Largest Tenant #VALUE! AN Text
Square Feet of 3rd Largest Tenant #VALUE! Numeric 15000
Fiscal Year End Month #VALUE! Numeric 12
Securitization Financials As Of Date #VALUE! AN YYYYMMDD
Revenue At Securitization #VALUE! Numeric 1000000
Operating Expenses At Securitization #VALUE! Numeric 1000000
NOI At Securitization #VALUE! Numeric 1000000
DSCR At Securitization #VALUE! Numeric 1.5
Appraisal Value At Securitization #VALUE! Numeric 1000000
Appraisal Date At Securitization #VALUE! AN YYYYMMDD
Physical Occupancy At Securitization #VALUE! Numeric
Date of Last Inspection #VALUE! AN YYYYMMDD
============================================= ================================
<TABLE>
<CAPTION>
============================================= ==================================================================== ==========
CSSA
Field Name Description/Comments Loan
============================================= ==================================================================== ==========
<S> <C> <C>
REO Date P43
Occupancy % Map to "Most Recent Fiscal YTD Phys. Occ." in CSSA P71
Occupancy Date Add a new field to the CSSA Loan file. P71
Date Lease Rollover Review Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months
% Sq. Feet expiring 13-24 months
% Sq. Feet expiring 25-36 months
% Sq. Feet expiring 37-48 months
% Sq. Feet expiring 49-60 months
Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in
the offering document
Square Feet of Largest Tenant
2nd Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in
the offering document
Square Feet of 2nd Largest Tenant
3rd Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in
the offering document
Square Feet of 3rd Largest Tenant
Fiscal Year End Month Needed to indicate month ending for borrower's Fiscal Year
Securitization Financials As Of Date S72
Revenue At Securitization S70
Operating Expenses At Securitization S71
NOI At Securitization S65
DSCR At Securitization S66
Appraisal Value At Securitization S67
Appraisal Date At Securitization S68
Physical Occupancy At Securitization S69
Date of Last Inspection
============================================= ==================================================================== ==========
</TABLE>
E-2B-3
<PAGE>
Commercial Mortgage Securities Association
CMSA "Property" File
(Data Record Layout)
============================================= ================================
Field Format
Field Name Number Type Example
============================================= ================================
Preceding FY Financial As of Date #VALUE! AN YYYYMMDD
Preceding Fiscal Year Revenue #VALUE! Numeric 1,000,000
Preceding Fiscal Year Expenses #VALUE! Numeric 1,000,000
Preceding Fiscal Year NOI #VALUE! Numeric 1,000,000
Preceding Fiscal Year Debt Service Amt. #VALUE! Numeric 1,000,000
Preceding Fiscal Year DSCR #VALUE! Numeric 1.30
Preceding Fiscal Year Physical Occupancy #VALUE! Numeric 0.90
Sec Preceding FY Financial As of Date #VALUE! AN YYYYMMDD
Second Preceding FY Revenue #VALUE! Numeric 1,000,000
Second Preceding FY Expenses #VALUE! Numeric 1,000,000
Second Preceding FY NOI #VALUE! Numeric 1,000,000
Second Preceding FY Debt Service #VALUE! Numeric 1,000,000
Second Preceding FY DSCR #VALUE! Numeric 1.30
Sec Preceding FY Physical Occupancy #VALUE! Numeric 0.90
============================================= ================================
<TABLE>
<CAPTION>
============================================= ==================================================================== ==========
CSSA
Field Name Description/Comments Loan
============================================= ==================================================================== ==========
<S> <C> <C>
Preceding FY Financial As of Date P58
Preceding Fiscal Year Revenue P52
Preceding Fiscal Year Expenses P53
Preceding Fiscal Year NOI P54
Preceding Fiscal Year Debt Service Amt. P55
Preceding Fiscal Year DSCR P56
Preceding Fiscal Year Physical Occupancy P57
Sec Preceding FY Financial As of Date P65
Second Preceding FY Revenue P59
Second Preceding FY Expenses P60
Second Preceding FY NOI P61
Second Preceding FY Debt Service P62
Second Preceding FY DSCR P63
Sec Preceding FY Physical Occupancy P64
============================================= ==================================================================== ==========
</TABLE>
E-2B-4
<PAGE>
Commercial Mortgage Securities Association
CMSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
===================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
===================================================================================================================================
<S> <C>
Transaction Id Same as CSSA Loan File
Loan ID Same as CSSA Loan File
Prospectus Loan ID Same as CSSA Loan File
Property ID
Distribution Date Same as CSSA Loan File
Cross-Collateralized Loan Grouping
Property Name If Multi-Prop, no rollup to CSSA Loan File. Populate S55 with"Various."
Property Address If Multi-Prop, no rollup to CSSA Loan File. Populate S56 with"Various."
Property City If Multi-Prop, and all same then populate S57 with City, otherwise, "Various".
Missing info= "incomplete"
Property State If Multi-Prop, and all same then populate S58 with State, otherwise, "Various".
Missing info= "incomplete"
Property Zip Code If Multi-Prop, and all same then populate S59 with Zip, otherwise, "Various".
Missing info= "incomplete"
Property County If Multi-Prop, and all same then populate S60 with County, otherwise, "Various".
Missing info= "incomplete"
Property Type Code If Multi-Prop and all same then populate S61 with property type otherwise "Various".
Missing Info ="incomplete"
Year Built If Multi-Prop, and all same then populate S64 with year otherwise, "000000".
Year Last Renovated If Multi-Prop, and all same then populate P80 with year otherwise, "000000".
Net Square Feet At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
# Of Units/Beds/Rooms At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
Property Status If multi-prop and all same than populate CSSA Loan file with property, status,
otherwise various.
Allocated Percentage of Loan at Securitization No field needed in Cssa Loan file
Current Allocated Percentage No field needed in Cssa Loan file
Current Allocated Loan Amount Roll-up to Current Ending SPB (P7)
Ground Lease (Y/S/N) If any property is Y, or S then S74=Y
Other Escrow / Reserve Balances If any property populated, then S77=Y
Most Recent Appraisal Date If Multi-Prop, and all same then populate P74 with date, otherwise, "000000".
Most Recent Appraisal Value Roll-up to CSSA Loan File if populated. If missing any appraisal value, than
populate P75 with "000000)
Date Asset is Expected to Be Resolved If Multi-Prop, latest date from affiliated properties for P79.
Foreclosure Date If Multi-Prop, and all same then populate P42 with date, otherwise, "000000".
===================================================================================================================================
</TABLE>
E-2B-5
<PAGE>
Commercial Mortgage Securities Association
CMSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
===================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
===================================================================================================================================
<S> <C>
REO Date If Multi-Prop, and all same then populate P43 with date, otherwise, "000000".
Occupancy % [Weighted Average] For P71=Sum((Curr. Allocated % Prop A) *(Occupancy Prop A)...
(Curr. Allocated % Prop Z) * (Occupancy Prop Z)).
If missing one, then, "00000"
Occupancy Date If Multi-Prop, and all same then populate with date, otherwise, "various+K62".
Date Lease Rollover Review No Roll up to the CSSA loan format.
% Sq. Feet expiring 1-12 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 13-24 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 25-36 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 37-48 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 49-60 months No Roll up to the CSSA loan format.
Largest Tenant No Roll up to the CSSA loan format.
Square Feet of Largest Tenant No Roll up to the CSSA loan format.
2nd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 2nd Largest Tenant No Roll up to the CSSA loan format.
3rd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 3rd Largest Tenant No Roll up to the CSSA loan format.
Fiscal Year End Month No Roll up to the CSSA loan format.
Securitization Financials As Of Date If Multi-Prop, and all same then populate S72 with date, otherwise, "000000".
Revenue At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Operating Expenses At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S71 with "0000"
NOI At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S85 with "0000"
DSCR At Securitization [Weighted Average] S66=Sum((Allocated % at Sec. Prop A) *(DSCR Prop A)...
((Allocated % at Sec. Prop Z) * (DSCR Prop Z). If missing one, "00000"
Appraisal Value At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Appraisal Date At Securitization If Multi-Prop, and all same then populate S68 with date, otherwise, "000000".
Physical Occupancy At Securitization Weighted Average
Date of Last Inspection
===================================================================================================================================
</TABLE>
E-2B-6
<PAGE>
Commercial Mortgage Securities Association
CMSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
===================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
===================================================================================================================================
<S> <C>
Preceding FY Financial As of Date If Multi-Prop, and all same then populate P58 with date, otherwise,
"000000+K23K46".K1
Preceding Fiscal Year Revenue No Roll up to the CSSA loan format.
Preceding Fiscal Year Expenses No Roll up to the CSSA loan format.
Preceding Fiscal Year NOI No Roll up to the CSSA loan format.
Preceding Fiscal Year Debt Service Amt. No Roll up to the CSSA loan format.
Preceding Fiscal Year DSCR No Roll up to the CSSA loan format.
Preceding Fiscal Year Physical Occupancy No Roll up to the CSSA loan format.
Sec Preceding FY Financial As of Date No Roll up to the CSSA loan format.
Second Preceding FY Revenue No Roll up to the CSSA loan format.
Second Preceding FY Expenses No Roll up to the CSSA loan format.
Second Preceding FY NOI No Roll up to the CSSA loan format.
Second Preceding FY Debt Service No Roll up to the CSSA loan format.
Second Preceding FY DSCR No Roll up to the CSSA loan format.
Sec Preceding FY Physical Occupancy No Roll up to the CSSA loan format.
===================================================================================================================================
</TABLE>
E-2B-7
<PAGE>
EXHIBIT E-2C
FORM OF CMSA LOAN SET-UP FILE
E-2B-8
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
============================================ ======================================================================================
Specification Description/Comments
============================================ ======================================================================================
============================================ ======================================================================================
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
============================================ ======================================================================================
<CAPTION>
============================================ =================================== =================================================
Field Format
Field Name Number Type Example Description/Comments
============================================ =================================== =================================================
============================================ =================================== =================================================
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To
Each Loan Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Indentification Number Assigned To
Each Collateral Item In A Pool
Offering Document Loan Id 4 AN 123 Unique Indentification Number Assigned To
Each Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of
The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity
Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized
Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is
Permitted To Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,
4=Actual/Actual, 5=Actual/366,
6=Simple, 7=78'S
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Without Yield Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Without Penalty
============================================ =================================== =================================================
</TABLE>
Page 1 of 4
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
============================================ =================================== =================================================
Field Format
Field Name Number Type Example Description/Comments
============================================ =================================== =================================================
============================================ =================================== =================================================
<S> <C> <C> <C> <C>
Prepayment Terms Description 21 AN Text Description Of Prepayment Terms (Not To
Exceed 50 Characters)
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The
Determination Of The Gross
Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay
On An Arm Loan Per The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay
On An Arm Loan Per The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note
Rate Allowed Per The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Increase To The Note
Rate Allowed Per The Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Maximum Periodic % Increase To The
Borrowers P&I Payment Allowed Per The
Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Maximum Periodic Dollar Increase To The
Borrowers P&I Payment Allowed Per The
Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
Rate Reset Frequency In Months 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
Pay Reset Frequency In Months 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus
Margin (See Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To
Adjustment Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Maximum Lifetime Percentage Increase To
The Original Balance Allowed Per The
Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Maximum Lifetime Dollar Increase To
The Original Balance Allowed Per The
Loan Agreement
Remaining Term At Securitization 41 Numeric 240 Remaining Number Of Months Until
Maturity Of Loan At Cutoff
Remaining Amor-Tm At Securitiz'n 42 Numeric 360 Remaining Number Of Months Loan
Amortized Over At Cutoff
Maturity Date At Securitization 43 AN YYYYMMDD The Scheduled Maturity Date Of The
Mortgage Loan At Securitization
Sched Prin Bal At Securitization 44 Numeric 1000000.00 The Scheduled Principal Balance Of The
Mortgage Loan At Securitization
Note Rate At Securitization 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate
Applicable To The Calculation Of
Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The
Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine Net Pass-Through Rate
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine Net Pass-Through Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine Net Pass-Through Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To Determine
Net Pass-Through Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine Net Pass-Through Rate
Net Rate At Securitization 52 Numeric 0.0947 Cutoff Annualized Interest Rate
Applicable To The Calculation Of
Remittance Interest
Periodic P&I Payment At Securitiz'n 53 Numeric 3000.00 The Periodic Scheduled Principal &
Interest Payment
============================================ =================================== =================================================
</TABLE>
Page 2 of 4
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
============================================ =================================== =================================================
Field Format
Field Name Number Type Example Description/Comments
============================================ =================================== =================================================
============================================ =================================== =================================================
<S> <C> <C> <C> <C>
# Of Properties 54 Numeric 13 The Number Of Properties Underlying The
Mortgage Loan
Property Name 55 AN Text If Number Of Properties Is Greater Than
1 Then "Various"
Property Address 56 AN Text If Number Of Properties Is Greater Than
1 Then "Various"
Property City 57 AN Text If Number Of Properties Is Greater Than
1 Then "Various"
Property State 58 AN Text If Number Of Properties Is Greater Than
1 Then "Various"
Property Zip Code 59 AN Text If Number Of Properties Is Greater Than
1 Then "Various"
Property County 60 AN Text If Number Of Properties Is Greater Than
1 Then "Various"
Property Type Code 61 AN MF If Number Of Properties Is Greater Than
1 Then "Various" (See Property Type
Code Legend)
Net Square Feet At Securitization 62 Numeric 25000 If Number Of Properties Is Greater Than
1 Then "000000"
# Of Units/Beds/Rms At Securitiz'n 63 Numeric 75 If Number Of Properties Is Greater Than
1 Then "000000"
Year Built 64 AN 1990 If Number Of Properties Is Greater Than
1 Then "000000"
NOI At Securitization 65 Numeric 100000.00 Net Operating Income At Securitization
DSCR At Securitization 66 Numeric 2.11 DSCR At Securitization
Appraisal Value At Securitization 67 Numeric 1000000.00 Appraisal Value At Securitization
Appraisal Date At Securitization 68 AN YYYYMMDD Appraisal Date At Securitization
Physical Occupancy At Securitization 69 Numeric 0.88 Physical Occupancy At Securitization
Revenue At Securitization 70 Numeric 100000.00 Revenue At Securitization
Operating Expenses At Securitization 71 Numeric 100000.00 Expenses At Securitization
Securitization Financials As Of Date 72 AN YYYYMMDD Securitization Financials As Of Date
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/N) 74 AN Y Y=Yes, N=No
Cross-Collateralized Loan Grouping 75 Numeric 9(3) All Loans With The Same Numeric Value Are
Crossed
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No
Lien Position At Securitization 78 Numeric 1 1=First, 2=Second...
============================================ =================================== =================================================
</TABLE>
Page 3 of 4
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
======================================== ========================================== =========================================
Payment Type Code ARM Index Code Rounding Code
Legend Legend Legend
======================================== ========================================== =========================================
<S> <C> <S> <C> <S> <C>
1 Fully Amortizing A 11 FHLB COFI (1 Month) 1 Unrounded
2 Amortizing Balloon B 11 FHLB COFI (6 Month) 2 Nearest Percentage Increment
3 Interest Only / Balloon C 1 Year CMT Weekly Average Treasury 3 Up To Nearest Percentage Increment
4 Interest Only / Amortizing D 3 Year CMT Weekly Average Treasury 4 Down To Nearest Percentage Increment
5 Interest Only / Amortizing / Balloon E 5 Year CMT Weekly Average Treasury
6 Principal Only F Wall Street Journal Prime Rate
9 Other G 1 Month LIBOR
H 3 Month LIBOR
======================================== I 6 Month LIBOR =========================================
J National Mortgage Index Rate
All Others Use Short Text Description
==========================================
<CAPTION>
==========================================
Property Types Code
Legend
==========================================
<S> <C>
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
==========================================
</TABLE>
Page 4 of 4
<PAGE>
EXHIBIT E-3
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
E-3-1
<PAGE>
Comparative Financial Status Report
as of
<TABLE>
<CAPTION>
-----------------------------------------------
Original Underwriting Information
Basis Year
- ------------------------------------------------------------------------------------
Last
Property Paid Annual Financial
Prospectus Inspection Scheduled Thru Debt Info as of % Total
ID Name City State Date Loan Balance Date Service Date Occupied Revenue
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total:
===================================================================================================================================
<CAPTION>
-----------------------------------------------------------------------------------------------------------------
2nd Preceding Annual Operating Information Preceding Annual Operating Information
as of Normalized as of Normalized
- -------------
Financial Financial
Prospectus $ Info as of % Total $ Info as of % Total $
ID NOI DSCR Date Occupied Revenue NOI DSCR Date Occupied Revenue NOI DSCR
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total:
==============================================================================================================================
<CAPTION>
-----------------------------------------------------------------------------
Trailing Financial or YTD Information Net Change
Actual Preceding & Basis
- ------------
%
Prospectus FS Start FS End Total $ % Total
ID Date Date Revenue NOI DSCR Occupied Revenue DSCR
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Total:
=========================================================================================
</TABLE>
E-3-2
<PAGE>
EXHIBIT E-4
FORM OF DELINQUENT LOAN STATUS REPORT
E-4-1
<PAGE>
Delinquent Loan Status Report
as of
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Other
Scheduled Total P&I Total Advances Current
Property Sq. Ft. or Paid Thru Loan Advances to Expenses (Taxes & Total Monthly
Prospectus ID Name Type City State Units Date Balance Date To Date Escrow) Exposure P&I
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Value Appraisal Total
LTM LTM Cap Rate using NOI BPO or Loss using Appraisal
Maturity NOI NOI/ Assign Valuation & Cap Internal 92% Appr. Estimated Reduction Transfer
Prospectus ID Date Date DSC *** Date Rate Value** or BPO Recovery % Realized Date
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- -----------------------------------------------------
REO Pending
Acquisition Resolution
Prospectus ID Date Date Comments
- -----------------------------------------------------
<S> <C> <C> <C>
</TABLE>
App. - Appraisal, BPO - Brokers Opinion, Int - Internal
*** How to determine the cap rate is agreed upon by Underwriting and servicers -
to be provided by third party.
E-4-2
<PAGE>
EXHIBIT E-5
FORM OF HISTORICAL LOAN MODIFICATION REPORT
E-5-1
<PAGE>
Historical Loan Modification Report
as of
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Balance
MOD/ When Sent Balance at the # Mths
Prospectus Extension Effect to Special Effective Date of for Rate New
ID City State Flag Date Servicer Rehabilitation Old Rate Change Rate Old P&I New P&I
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- -------------------------------------------------------------------------------------
Total # (2) Est.
Mths for (1) Realized Future
Prospectus Old New Change of Loss to Interest Loss
ID Maturity Maturity MOD Trust to Trust Comment
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
- --------------------------------------------------------------------------------
Total For All Loans:
Total For Loans in Current Month:
# of Loans $ Balance
Modifications: 0 $0.00
Maturity Date Extensions: 0 $0.00
------------------------------------------
Total: 0 $0.00
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate at
the time of the modification.
- --------------------------------------------------------------------------------
E-5-2
<PAGE>
EXHIBIT E-6
FORM OF HISTORICAL LOSS ESTIMATE REPORT
E-6-1
<PAGE>
Historical Loss Estimate Report (REO - sold or Disc. Payoff)
as of
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Last
% Appraisal or Effect Net Amt
Prospectus Property Received Brokers Date of Received Scheduled Total P&I
ID Name Type City State From Sale Opinion Sale Sales Price from Sale Balance Advanced
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Date Loss Minor Adj Loss % of
Prospectus Total Servicing Fees Actual Losses Passed Minor Adj to Passed Total Loss with Scheduled
ID Expenses Expenses Net Proceeds Passed Thru Thru Trust Thru Adjustments Balance
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
=================================
Total all Loans: $0.00
Current Month Only: $0.00
=================================
E-6-2
<PAGE>
EXHIBIT E-7
FORM OF NOI ADJUSTMENT WORKSHEET
E-7-1
<PAGE>
NOI ADJUSTMENT WORKSHEET for "1998"
<TABLE>
<S> <C> <C> <C>
PROPERTY OVERVIEW
-----------------
Prospectus Number
-----------------
GE Loan Number
---------------------------------------------------------------------------------------------------
Asset Name
---------------------------------------------------------------------------------------------------
Property Type:
---------------------------------------------------------------------------------------------------
Property Address:
---------------------------------------------------------------------------------------------------
#REF!
---------------------------------
Year Built/ Year Renovated:
------------------------------------------------------------------------------------
Borrower Adjustment Normalized
------------------------------------------------------------------------------------
Occupancy Rate *
------------------------------------------------------------------------------------
Average Rental Income
------------------------------------------------------------------------------------
* Occupancy rates are year end or the ending date of the financial statement for
the period.
INCOME:
Number of Months Annualized 1998
------------------------------------------------------------------------------------
Borrower
Actual Adjustment Normalized
------------------------------------------------------------------------------------
Rental Income $0 $0 $0
------------------------------------------------------------------------------------
Percentage Rents $0 $0 $0
------------------------------------------------------------------------------------
Expense Recoveries $0 $0 $0
------------------------------------------------------------------------------------
Other Income $0 $0 $0
------------------------------------------------------------------------------------
Less: Vacancies $0 $0 $0
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Effective Gross Income $0 $0 $0
------------------------------------------------------------------------------------
Normalized - Full year financial statements that
have been reviewed by the underwriter or the
Servicer
** Servicer will not be expected to "Normalize"
these YTD numbers
OPERATING EXPENSES:
------------------------------------------------------------------------------------
Real Estate Taxes $0 $0 $0
------------------------------------------------------------------------------------
Property Insurance $0 $0 $0
------------------------------------------------------------------------------------
Utilities $0 $0 $0
------------------------------------------------------------------------------------
General & Administration $0 $0 $0
------------------------------------------------------------------------------------
Repairs and Maintenance $0 $0 $0
------------------------------------------------------------------------------------
Management Fees $0 $0 $0
------------------------------------------------------------------------------------
Payroll & Benefits Expense $0 $0 $0
------------------------------------------------------------------------------------
Advertising & Marketing $0 $0 $0
------------------------------------------------------------------------------------
Professional Fees $0 $0 $0
------------------------------------------------------------------------------------
Other Expenses $0 $0 $0
------------------------------------------------------------------------------------
Ground Rent $0 $0 $0
------------------------------------------------------------------------------------
Total Operating Expenses $0 $0 $0
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Operating Expense Ratio
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Net Operating Income $0 $0 $0
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Leasing Commissions $0 $0 $0
------------------------------------------------------------------------------------
Tenant Improvements $0 $0 $0
------------------------------------------------------------------------------------
Replacement Reserve $0 $0 $0
------------------------------------------------------------------------------------
Total Capital Items $0 $0 $0
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
N.O.I. After Capital Items $0 $0 $0
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Debt Service (per Servicer) $0 $0 $0
------------------------------------------------------------------------------------
Cash Flow after Debt Service $0 $0 $0
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
DSCR: (NOI/Debt Service)
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
DSCR: (after Reserves\Capital
EXP.)
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Source of Financial Data:
------------------------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
</TABLE>
Notes and Assumptions:
================================================================================
This report should be completed by the Servicer for any "Normalization" of the
Borrower's numbers
Income:
E-7-2
<PAGE>
EXHIBIT E-8
FORM OF OPERATING STATEMENT ANALYSIS REPORT
E-8-1
<PAGE>
OPERATING STATEMENT ANALYSIS
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
--------------------------------------------
Prospectus Number
--------------------------------------------
GE Loan Number
---------------------------------------------------------------------------------------------------
Property Name
---------------------------------------------------------------------------------------------------
Property Type:
---------------------------------------------------------------------------------------------------
Property Address, City, State:
-------------------------------------------
Net Rentable Square Feet or
# of Units:
----------------------------------------------------------
Year Built/ Year Renovated:
---------------------------------------------------------------------------------------------------
Year of Operations Underwriting 1998
---------------------------------------------------------------------------------------------------
Occupancy Rate *
---------------------------------------------------------------------------------------------------
Average Rental Income
---------------------------------------------------------------------------------------------------
* Occupancy rates are year end or the ending
date of the financial statement for the period.
INCOME:
Number of Months 3rd Prior Year 2nd Prior Year Prior Year Current Year
---------------------------------------------------------------------------------------------------
Period Ended Underwriting 1998
Statement Classification Base Line Normalized Normalized Normalized Normalized
---------------------------------------------------------------------------------------------------
Rental Income $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Percentage Rents $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Expense Recoveries $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Other Income $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Less: Vacancies $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Effective Gross Income $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Normalized - Full year financial statements that have
been reviewed by the underwriter or the Servicer
** Servicer will not be expected to "Normalize"
these YTD numbers
OPERATING EXPENSES:
---------------------------------------------------------------------------------------------------
Real Estate Taxes $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Property Insurance $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Utilities $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
General & Administation $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Repairs and Maintenance $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Management Fees $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Payroll & Benefits Expense $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Advertising & Marketing $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Professional Fees $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Other Expenses $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Ground Rent $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Total Operating Expenses $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Operating Expense Ratio
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Net Operating Income $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Leasing Commissions $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Tenant Improvements $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Replacement Reserve $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Total Capital Items $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
N.O.I. After Capital Items $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Debt Service (per Servicer) $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
Cash Flow after Debt Service $0 $0 $0 $0 $0
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
DSCR: (NOI/Debt Service)
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
DSCR: (after Reserves\
Capital EXP.)
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Source of Financial Data:
---------------------------------------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
<CAPTION>
<S> <C>
PROPERTY OVERVIEW
Prospectus Number
GE Loan Number
---------------
Property Name
---------------
Property Type:
---------------
Property Address, City, State:
Net Rentable Square Feet or
# of Units:
Year Built/ Year Renovated:
---------------
Year of Operations YTD
---------------
Occupancy Rate *
---------------
Average Rental Income
---------------
INCOME: No. of Mos.
---------------
Number of Months 0
---------------
Period Ended
---------------
Statement Classification
---------------
Rental Income $0
---------------
Percentage Rents $0
---------------
Expense Recoveries $0
---------------
Other Income $0
---------------
Less: Vacancies $0
---------------
---------------
Effective Gross Income $0
---------------
OPERATING EXPENSES:
---------------
Real Estate Taxes $0
---------------
Property Insurance $0
---------------
Utilities $0
---------------
General & Administation $0
---------------
Repairs and Maintenance $0
---------------
Management Fees $0
---------------
Payroll & Benefits Expense $0
---------------
Advertising & Marketing $0
---------------
Professional Fees $0
---------------
Other Expenses $0
---------------
Ground Rent $0
---------------
Total Operating Expenses $0
---------------
---------------
Operating Expense Ratio
---------------
---------------
Net Operating Income $0
---------------
---------------
Leasing Commissions $0
---------------
Tenant Improvements $0
---------------
Replacement Reserve $0
---------------
Total Capital Items $0
---------------
---------------
N.O.I. After Capital Items $0
---------------
---------------
Debt Service (per Servicer) $0
---------------
Cash Flow after Debt Service $0
---------------
---------------
DSCR: (NOI/Debt Service)
---------------
---------------
DSCR: (after Reserves\
Capital EXP.)
---------------
---------------
Source of Financial Data:
---------------
</TABLE>
Notes and Assumptions:
================================================================================
The years shown above will roll always showing a three year history.
@ Base line operating information is YTD as of:
Income:
Expense:
Capital Items:
E-8-2
<PAGE>
EXHIBIT E-9
FORM OF REO STATUS REPORT
E-9-1
<PAGE>
REO Status Report
as of
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Other
Scheduled Total P&I Total Advances
Property Sq. Ft. or Paid Thru Loan Advances to Expenses (Taxes &
Prospectus ID Name Type City State Units Date Balance Date To Date Escrow)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Value Appraisal
Current LTM LTM Cap Rate using NOI BPO or Loss using
Total Monthly Maturity NOI NOI/ Assign Valuation & Cap Internal 92% Appr.
Prospectus ID Exposure P&I Date Date DSC *** Date Rate Value** or BPO
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Total
Appraisal REO Pending
Estimated Reduction Transfer Acquisition Resolution
Prospectus ID Recovery % Realized Date Date Date Comments
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
App. - Appraisal, BPO - Brokers Opinion, Int - Internal
*** How to determine the cap rate is agreed upon by Underwriting and servicers
- to be provided by third party.
E-9-2
<PAGE>
EXHIBIT E-10
FORM OF WATCH LIST
E-10-1
<PAGE>
Servicer Watch List Report
as of
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Paid
Property Scheduled Thru Maturity
Prospectus ID Name Type City State Loan Balance Date Date LTM* DSCR Comment/Reason on Watch List
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total
</TABLE>
* LTM - Last 12 months either trailing or last annual.
E-10-2
<PAGE>
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG3, Class ______ Certificates [having an
initial aggregate Certificate Principal Balance as of October 12, 1999
(the "Closing Date") of $__________] [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates") pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of October 1, 1999, among DLJ Commercial Mortgage Corp.,
as Depositor, GE Capital Loan Services, Inc. as Master Servicer, GMAC Commercial
Mortgage Corporation, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses
F-1A-1
<PAGE>
(a) through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "Securities
Act"), or would render the disposition of the Transferred Certificates a
violation of Section 5 of the Securities Act or any state securities laws, or
would require registration or qualification of the Transferred Certificates
pursuant to the Securities Act or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor
in this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act (a "Qualified Institutional Buyer") purchasing for its own
account or for the account of another person that is itself a Qualified
Institutional Buyer. In determining whether the Transferee is a Qualified
Institutional Buyer, the Transferor and any person acting on behalf of the
Transferor in this matter has relied upon the following method(s) of
establishing the Transferee's ownership and discretionary investments of
securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser; or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange
Commission or another United States federal, state, or local
governmental agency or self-regulatory organization, or with a
foreign governmental agency or self-regulatory organization, which
information is as of a date within 16 months preceding the date of
sale of the Transferred Certificates in the case of a U.S. purchaser
and within 18 months preceding such date of sale in the case of a
foreign purchaser; or
___ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the
Transferee, specifying the amount of securities owned and invested
on a discretionary basis by the Transferee as of a specific date on
or since the close of the Transferee's most recent fiscal year, or,
in the case of a Transferee that is a member of a "family of
investment companies", as that term is defined in Rule 144A, a
certification by an executive officer of the investment adviser
specifying the amount of securities owned by the "family of
investment companies" as of a specific date on or since the close of
the Transferee's most recent fiscal year.
F-1A-2
<PAGE>
___ (e) Other. (Please specify brief description of method)_____________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
___________________________________________________________________.
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded: securities
of issuers that are affiliated with such entity; securities that are part
of an unsold allotment to or subscription by such entity, if such entity
is a dealer; securities of issuers that are part of such entity's "family
of investment companies", if such entity is a registered investment
company; bank deposit notes and certificates of deposit; loan
participations; repurchase agreements; securities owned but subject to a
repurchase agreement; and currency, interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities may be valued at market; and
(c) securities owned by subsidiaries of the entity that are consolidated
with the entity in its financial statements prepared in accordance with
generally accepted accounting principles may be included if the
investments of such subsidiaries are managed under the direction of the
entity, except that, unless the entity is a reporting company under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
securities owned by such subsidiaries may not be included if the entity
itself is a majority-owned subsidiary that would be included in the
consolidated financial statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor is
relying on the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A.
F-1A-3
<PAGE>
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement, and (e) all related matters, that the Transferee has
requested.
Very truly yours,
________________________________________
(Transferor)
By: ____________________________________
Name: __________________________________
Title: _________________________________
F-1A-4
<PAGE>
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG3, Class ______ Certificates [having an
initial aggregate Certificate Principal Balance as of October 12, 1999
(the "Closing Date") of $__________] [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates, (the "Transferred Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of October 1, 1999, among DLJ Commercial Mortgage Corp.,
as Depositor, GE Capital Loan Services, Inc., as Master Servicer, GMAC
Commercial Mortgage Corporation, as Special Servicer, and Norwest Bank
Minnesota, National Association, as Trustee. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any
F-1B-1
<PAGE>
interest in a Transferred Certificate or any other similar security by means of
general advertising or in any other manner, or (e) taken any other action with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a distribution of
the Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities laws, or
would require registration or qualification of the Transferred Certificates
pursuant to the Securities Act or any state securities laws.
Very truly yours,
________________________________________
(Transferor)
By: ____________________________________
Name: __________________________________
Title: _________________________________
F-1B-2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG3, Class ______ Certificates [having an
initial aggregate Certificate Principal Balance as of October 12, 1999
(the "Closing Date") of $__________] [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates") pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of October 1, 1999, among DLJ Commercial Mortgage Corp.,
as Depositor, GE Capital Loan Services, Inc., as Master Servicer, GMAC
Commercial Mortgage Corporation, as Special Servicer, and Norwest Bank
Minnesota, National Association, as Trustee. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in reliance
on Rule 144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
F-2A-1
<PAGE>
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the nature, performance and servicing of the Mortgage Loans, (d) the Pooling
and Servicing Agreement and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
________________________________________
(Transferor)
By: ____________________________________
Name: __________________________________
Title: _________________________________
F-2A-2
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
________________________________________
(Nominee)
By: ____________________________________
Name: ______________________________
Title: _____________________________
F-2A-1
<PAGE>
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates being
transferred (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) the Transferee [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ 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
- ----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2A-2
<PAGE>
an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is attached
hereto, as of a date not more than 16 months preceding the date of
sale of the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months preceding such
date of sale in the case of a foreign savings and loan association
or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee did
not include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee
used the cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have
F-2A-3
<PAGE>
included securities owned by subsidiaries of such Person, but only if such
subsidiaries are consolidated with such Person in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under such Person's direction.
However, such securities were not included if such Person is a majority-owned,
consolidated subsidiary of another enterprise and such Person is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
________________________________________
Print Name of Transferee
By: ____________________________________
Name: __________________________________
Title: _________________________________
Date: __________________________________
F-2A-4
<PAGE>
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with Rule
144A).
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).
F-2A-5
<PAGE>
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
F-2A-6
<PAGE>
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
________________________________________
Print Name of Transferee or Adviser
By: ____________________________________
Name:
Title:
IF AN ADVISER:
________________________________________
Print Name of Transferee
Date: __________________________________
F-2A-7
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG3, Class ___ Certificates [having an initial
aggregate Certificate Principal Balance as of October 12, 1999 (the
"Closing Date") of $__________] [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates") pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of October 1, 1999, among DLJ
Commercial Mortgage Corp., as Depositor, GE Capital Loan Services, Inc., as
Master Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer, and
Norwest Bank Minnesota, National Association, as Trustee. All capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates, and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received (A) a certificate from
the prospective transferor substantially in the form attached as Exhibit F-1A to
the Pooling and Servicing
F-2B-1
<PAGE>
Agreement; (B) a certificate from the prospective transferor substantially in
the form attached as Exhibit F-1B to the Pooling and Servicing Agreement and a
certificate from the prospective transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Pooling and Servicing
Agreement; or (C) an Opinion of Counsel satisfactory to the Certificate
Registrar that the transfer may be made without registration under the
Securities Act, together with the written certification(s) as to the facts
surrounding the transfer from the prospective transferor and/or prospective
transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION
AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY
OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS
CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO
(1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER") OR (2) AN
ACCREDITED INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2), (3) OR (7)
OF RULE 501(a) OF REGULATION D UNDER THE SECURITIES ACT OR AN ENTITY IN
WHICH ALL THE EQUITY OWNERS CONSTITUTE ENTITIES DESCRIBED IN SUCH
PARAGRAPHS.
F-2B-2
<PAGE>
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
the Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Transferred Certificates,
any interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto and (e) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
________________________________________
(Transferee)
By: ____________________________________
Name: __________________________________
Title: _________________________________
Date: __________________________________
F-2B-3
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
________________________________________
(Nominee)
By: ____________________________________
Name: ______________________________
Title: _____________________________
F-2B-4
<PAGE>
EXHIBIT G
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(DEFINITIVE SUBORDINATED CERTIFICATES)
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 1999- CG3, Class ______ Certificates [having an
initial Certificate Principal Balance as of October 12, 1999 (the "Closing
Date") of $________] [evidencing a _____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 1999, among DLJ Commercial Mortgage Corp., as Depositor, GE Capital Loan
Services, Inc., as Master Servicer, GMAC Commercial Mortgage Corporation, as
Special Servicer, and Norwest Bank Minnesota, National Association, as Trustee.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as Certificate
Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee benefit
plan or arrangement, including an individual retirement account or
annuity, a Keogh plan or a collective investment fund or separate account
in which such plans, accounts or arrangements are invested, including an
insurance company general account, that is subject to ERISA or Section
4975 of the Code (each, a "Plan"), nor (B) a Person who is directly or
indirectly purchasing the Transferred Certificates on ---- behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or
___ The Transferee is using funds from an insurance company general account to
acquire the Transferred Certificates, however, the purchase and holding of
such Certificates by such Person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under
Sections I and III of Prohibited Transaction Class Exemption 95-60.
Very truly yours,
G-1
<PAGE>
________________________________________
(Transferee)
By: ____________________________________
Name:
Title:
G-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF RESIDUAL INTEREST CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999-CG3, Class [R-I]
[R-II] [R-III], evidencing a __% Percentage Interest in such Class (the
"Residual Interest Certificates")), a _________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
Permitted Transferee and will endeavor to remain a Permitted Transferee for so
long as it holds the Residual Interest Certificates, and (ii) is acquiring the
Residual Interest Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "Disqualified Organization" or a "non-United States Person", but in
addition, if such Person is classified as a partnership under the Code, such
Person can only be a "Permitted Transferee" if all of its beneficial owners are
United States Persons. For this purpose, a "Disqualified Organization" means the
United States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income. A "non-United States Person" is any Person other than a "United
States Person". A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States or a
trust as to which (i) a court in the United States is able to exercise primary
supervision over the administration of the trust and (ii) one or more United
States fiduciaries have the right to control all substantial decisions of the
trust or, to the extent provided in the Treasury regulations, a trust if it was
in existence on August 20, 1996 and if elected to be treated as a United States
Person).
H-1-1
<PAGE>
3. The Transferee is aware (i) of the tax that would be imposed
under the Code on transfers of the Residual Interest Certificates to
non-Permitted Transferees; (ii) that such tax would be on the transferor or, if
such transfer is through an agent (which Person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Interest Certificates may be a "noneconomic residual interest" within the
meaning of Treasury regulation Section 1.860E-1(c) and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer is to enable the transferor to impede the assessment or collection of
tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Interest Certificates if at any time during the
taxable year of the pass-through entity a non-Permitted Transferee is the record
holder of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Interest Certificates by the Transferee
unless the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false. In addition, the Transferee is aware the Certificate Registrar will not
register any transfer of the Residual Interest Certificates to an entity
classified as a partnership under the Code unless at the time of transfer, all
of the beneficial owners of such entity are "United States Persons".
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Interest Certificates will
only be owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Interest Certificates (in particular, clause (ii)(A) of
Section 5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificates to a Person other than the Transferee and clause (ii)(B)
of Section 5.02(d) which authorizes the Trustee to negotiate a mandatory sale of
the Residual Interest Certificates, in either case, in the event that the
Transferee holds such Residual Interest Certificates in violation of Section
5.02(d)); and the Transferee expressly agrees to be bound by and to comply with
such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Interest Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Interest Certificates as they become
H-1-2
<PAGE>
due, fully understanding that it may incur tax liabilities in excess of any cash
flows generated by the Residual Interest Certificates.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Interest Certificates, deliver to the Certificate
Registrar a representation letter substantially in the form of Exhibit H-2 to
the Pooling and Servicing Agreement in which it will represent and warrant,
among other things, that it is not transferring the Residual Interest
Certificates to impede the assessment or collection of any tax and that it has
at the time of such transfer conducted a reasonable investigation of the
financial condition of the proposed Transferee (or its current beneficial owners
if such Transferee is classified as a partnership under the Code) as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied
the requirements of such provision.
H-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ______ day of ______________.
[NAME OF TRANSFEREE]
By: ____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named ____________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ____________________ of the Transferee, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Transferee
Subscribed and sworn before me this ______ day of
__________________, ________.
________________________________________
NOTARY PUBLIC
COUNTY OF _____________
STATE OF _____________
My Commission expires the _________
day of ___________, 19__.
H-1-4
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
RESIDUAL INTEREST CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG3, Class [R-I] [R-II] [R-III] Certificates,
evidencing a ____% Percentage Interest in such Class (the "Residual
Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Residual Interest Certificates, pursuant to the Pooling and Servicing
Agreement, dated as of October 1, 1999 (the "Pooling and Servicing Agreement"),
among DLJ Commercial Mortgage Corp., as Depositor, GE Capital Loan Services,
Inc., as Master Servicer, GMAC Commercial Mortgage Corporation, as Special
Servicer, and Norwest Bank Minnesota, National Association, as Trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Interest Certificates by the Transferor to the Transferee is or will be
to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
H-2-1
<PAGE>
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or the
beneficial owners of the Transferee if the Transferee is classified as a
partnership under the Code) as contemplated by Treasury regulation Section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has
determined that the Transferee has historically paid its debts as they became
due and has found no significant evidence to indicate that the Transferee will
not continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may not be
respected for United States income tax purposes (and the Transferor may continue
to be liable for United States income taxes associated therewith) unless the
Transferor has conducted such an investigation.
Very truly yours,
________________________________________
(Transferor)
By: ____________________________________
Name: __________________________________
Title: _________________________________
H-2-2
<PAGE>
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Commercial MBS Monitoring Department
[Facsimile No. (212) 553-0300]
Fitch IBCA, Inc.
One State Street Plaza--31st Floor
New York, NY 10004
Attention: __________________
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of the
Pooling and Servicing Agreement, dated as of October 1, 1999, and relating to
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-CG3 (the "Agreement"). Capitalized terms used but not otherwise
defined herein shall have respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
__________________ to serve as the Special Servicer under the Agreement.
The designation of ____________________ as Special Servicer will
become final if certain conditions are met and each Rating Agency delivers to
Norwest Bank Minnesota, National Association, the trustee under the Agreement
(the "Trustee"), written confirmation that if the person designated to become
the Special Servicer were to serve as such, such event would not result in the
qualification, downgrade or withdrawal of the rating or ratings assigned to one
or more Classes of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
I-1-1
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By: ____________________________________
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By: ___________________________
Name:
Title:
Date:
FITCH IBCA, INC.
By: ___________________________
Name:
Title:
Date:
I-1-2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[SPECIAL SERVICER]
[DEPOSITOR]
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing Agreement,
dated as of October 1, 1999, relating to DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999-CG3 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges that, as of the
date hereof, it is and shall be a party to the Agreement and bound thereby to
the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 2.06 of the Agreement, with the following
corrections with respect to type of entity and jurisdiction of organization:
____________________.
________________________________________
By: ____________________________________
Name:
Title:
I-2-1
<PAGE>
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
Debtor:
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Secured Party:
Norwest Bank Minnesota, National Association*
as Trustee for the registered holders of
DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3
3 New York Plaza
New York, New York 10004
Text:
See Exhibit 1 Attached Hereto
- ----------
* Notices to the Secured Party should be sent to 11000 Broken Land
Parkway, Columbia, Maryland 21044-3562, Attention: Corporate Trust
Administration (CMBS) - DLJ Commercial Mortgage Corp., Series
1999-CG3.
J-1-1
<PAGE>
EXHIBIT 1 to EXHIBIT J
This Exhibit 1 is attached to and incorporated in a financing
statement pertaining to DLJ Commercial Mortgage Corp. as depositor (referred to
as the "Debtor" for the purpose of this financing statement only), and Norwest
Bank Minnesota, National Association as trustee for the holders of the Series
1999-CG3 Certificates (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of October 1, 1999 (the "Pooling and Servicing Agreement"), among the
Debtor as depositor, the Secured Party as trustee, GE Capital Loan Services,
Inc., as master servicer (in such capacity, the "Master Servicer") and GMAC
Commercial Mortgage Corporation, as special servicer (in such capacity, the
"Special Servicer"), relating to the issuance of the Debtor's Commercial
Mortgage Pass-Through Certificates, Series 1999-CG3 (collectively, the "Series
1999-CG3 Certificates"). Capitalized terms used herein and not defined shall
have the respective meanings given to them in the Pooling and Servicing
Agreement. The attached financing statement covers all of the Debtor's right
(including the power to convey title thereto), title and interest in and to the
Trust Fund created pursuant to the Pooling and Servicing Agreement, consisting
of the following:
1. The mortgage notes or other evidence of indebtedness of a
borrower (the "Mortgage Notes") with respect to the mortgage
loans (the "Mortgage Loans") listed on the Mortgage Loan
Schedule to the Pooling and Servicing Agreement, which
Mortgage Loan Schedule is attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other similar
instruments securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each
other legal, credit and servicing document related to such
Mortgage Note and Mortgage (collectively, with such related
Mortgage Note and Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by the Master Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Collection Account, (c)
the investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general
intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of
principal and interest and the right to enforce the related
payment obligations, arising from or under any such
investments;
5. All REO Property;
6. (a) the REO Account required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b)
all funds from time to time on deposit in the REO Account, (c)
the investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general
intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of
J-1-2
<PAGE>
principal and interest and the right to enforce the related
payment obligations, arising from or under any such
investments;
7. (a) the Servicing Account(s) and Reserve Account(s) required
to be maintained by the Master Servicer or Special Servicer
pursuant to the Pooling and Servicing Agreement, and (b) all
funds from time to time on deposit in the Servicing Account(s)
and Reserve Account(s);
8. (a) the Distribution Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement,
(b) all funds from time to time on deposit in the Distribution
Account, (c) the investments of any such funds consisting of
securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments
of principal and interest and the right to enforce the related
payment obligations, arising from or under any such
investments;
9. All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be
maintained pursuant to the Mortgage Loan Documents and the
Pooling and Servicing Agreement, transferred to the Trust and
to be serviced by the Master Servicer or Special Servicer; and
10. All income, payments, products and proceeds of any of the
foregoing, together with any additions thereto or
substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD
THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY
TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN THE
CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER
OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT). WITH
RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY
ASSERTIONS BY THIRD PARTIES.
J-1-3
<PAGE>
Exhibit A
MORTGAGE LOAN SCHEDULE
J-1-4
<PAGE>
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income" shall
mean for each fiscal year or portion thereof, (i) the related Operating Income
allocable to such period, less (ii) the related Operating Expenses allocable to
such period, and less (iii) any Contractual Recurring Replacement Reserve for
such Mortgaged Property as indicated in the Prospectus Supplement dated October
5, 1999 relating to DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3 (the amounts described in this clause
(iii) to be prorated if "Net Operating Income" is being calculated for less than
a full fiscal year).
With respect to any Mortgaged Property "Operating Income" shall
mean, for each fiscal year or portion thereof, all revenue derived by the
related Mortgagor arising from the Mortgaged Property, including, without
limitation, rental revenues (whether denominated as basic rent, additional rent,
percentage rent, escalation payments, electrical payments or otherwise) and
other fees and charges payable pursuant to leases or otherwise in connection
with the Mortgaged Property, and rent insurance proceeds. Operating Income shall
not include (a) insurance proceeds (other than proceeds of business interruption
or other similar insurance allocable to the applicable period) and condemnation
awards (other than awards arising from a temporary taking or the use and
occupancy of all or part of the applicable Mortgaged Property allocable to the
applicable period), or interest accrued on such proceeds or awards, (b) proceeds
of any financing, (c) proceeds of any sale, exchange or transfer of the
Mortgaged Property or any part thereof or interest therein, (d) capital
contributions or loans to the Mortgagor or an Affiliate of the Mortgagor, (e)
any item of income otherwise includible in Operating Income but paid directly by
any tenant to a Person other than the Mortgagor except for real estate taxes
paid directly to any taxing authority by any tenant, (f) any other
extraordinary, non-recurring revenues, (g) rent paid by or on behalf of any
lessee under space lease which is the subject of any proceeding or action
relating to its bankruptcy, reorganization or other arrangement pursuant to
federal bankruptcy law or any similar federal or state law or which has been
adjudicated a bankrupt or insolvent, unless such space lease has been affirmed
by the trustee in such proceeding or action, or (h) rent paid by or on behalf of
any lessee under a space lease the demised premises of which are not occupied
either by such lessee or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses" shall
mean, for each fiscal year or portion thereof, all expenses directly
attributable to the operation, repair and/or maintenance of the Mortgaged
Property, including, without limitation, impositions, insurance premiums,
management fees, payments to third party suppliers, and costs attributable to
the operation, repair and maintenance of the systems for heating, ventilating
and air conditioning, and actually paid for by the Mortgagor. Operating Expenses
shall not include interest, principal and premium, if any, due under the
Mortgage Note or otherwise in connection with any other secured indebtedness,
income taxes, extraordinary capital improvements costs, or any non-cash charge
or expense such as depreciation.
K-1
<PAGE>
EXHIBIT L-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Norwest Bank Minnesota, National Association
3 New York Plaza, 15th Floor
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG3
In accordance with Section [4.02(a)] [8.12(b)] of the Pooling and
Servicing Agreement, dated as of October 1, 1999 (the "Pooling and Servicing
Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor"),
GE Capital Loan Services, Inc., as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer, and Norwest Bank Minnesota, National
Association as trustee (the "Trustee"), with respect to the DLJ Commercial
Mortgage Corp. Commercial Mortgage Pass-Through Certificates, Series 1999-CG3
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial holder of $___________
aggregate [Certificate Principal Balance/Certificate Notional
Amount] of the Class ____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information"):
___ The information on the Trustee's Internet Website
pursuant to Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule attached
hereto pursuant to Section 8.12(b) of the Pooling and
Servicing Agreement.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as
are assisting it in evaluating the Information), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner
whatsoever, in whole or in part; provided that the undersigned
may provide all or any part of the Information to any other
person or entity that holds or is contemplating the purchase
of any Certificate or interest therein, but only if such
person or entity confirms in writing such ownership interest
or prospective ownership interest and agrees to keep it
confidential; and provided that
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<PAGE>
the undersigned may provide all or any part of the Information
to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision
of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Non-Registered Certificate
(as defined in the Pooling and Servicing Agreement) pursuant
to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
________________________________________
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By: ____________________________________
Name:
Title:
Telephone No.:
L-1-2
<PAGE>
EXHIBIT L-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Norwest Bank Minnesota, National Association
3 New York Plaza, 15th Floor
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG3
In accordance with Section [4.02(a)] [8.12(b)] of the Pooling and
Servicing Agreement, dated as of October 1, 1999 (the "Pooling and Servicing
Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor"),
GE Capital Loan Services, Inc., as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer, and Norwest Bank Minnesota, National
Association as trustee (the "Trustee"), with respect to the DLJ Commercial
Mortgage Corp. Commercial Mortgage Pass-Through Certificates, Series 1999-CG3
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class
____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information") for use in evaluating such
possible investment:
___ The information on the Trustee's Internet Website
pursuant to Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule attached
hereto pursuant to Section 8.12(b) of the Pooling and
Servicing Agreement.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as
are assisting it in making the investment decision described
in paragraphs 1 and 2), and such Information will not, without
the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees,
agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in
part; provided that in the event the undersigned purchases any
Certificate or any interest in any Certificate, the
undersigned may provide all or any part of the Information to
any other person or entity that holds or is contemplating the
purchase of any Certificate or interest therein, but only if
such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep
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<PAGE>
it confidential; and provided that the undersigned may provide
all or any part of the Information to its auditors, legal
counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision
of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Non-Registered Certificate
(as defined in the Pooling and Servicing Agreement) pursuant
to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
________________________________________
[PROSPECTIVE PURCHASER]
By: ____________________________________
Name:
Title:
Telephone No.:
L-2-2
<PAGE>
EXHIBIT M-1
FORM OF COLUMN MORTGAGE LOAN PURCHASE
AND SALE AGREEMENT
M-1-1
<PAGE>
EXECUTION COPY
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of October
5, 1999 (this "Agreement"), is between DLJ Commercial Mortgage Corp., a Delaware
corporation (the "Purchaser"), and Column Financial, Inc., a Delaware
corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and otherwise
convey to the Purchaser, without recourse, subject to the terms and conditions
set forth below, certain multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified and more particularly described
on Schedule 1 attached hereto (the "Mortgage Loan Schedule"). Unless otherwise
indicated on the Mortgage Loan Schedule, the Mortgage Loans were originated by
the Seller. With respect to those Mortgage Loans, if any, identified on the
Mortgage Loan Schedule as having been originated by a party other than the
Seller (any such other party, a "Third Party Originator"; and any such Mortgage
Loan, a "Third Party Mortgage Loan"), the Seller is the beneficiary, either
directly or by way of assignment, of certain representations and warranties made
by the Third Party Originator(s) with respect to its (their) respective Third
Party Mortgage Loan(s) pursuant to the agreement(s) identified on Schedule 2
hereto (each agreement so identified, a "Third Party Originator Agreement"). The
Seller also intends to assign to the Purchaser all of its right, title and
interest in, to and under each Third Party Originator Agreement, as and to the
extent set forth in Section 2 below.
Reference is made to the Pooling and Servicing Agreement, dated as
of October 1, 1999 (the "Pooling and Servicing Agreement"), among the Purchaser,
as depositor, GE Capital Loan Services, Inc., as master servicer (the "Master
Servicer"), GMAC Commercial Mortgage Corporation, as special servicer (the
"Special Servicer"), and Norwest Bank Minnesota, National Association, as
trustee (the "Trustee"), relating to the issuance of the Purchaser's Commercial
Mortgage Pass-Through Certificates, Series 1999-CG3 (the "Certificates").
Capitalized terms used without definition herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement as in full
force and effect on the Closing Date (as defined below). The Seller acknowledges
that the Purchaser intends to transfer the Mortgage Loans, together with certain
other multifamily and commercial mortgage loans (the "Other Loans") acquired
from GE Capital Access, Inc. ("GECA"), to the Trustee in exchange for the
Certificates. The Purchaser has entered into an Underwriting Agreement, dated
the date hereof (the "Underwriting Agreement"), with Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), pursuant to which the Purchaser will
sell to DLJSC all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"; and such Certificates,
the "Registered Certificates"). The Purchaser has also entered into a
Certificate Purchase Agreement, dated the date hereof (the "Certificate Purchase
Agreement"), with DLJSC, whereby the Purchaser will sell to DLJSC all of the
remaining Certificates (the "Non-Registered Certificates").
1. Agreement to Purchase. Subject to the terms and conditions set
forth herein, the Seller agrees to sell, assign, transfer, set over and
otherwise convey (without recourse), and the Purchaser agrees to purchase, the
Mortgage Loans. The purchase and sale of the Mortgage Loans shall take place on
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<PAGE>
October 12, 1999 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The Mortgage Loans will have an aggregate
Cut-off Date Balance of approximately $444,317,061 (the "Aggregate Cut-off Date
Balance"). The purchase price for the Mortgage Loans shall be equal to 100% of
the Aggregate Cut-off Date Balance, plus accrued interest thereon at the
weighted average of the Mortgage Rates for the Mortgage Loans from October 1,
1999 (the "Cut-off Date") to but not including the Closing Date (net of related
Master Servicing Fees and Trustee's Fees), and such purchase price shall be paid
to the Seller on the Closing Date by wire transfer in immediately available
funds or by such other method as shall be mutually acceptable to the parties
hereto.
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 above, the Seller does hereby sell,
assign, transfer, set over and otherwise convey (without recourse) to the
Purchaser all the Seller's right, title and interest in and to the Mortgage
Loans, including all interest and principal received on or with respect to the
Mortgage Loans after the Cut-off Date (other than scheduled payments of interest
and principal due on or before the Cut-off Date), together with all of the
Seller's right, title and interest in and to the proceeds of any related title,
hazard or other insurance policies and any escrow, reserve or other comparable
accounts related to the Mortgage Loans, and all of the Seller's right, title and
interest in, to and under the Third Party Originator Agreements; provided,
however, that the Seller's rights under the Third Party Originator Agreements,
as assignee, and the rights the Seller is conveying hereunder, do not include
any rights of its assignor to indemnification under Section 4 of any such
agreement. On the Closing Date, the Seller shall transfer or cause to be
transferred to the Master Servicer the funds in such escrow, reserve or other
comparable accounts related to the Mortgage Loans, together with an amount equal
to all collections on the Mortgage Loans received prior to the Closing Date that
represent scheduled payments of principal and interest due and principal
prepayments received after the Cut-off Date.
(b) In connection with such transfer and assignment, the Purchaser
hereby directs the Seller to, and the Seller hereby agrees to, deliver to, and
deposit with, the Trustee (or a custodian appointed thereby (a "Custodian")) the
documents and/or instruments described on Exhibit A hereto with respect to each
Mortgage Loan (collectively as to each Mortgage Loan, the "Mortgage File");
provided that if, as to any Mortgage Loan, the related lender's title insurance
policy has not yet been issued, the Seller agrees that its delivery obligation
shall be deemed to be satisfied as to such missing title insurance policy, and
such missing title insurance policy shall be deemed to have been included in the
related Mortgage File, so long as (i) the Seller delivers to the Trustee on or
before the Closing Date a pro forma title policy or a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, (ii) the Seller
delivers to the Trustee, promptly following the receipt thereof, the original
related lender's title insurance policy (or a copy thereof), and (iii) as of the
date that is 180 days following the Closing Date, the Seller has delivered to
the Trustee the original related lender's title insurance policy. In addition,
the Purchaser hereby directs the Seller to, and the Seller hereby agrees to,
deliver to, and deposit with, the Master Servicer all of the documents and other
items referred to in Section 2.01(f) of the Pooling and Servicing Agreement with
respect to the Mortgage Loans (collectively as to each Mortgage Loan, the
"Servicing File"), together with any and all unapplied escrows and reserves in
respect of the Mortgage Loans.
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<PAGE>
If the Seller cannot deliver on the Closing Date any original or
certified recorded document or original policy of title insurance described on
Exhibit A solely because the Seller is delayed in making such delivery by reason
of the fact that such original or certified recorded document has not been
returned by the appropriate recording office or such original policy of title
insurance has not yet been issued, then the Seller shall notify the Purchaser,
the Trustee and, if applicable, the Custodian in writing of such delay and shall
deliver such documents to the Trustee or Custodian, as the case may be, promptly
upon the Seller's receipt thereof.
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser and its successors and assigns (including, without
limitation, the Trustee for the benefit of the Certificateholders), each of the
representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser and its successors and assigns
(including, without limitation, the Trustee for the benefit of the
Certificateholders), each of the representations and warranties set forth in
Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing
Date, to and for the benefit of the Purchaser only, that the Seller has not
dealt with any broker, investment banker, agent or other person (other than the
Purchaser and DLJSC) who may be entitled to any commission or compensation in
connection with the sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders), as
of the date of substitution, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Defective Mortgage Loan
(as defined in Section 4(a) hereof), whether by the Seller pursuant to Section
4(a) or by a Third Party Originator pursuant to the related Third Party
Originator Agreement, each of the representations and warranties set forth in
Exhibit B and Exhibit C (other than, in the case of a Replacement Mortgage Loan
substituted by a Third Party Originator, the representations and warranties set
forth in Paragraph (d) of Exhibit B and Paragraph 2 of Exhibit C). From and
after the date of substitution, each Replacement Mortgage Loan, if any, shall be
deemed to constitute a "Mortgage Loan" hereunder for all purposes.
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within 90 days of the earlier of discovery or receipt of notice
by the Seller that there has been a breach of any of the representations and
warranties set forth in Exhibit B or Exhibit C and made by the Seller pursuant
to Section 3(a), Section 3(b) or Section 3(d), as the case may be, which breach
materially and adversely affects the value of any Mortgage Loan or the interests
of the legal and/or beneficial owner(s) thereof (any such breach, a "Material
Breach"), the Seller shall, subject to subsection (b) below, (i) cure such
Material Breach in all material respects or (ii) repurchase each affected
Mortgage Loan (each, a "Defective Mortgage Loan") at the related Purchase Price
in accordance with the directions of the owner(s) of such Defective Mortgage
Loan(s); provided that if (i) such Material Breach does not relate to whether
the Defective Mortgage Loan was, as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as
M-1-4
<PAGE>
of the related date of substitution), a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material
Breach is capable of being cured but not within such 90- day period, (iii) the
Seller has commenced and is diligently proceeding with the cure of such Material
Breach within such 90-day period, and (iv) the Seller shall have delivered to
the owner(s) of the Defective Mortgage Loan a certification executed on behalf
of the Seller by an officer thereof setting forth the reason that such Material
Breach is not capable of being cured within the initial 90-day period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Material Breach will be cured within an
additional period not to exceed 90 more days, then the Seller (except with
respect to Third Party Mortgage Loans as provided in Section 4(b)) shall have up
to an additional 90 days to complete such cure or, failing such, to repurchase
the Defective Mortgage Loan; and provided, further, that if the Seller's
obligation to repurchase any Defective Mortgage Loan as a result of a Material
Breach arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), the
Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan
(but, in any event, no later than such repurchase would have to have been
completed), (x) replace such Defective Mortgage Loan with one or more substitute
mortgage loans that individually and collectively satisfy the requirements of
the definition of "Qualifying Substitute Mortgage Loan" set forth in the Pooling
and Servicing Agreement, and (y) pay any corresponding Substitution Shortfall
Amount, such substitution and payment to be effected in accordance with the
terms of the Pooling and Servicing Agreement (or, if the Defective Mortgage Loan
is no longer subject thereto, in accordance with the reasonable instructions of
the owner(s) thereof). Any such repurchase or replacement of a Defective
Mortgage Loan shall be on a whole loan, servicing released basis (subject to any
right of a Designated Sub-Servicer to continue to sub-service such Defective
Mortgage Loan as set forth in the related Designated Sub-Servicer Agreement).
The Seller shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Material Breach, but if the Seller discovers a Material Breach
with respect to a Mortgage Loan, it will notify the Purchaser.
Without limiting any of the foregoing, the absence of an original
Mortgage Note, an original or a copy of a Mortgage (with or without evidence of
recording thereon) or an original or a copy of a lender's title insurance policy
from a Mortgage File or any material nonconformity to the Mortgage Loan Schedule
of any such document or any material irregularity on the face thereof (without
the presence of any factor, such as the presence of a lost note affidavit with
an indemnity in the case of a missing Mortgage Note or the presence of a pro
forma title policy or a commitment for title insurance "marked-up" at the
closing of the subject Mortgage Loan, that in the reasonable discretion of the
owner(s) of the subject Mortgage Loan reasonably mitigates such absence,
non-conformity or irregularity) shall be deemed a Material Breach of the
representation and warranty set forth in Paragraph 39 of Exhibit C hereto.
Furthermore, if either an original or a copy of any of the documents referred to
in clauses (ii) - (v) of Exhibit A, with evidence of recording indicated
thereon, has not been delivered to the Trustee or a Custodian on its behalf with
respect to any Mortgage Loan on or before the second anniversary of the Closing
Date, such failure shall likewise be deemed a Material Breach of the
representation and warranty set forth in Paragraph 39 of Exhibit C hereto.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(a), the Seller (i) shall deliver
the related Mortgage File for each such substitute mortgage loan to the owner(s)
of the Defective Mortgage Loan, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement
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<PAGE>
and (iii) send such certification to such owner(s). No mortgage loan may be
substituted for a Defective Mortgage Loan as contemplated by this Section 4(a)
if the Defective Mortgage Loan to be replaced was itself a Replacement Mortgage
Loan. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the Cut-off Date (or, in
the case of a Replacement Mortgage Loan, the related date of substitution) and
on or prior to the related date of repurchase or replacement, shall belong to
the Purchaser and its successors and assigns. Monthly Payments due with respect
to each Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller (or, in the case of a Defective Mortgage Loan that is repurchased
or replaced by a Third Party Originator, to such Third Party Originator).
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the owner(s) of such Defective Mortgage
Loan.
Except as set forth in Section 8, it is understood and agreed that
the obligations of the Seller set forth in this Section 4(a) to cure a Material
Breach or repurchase or replace the related Defective Mortgage Loan(s),
constitute the sole remedies available to the Purchaser or any assignee
respecting a breach of the representations and warranties set forth on Exhibits
B and C and made by the Seller pursuant to Sections 3(a), 3(b) and 3(d),
respectively.
(b) It is hereby acknowledged that with respect to the Third Party
Mortgage Loans, if any, the rights of the Seller in respect of those certain
representations and warranties made by the Third Party Originators pursuant to
the Third Party Originator Agreements and assigned by the Seller to the
Purchaser pursuant hereto will, in turn, be assigned by the Purchaser to the
Trustee, as trustee under the Pooling and Servicing Agreement, for the benefit
of the Certificateholders. Accordingly, it is hereby agreed that if, with
respect to any such Third Party Mortgage Loan, there exists a breach of any of
the related Third Party Originator's representations and warranties for which
such Third Party Originator could be required to repurchase or (at its option,
to the extent of its substitution rights and subject to the Seller's right to
approve any Replacement Mortgage Loan delivered thereunder) replace such Third
Party Mortgage Loan, then notwithstanding that such Third Party Mortgage Loan
may also constitute a Defective Mortgage Loan for purposes of Section 4(a) by
reason of a Material Breach of any of the Seller's representations and
warranties set forth in Exhibits B and C made pursuant to Sections 3(a), 3(b)
and 3(d), respectively, the Seller shall be deemed not to have notice of such
Material Breach (and, correspondingly, not to be obligated to proceed with the
cure of such Material Breach or the repurchase or replacement of such Third
Party Mortgage Loan) unless and until the related Third Party Originator shall
have failed to cure such Material Breach or repurchase or replace such Third
Party Mortgage Loan during the cure period for the breach of its representations
and warranties set forth in the related Third Party Originator Agreement;
provided that this sentence shall not apply in the event of a Material Breach
that relates to whether the Defective Mortgage Loan was, as of the Closing Date
(or, in the case of a Replacement Mortgage Loan, the related date of
substitution), a Qualified Mortgage; and, provided, further, that, if, as a
result of the failure of a Third Party Originator to cure a Material Breach on
the part of the Seller with respect to a Third Party Mortgage Loan or repurchase
or replace such Third Party Mortgage Loan during the applicable cure period, the
Seller is obligated to cure such Material Breach on its part or repurchase or
replace such Third Party Mortgage Loan,
M-1-6
<PAGE>
the Seller shall be obligated to do so within 90 days following the end of the
cure/repurchase/substitution period for the related Third Party Originator and
the Seller shall not be entitled to the additional 90-day cure period that is
provided for in Section 4(a) with respect to Mortgage Loans that are not Third
Party Mortgage Loans. In addition, if the price at which any Third Party
Mortgage Loan is required to be repurchased by the related Third Party
Originator, or the additional cash amount to be paid together with the delivery
of one or more Replacement Mortgage Loans substituted by the related Third Party
Originator for any Third Party Mortgage Loan, in either case in connection with
a breach of such Third Party Originator's representations and warranties as
contemplated above, is less than the applicable Purchase Price or Substitution
Shortfall Amount, as the case may be, the Seller shall make-up the difference
out of its own funds (payment of such difference to be made in accordance with
the directions of the owner(s) of such Third Party Mortgage Loan at the time it
is repurchased or replaced by such Third Party Originator).
(c) It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to Section 4(a) that the Trustee
as assignee of the Purchaser shall have executed and delivered such instruments
of transfer or assignment then presented to it by the Seller, in each case
without recourse, as shall be necessary to vest in the Seller (i) the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), to the extent that such ownership interest was transferred to the
Trustee under the Pooling and Servicing Agreement, and (ii) in the case of a
Third Party Mortgage Loan, the rights in respect of such Third Party Mortgage
Loan under the related Third Party Originator Agreement that were assigned to
the Trustee under the Pooling and Servicing Agreement.
(d) The Seller hereby acknowledges and consents to the assignment by
the Purchaser to the Trustee, as trustee under the Pooling and Servicing
Agreement, for the benefit of the Certificateholders, of (i) the representations
and warranties set forth in Exhibits B and C and made by the Seller pursuant to
Sections 3(a), 3(b) and 3(d), respectively, (ii) the obligation of the Seller to
repurchase or replace a Defective Mortgage Loan in connection with a Material
Breach pursuant to Section 4(a), and (iii) the obligation of the Seller to
deliver certain documentation, funds and other assets relating to the Mortgage
Loans pursuant to Section 2. The Trustee or its designee may enforce such
obligations as provided in Section 11(a) hereof or as assignee.
5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley & Austin, 875 Third Avenue,
New York, New York 10022 at 10:00 a.m., New York City time (or at such other
place and time as may be determined by the Purchaser), on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller made
pursuant to Section 3 of this Agreement shall be true and correct as of
the Closing Date;
(ii) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
M-1-7
<PAGE>
(iii) The Seller shall have delivered and released to the Trustee or
a Custodian and to the Master Servicer, respectively, all documents, funds
and other assets required to be delivered thereto pursuant to Section 2 of
this Agreement;
(iv) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date; and
(v) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement duly executed by the Purchaser and the Seller;
(ii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by an executive officer of the Seller, in his or her
individual capacity, and dated the Closing Date, and upon which the
Purchaser, DLJSC, the Trustee and the Certificateholders (collectively,
for purposes of this Section 6, the "Interested Parties") may rely,
attaching thereto as exhibits (A) the resolutions of the board of
directors of the Seller authorizing the Seller's entering into the
transactions contemplated by this Agreement, and (B) the certificate of
incorporation and by-laws of the Seller;
(iii) A certificate of good standing of the Seller issued by the
Secretary of State of the State of Delaware not earlier than ten days
prior to the Closing Date, and upon which the Interested Parties may rely;
(iv) A Certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer of the Seller and
dated the Closing Date, and upon which the Interested Parties may rely;
(v) A written opinion of Long Aldridge & Norman, counsel for the
Seller, substantially in the form of Exhibit D-3 hereto, with any
modifications required by any rating agency (each, a "Rating Agency")
identified in the Prospectus Supplement or the Memorandum (each as defined
in Section 8), dated the Closing Date and addressed to the Purchaser,
DLJSC, the Trustee and, if requested thereby, each Rating Agency, together
with such other written opinions as may be required by any Rating Agency;
and
(vi) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
7. Costs. All costs and expenses incidental to the transactions
contemplated by this Agreement, including without limitation, any recording fees
or fees for title policy endorsements and
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<PAGE>
continuations and fees and expenses of its counsel, shall be paid and payable in
accordance with the Term Sheet for the Joint Conduit Securitization (the "Term
Sheet"), between DLJSC and GE Capital Access, Inc.
8. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser,
DLJSC, GECA, their respective officers and directors, and each person, if any,
who controls the Purchaser, DLJSC or GECA within the meaning of either Section
15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (the Purchaser, DLJSC, GECA, their respective
officers and directors and any such controlling persons, collectively, for
purposes of this Section 8, the "Indemnified Parties"), against any and all
losses, claims, damages, liabilities, costs and expenses, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities, costs or
expenses (or actions in respect thereof) (i) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in (A)
the Prospectus Supplement (including, without limitation, Exhibit A-1 and
Exhibit A-2 thereto and the Diskette) or any preliminary version thereof (any
such preliminary version thereof, a "Preliminary Prospectus Supplement"), the
Memorandum (including, without limitation, the Prospectus Supplement as attached
as Exhibit A thereto) or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment of or supplement to any of the foregoing documents, or
(B) any items similar to Computational Materials and/or ABS Term Sheets
forwarded to prospective investors in the Non-Registered Certificates, or (ii)
arise out of or are based upon the omission or alleged omission (in the case of
an omission or alleged omission in the ABS Term Sheets and the Computational
Materials relating to the Registered Certificates, when read in conjunction with
the Prospectus and, in the case of an omission or alleged omission in items
similar to Computational Materials and ABS Term Sheets furnished to prospective
investors in the Non-Registered Certificates, when read in conjunction with the
Memorandum and, in the case of an omission or alleged omission in the
Memorandum, when read together with other information made available for review
by investors in the Non-Registered Certificates) to state in any of the printed
materials described in the immediately preceding clause (i) (collectively, the
"Disclosure Documents") a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; but, in the case of clauses (i) and (ii), only if and to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission (I) arises out of or is based upon an untrue statement or omission with
respect to the information regarding the Mortgage Loans, the related Borrowers
or the related Mortgaged Properties contained in the Master Tape (it being
acknowledged that the Master Tape was used to prepare the Prospectus Supplement
(including, without limitation, Exhibit A-1 and Exhibit A-2 thereto and the
Diskette) and any Preliminary Prospectus Supplement, the Memorandum, the
Computational Materials and ABS Term Sheets with respect to the Registered
Certificates and any items similar to Computational Materials and ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates),
(II) arises out of an untrue statement or alleged untrue statement or omission
or alleged omission made in any of the Disclosure Documents in reliance upon and
in conformity with any other information concerning the characteristics of the
Mortgage Loans, the related Borrowers or the related Mortgaged Properties
furnished to the Purchaser, or DLJSC by the Seller, (III) is contained in the
information regarding the Mortgage Loans, the related Borrowers, the related
Mortgaged Properties or the Seller set forth in the Prospectus Supplement, any
Preliminary Prospectus Supplement and the Memorandum under the headings "Summary
of Prospectus Supplement--The Mortgage Loans and the Underlying Real
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Properties", "Risk Factors" and "Description of the Mortgage Pool" or on Exhibit
A-1 to the Prospectus Supplement or on the Diskette, or (IV) arises out of or is
based upon a breach of the representations and warranties of the Seller set
forth in or made pursuant to Section 3 (such representations and warranties,
together with the information described in the preceding clauses (I), (II) and
(III), the "Seller Information"); provided that the indemnification provided by
this Section 8 shall not apply to the extent that such untrue statement or
omission was made as a result of an error in (x) the manipulation of, or (y) any
calculations based upon, or (z) any aggregation (other than an aggregation made
in the Master Tape by the Seller) of, the information regarding the Mortgage
Loans, the related Borrowers, the related Mortgaged Properties or the Seller,
including without limitation the aggregation of such information with comparable
information relating to the Other Loans. Notwithstanding the foregoing, the
indemnity provided for in the preceding sentence with respect to any loss,
claim, damage, liability, cost or expense referred to therein and arising out of
or based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus Supplement, any
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates or any items similar to Computational Materials or ABS Term Sheets
forwarded to prospective investors in the Non-Registered Certificates, or any
revision or amendment of or supplement to any such document, shall not inure to
the benefit of DLJSC (or any officer, director or controlling person in respect
thereof) from whom the person asserting such loss, claim, damage, liability,
cost or expense purchased the Certificates which are the subject thereof if: (i)
in the case of any Preliminary Prospectus Supplement (or any revision or
amendment thereof or supplement thereto), DLJSC did not deliver to such person a
copy of the Prospectus Supplement (or the Prospectus Supplement as most recently
amended or supplemented) at or prior to the confirmation of the sale of the
subject Certificates to such person in any case where such delivery is required
by the Securities Act, the Purchaser has previously furnished to DLJSC copies
thereof in sufficient quantity, the untrue statement or alleged untrue statement
or omission or alleged omission made in such Preliminary Prospectus Supplement
was corrected in the Prospectus Supplement (or the Prospectus Supplement as most
recently amended or supplemented) and such correction would have cured the
defect giving rise to any such loss, claim, damage, liability, cost or expense;
and (ii) in the case of any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates or any items similar to Computational
Materials or ABS Term Sheets forwarded to prospective investors in the
NonRegistered Certificates (or any revision or amendment of or supplement to any
such document), the Seller notified DLJSC, in writing of the Collateral Error
that gave rise to the untrue statement or alleged untrue statement or omission
or alleged omission or provided in written or electronic format information
superseding or correcting such Collateral Error prior to the time of
confirmation of sale of the subject Certificates to such person, and DLJSC
failed to deliver to such person corrected materials (or, if the superseding or
correcting information was contained in the Prospectus Supplement or Memorandum,
failed to deliver to such person the Prospectus Supplement or Memorandum, as the
case may be) at or prior to confirmation of such sale to such person.
The Seller acknowledges that the Purchaser and DLJSC will enter into
the Underwriting Agreement and the Certificate Purchase Agreement, and the
Purchaser and GECA will enter into a mortgage loan purchase and sale agreement,
in each case in reliance upon the indemnity agreement of the Seller provided for
in the preceding paragraph. Such indemnity agreement will be in addition to any
liability which the Seller may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean
the registration statement No. 333-82275 filed by the Purchaser on Form S-3,
including, without limitation, all exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated
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October 5, 1999, as supplemented by the prospectus supplement dated October 5,
1999 (the "Prospectus Supplement"), relating to the Registered Certificates,
including, without limitation, all annexes and exhibits thereto and the
Diskette; "Memorandum" shall mean the private placement memorandum dated October
5, 1999, relating to certain classes of the Non-Registered Certificates,
including, without limitation, all annexes and exhibits thereto; "Computational
Materials" shall have the meaning assigned thereto in the no-action letter dated
May 20, 1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to Kidder, Peabody Acceptance Corporation
I, Kidder, Peabody & Co. Incorporated, and Kidder Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Kidder Letters"); "ABS Term Sheets" shall have the meaning
assigned thereto in the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Kidder Letters, the
"No-Action Letters"); "Diskette" shall mean the diskette attached to the
Prospectus Supplement, any Preliminary Prospectus Supplement and the Memorandum;
"Master Tape" shall mean the compilation of underlying information and data
regarding the Mortgage Loans and the Other Loans covered by the Independent
Accountants Report on Applying Agreed Upon Procedures dated October 5, 1999, as
supplemented to the Closing Date, and rendered by Arthur Andersen LLP; and
"Collateral Error" shall mean any error in the information regarding the Seller,
the Mortgage Loans, the related Mortgaged Properties or the related Borrowers
contained in the Master Tape or any other information supplied by the Seller to
the Purchaser or DLJSC or any breach of the representations and warranties made
by the Seller in or pursuant to Section 3.
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any Indemnified Party, the
Indemnified Party shall promptly notify the Seller in writing, and the Seller,
upon request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and any
other Indemnified Parties the Seller may designate in such proceeding and shall
pay the reasonable fees and disbursements of such counsel relating to such
proceeding. In any such proceeding, any Indemnified Party shall have the right
to select its own counsel, and the reasonable fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Seller and such
Indemnified Party shall have mutually agreed to the retention of such separate
counsel, (ii) the named parties to any such proceeding (including, without
limitation, any impleaded parties) include both the Seller and such Indemnified
Party, and representation of both such parties by the same counsel would be
inappropriate due to actual or potential differing interests or differing or
additional defenses between or among them, or (iii) the Seller shall have failed
within a reasonable period to retain counsel reasonably satisfactory to the
Indemnified Party in accordance with the preceding sentence. It is understood
that the Seller shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the legal fees and
disbursements of more than one legal counsel for all the Indemnified Parties.
The Seller may, at its option, at any time upon written notice to the
Indemnified Party assume the defense of any proceeding and may designate counsel
satisfactory to the Indemnified Party in connection therewith provided that the
counsel so designated would have no actual or potential conflict of interest in
connection with such representation. Unless it shall assume the defense of any
proceeding, the Seller shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Seller agrees to indemnify the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. If the Seller assumes the defense of any proceeding, the
Seller shall be entitled to settle such proceeding with the written consent of
the Indemnified Party in connection with all claims which have been asserted
against the Indemnified Party in such proceeding by the other parties to such
settlement, and the Seller shall be entitled to settle such proceeding without
the
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written consent of the Indemnified Party, provided that the Indemnified Party
receives a full and unconditional release of all claims asserted against such
Indemnified Party from all liability arising out of such litigation,
investigation, proceeding or claim and such release does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf
of such Indemnified Party.
(c) If the indemnification provided for in Section 8(a) is
unavailable to an Indemnified Party or insufficient to hold it harmless in
respect of any losses, claims, damages, liabilities, costs or expenses referred
to in and intended to be covered under Section 8(a), then the Seller shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities, costs or expenses, in such
proportion as is appropriate to reflect the relative fault of the Seller and the
Indemnified Party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Indemnified Party and the
Seller shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
parties.
(d) The parties hereto agree that it would not be just and equitable
if contribution pursuant to Section 8(c) above were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 8(c) above. The amount paid
or payable by an Indemnified Party as a result of the losses, claims, damages,
liabilities, costs or expenses referred to above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim (except where the Indemnified Party is
required to bear such expenses pursuant to this Section 8), which expenses the
Seller shall pay as and when incurred, at the request of the Indemnified Party,
and to the extent that the Seller will be ultimately obligated to pay such
expenses. If and to the extent that any expenses so paid by the Seller are
subsequently determined to not be required to be borne by the Seller hereunder,
the Indemnified Party which received such payment shall promptly refund the
amount so paid to the Seller. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 8 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any of the Indemnified Parties, and (iii) acceptance of and payment for the
Mortgage Loans.
9. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Purchaser, will be sent by
regular prepaid U.S. Mail or prepaid reputable overnight courier or delivered by
hand and confirmed to it at 277 Park Avenue, 9th Floor, New York, New York
10172, Attention: N. Dante LaRocca, or such other address as may be designated
by the Purchaser to the Seller and DLJ Mortgage Capital, Inc. (the "Additional
Party") in writing, or, if sent to the Seller, will be sent by regular prepaid
U.S. Mail or prepaid reliable overnight courier or delivered by hand and
confirmed to it at 3414 Peachtree Road, N.E., Suite 1140, Atlanta, Georgia
30326-1113, Attention: President, or such other address as may be designated by
the Seller to the Purchaser in writing, or, if sent to the Additional Party,
will be sent by regular prepaid U.S. Mail or prepaid reputable overnight courier
or delivered by hand and
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<PAGE>
confirmed to it at 277 Park Avenue, New York, New York 10172, Attention: N.
Dante LaRocca, or such other address as may be designated by the Additional
Party to the Purchaser in writing.
10. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may not be changed in any manner which would have a
material adverse effect on Holders of the Certificates without the prior written
consent of the Trustee. This Agreement also may not be changed in any manner
which would have a material adverse effect on any other third party beneficiary
hereof without the prior written consent of that person. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
in Section 11 hereof.
11. Third Party Beneficiaries.
(a) The Trustee and the Certificateholders are intended third party
beneficiaries of the representations, warranties and covenants made by the
Seller in Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent relevant to
the foregoing, in Sections 9, 10, 13, 14, 15, 16, 17 and 19) of this Agreement.
It is acknowledged that such representations, warranties and covenants of the
Seller may be enforced by the Trustee against the Seller, on behalf of itself
and the Certificateholders, to the same extent as if they were parties hereto.
(b) DLJSC is an intended third party beneficiary of the
representations, warranties and covenants of the Seller set forth in Sections
3(a), 5, 6 and 8 and the covenants of the Additional Party set forth in Section
20 (and, to the extent relevant to the foregoing, in Sections 10, 13, 14, 15, 16
and 17) of this Agreement. It is acknowledged and agreed that such
representations, warranties and covenants may be enforced by or on behalf of
DLJSC against the Seller and, with respect to Section 20, the Additional Party
to the same extent as if it was a party hereto.
(c) GECA and each of the officers, directors and controlling persons
of each of the Purchaser, DLJSC and GECA referred to in Sections 8 and 20 hereof
is an intended third party beneficiary of the representations, warranties,
covenants and indemnities of the Seller set forth in Section 8 and the covenants
of the Additional Party set forth in Section 20 (and, to the extent relevant to
the foregoing, in Sections 10, 13, 14, 15, 16 and 17) of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of any such person or entity against
the Seller and, with respect to Section 20, the Additional Party to the same
extent as if such person or entity was a party hereto.
12. Characterization. It is the express intent of the parties hereto
that the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. Furthermore, it is not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to secure a debt or other obligation of the Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Seller then: (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed
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<PAGE>
to be a grant by the Seller to the Purchaser of a first priority security
interest in all of the Seller's right, title and interest in and to the Mortgage
Loans and all amounts payable to the holder(s) of the Mortgage Loans in
accordance with the terms thereof (other than scheduled payments of interest and
principal due on or before the Cut-off Date) and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (c) the assignments by the Purchaser to the Trustee of its
interests in the Mortgage Loans as contemplated by Section 4(d) hereof shall be
deemed to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser or any successor thereto of the related Mortgage
Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the Georgia Uniform Commercial Code, the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (e) notifications to, and acknowledgments, receipts or
confirmations from, persons or entities holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser or any
successor thereto for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent con sistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement.
13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser (and by the Purchaser to the Trustee), notwithstanding any restrictive
or qualified endorsement or assignment in respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provi sion, representation, warranty or covenant of this Agreement that is
prohibited or is held to be void or unenforceable in any particular jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties hereto waive any
provision of law which prohibits or renders void or unenforceable any provision
hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the substantive laws of the State
of New York, applicable to agreements made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, the Seller hereby
irrevocably (i) submits to the jurisdiction of any New York State and federal
courts sitting in New York City with respect to matters arising out of or
relating to this Agreement; (ii) agrees that all claims with respect to such
action or proceeding may be heard and determined in such New York State or
federal courts; (iii) waives, to the fullest possible extent, the defense of an
inconvenient forum; and (iv) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
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<PAGE>
16. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
17. Successors and Assigns. The rights and obligations of the Seller
and the Additional Party under this Agreement shall not be assigned by the
Seller or the Additional Party, as the case may be, without the prior written
consent of the Purchaser, except that any person into which the Seller or the
Additional Party, as the case may be, may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller or the Additional Party, as the case may be, is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller or the Additional Party, as the case may be,
hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as contemplated by Section 4(d) or as may
otherwise be required to effect the purposes of the Pooling and Servicing
Agreement, and the assignee shall, to the extent of such assignment, succeed to
the rights and obligations hereunder of the Purchaser.
18. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
19. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
19 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 19. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" and covering all the Mortgage Loans in such Cross-
Collateralized Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
20. Obligations of the Additional Party. The Additional Party
agrees, in consideration of and as an inducement to the Purchaser's purchase of
the Mortgage Loans from the Seller, to indemnify and hold harmless the
Purchaser, DLJSC, GECA, their respective officers and directors, and any person
who controls any of the Purchaser, DLJSC or GECA within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any failure
by the Seller to perform any of its obligations under Section 8 hereof (as they
relate to the indemnity agreement of the Seller in Section 8(a) and the
corresponding contribution obligations in Section 8(c) (the "Covered
Obligations")), promptly after receipt from any Indemnified Party of written
notice of any such failure. The Additional Party hereby waives notice of
acceptance of its obligations hereunder and notice of any obligation or
liability to which it may apply, and waives presentment, demand for payment,
protest, notice of dishonor or non-payment of any such obligation
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<PAGE>
or liability, suit or the taking of other action by any party hereto against,
and any other notice to, the Additional Party. The Additional Party's
obligations hereunder shall not be affected by any events, occurrences or
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor or surety, and such obligations will only be discharged
by full, complete and final payment of the Covered Obligations.
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<PAGE>
IN WITNESS WHEREOF, the Purchaser, the Seller and the Additional
Party have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
COLUMN FINANCIAL, INC.
By: ____________________________________
Name: John F. Bricker
Title: Senior Vice President
DLJ COMMERCIAL MORTGAGE CORP.
By: ____________________________________
Name: N. Dante LaRocca
Title: Senior Vice President
DLJ MORTGAGE CAPITAL, INC.**
By: ____________________________________
Name: N. Dante LaRocca
Title: Senior Vice President
- ----------
** DLJ Mortgage Capital, Inc. is executing this Agreement solely with
respect to this obligations set forth in Section 20 and with respect to
the matters set forth in Section 9, 10, 11, 14, 15 and 17.
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<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller with Respect to the
Mortgage Loans
The documents and instruments to be delivered to the Trustee (or a
Custodian on behalf of the Trustee) in respect of each Mortgage Loan pursuant to
Section 2(b) of this Agreement are, subject to Section 19, as follows:
(i) the original executed Mortgage Note, endorsed (either on the face
thereof or pursuant to a separate allonge) "Pay to the order of Norwest
Bank Minnesota, National Association as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, without recourse";
(ii) an original or a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in clause (iv)
below, in each case with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
below, in each case with evidence of recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of Norwest
Bank Minnesota, National Association, as trustee for the registered
holders of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, in recordable form;
(v) an original executed assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in favor of
Norwest Bank Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG3, in recordable form;
(vi) originals or copies of any written assumption, modification, written
assurance and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been modified or the
Mortgage Loan has been assumed;
(vii) the original or a copy of the policy of lender's title insurance;
(viii) filed copies of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with
the applicable public office for UCC Financing Statements, an original
UCC-2 or UCC-3, as appropriate, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-CG3;
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(ix) any environmental indemnity agreement and the original or a copy of
any Environmental Insurance Policy relating solely to such Mortgage Loan;
(x) power of attorney, guaranty, property management agreement, Ground
Lease, intercreditor agreement, cash management agreement and lock-box
agreement, relating to such Mortgage Loan;
(xi) any original documents (including any security agreements and any
Letters of Credit and related letter of credit reimbursement agreements)
relating to, evidencing or constituting Additional Collateral;
(xii) any insurance certificates relating to hazard insurance policies
maintained by the Borrower with respect to the related Mortgaged Property
that are in the possession of the Seller; and
(xiii) if such Mortgage Loan is the CTL Loan, an original or copy of the
Credit Lease and Lease Enhancement Policy;
provided that the evidence of recording referred to in clauses (ii) and (iii)
shall not be required prior to the second anniversary of the Closing Date if the
subject document has not been returned from the applicable recording office.
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Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the Closing
Date:
(a) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and is possessed
of all licenses necessary to carry on its business and is qualified and in
good standing and in compliance with the laws of each State in which any
Mortgaged Property securing a Mortgage Loan is located to the extent
necessary to ensure the enforceability of such Mortgage Loan as
contemplated by the terms of this Agreement and the Pooling and Servicing
Agreement.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine
signature) and delivery of any and all documents contemplated by this
Agreement, including, without limitation, endorsements of Mortgage Notes,
and the performance and compliance by the Seller with the terms of this
Agreement will not (i) violate the Seller's organizational documents, (ii)
violate any law or regulation or any administrative decree or order to
which the Seller is subject or (iii) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound or which
is applicable to it or any of its assets.
(c) The Seller has full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the
event that the related transaction is deemed to constitute a loan secured
by all or part of the Mortgage Loans, to pledge the Mortgage Loans) in
accordance with, and under the conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (ii) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law, and (iii) public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement which purport or are
construed to provide indemnification from liabilities under applicable
securities laws.
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(f) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms hereof will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Seller's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Seller to
perform its obligations under this Agreement or the financial condition of
the Seller.
(g) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which, if determined adversely to
the Seller, would prohibit the Seller from entering into this Agreement
or, in the Seller's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Seller to
perform its obligations hereunder or the financial condition of the
Seller.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(i) The principal place of business and chief executive office of
the Seller is located in Atlanta, Georgia.
(j) The Seller is a wholly-owned subsidiary of DLJ Mortgage Capital,
Inc.
(k) The Seller is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act.
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Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge" and
other words and phrases of like import shall mean the actual state of knowledge
of the Seller regarding the matters referred to, in each case without having
conducted any independent inquiry into such matters and without any obligation
to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the date
hereinbelow specified or, if no such date is specified, as of the Closing Date,
and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of the Pooling and Servicing Agreement) and
correct in all material respects as of the date of this Agreement and as of the
Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer to
the Purchaser of the Mortgage Loans, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests and/or other encumbrances. Upon completion of the conveyance
contemplated hereby, the Seller will have validly and effectively conveyed to
the Purchaser all legal and beneficial interest in and to such Mortgage Loan
free and clear of any pledge, lien or security interest created by or through
the Seller. The sale of the Mortgage Loans to the Purchaser or its designee does
not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. As of the Closing Date, no scheduled payment of
principal and interest under any Mortgage Loan was 30 days or more past due, and
no Mortgage Loan has been 30 days or more delinquent in the twelve-month period
immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or a "marked-up" commitment), none of which
materially interferes with the security intended to be provided by such
Mortgage, the current use of the related Mortgaged Property or the current
ability of the related Mortgaged Property to generate income sufficient to
service the related Mortgage Loan, (c) exceptions and exclusions specifically
referred to in such lender's title insurance policy (or such pro forma title
policy or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current use of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, (d)
other
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matters to which like properties are commonly subject, none of which materially
interferes with the security intended to be provided by such Mortgage, the use
of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (e) the rights of tenants to remain (whether under ground leases or space
leases) at the Mortgaged Property following a foreclosure or similar proceeding
(provided that such tenants are performing under such leases) and (f) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group (the foregoing items (a) through (f) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such Mortgage executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid, binding and enforceable assignment thereof from the relevant assignor to
the Trustee (subject to the exceptions set forth in Paragraph 13 below).
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in
the property and rights described therein; and each assignor thereunder has the
full right to assign the same. The related assignment of such Assignment of
Leases executed and delivered in favor of the Trustee is in recordable form and
constitutes a legal, valid, binding and enforceable assignment thereof from the
relevant assignor to the Trustee (subject to the exceptions set forth in
Paragraph 13 below). No person owns any interest in any payments due under the
related leases that is superior to the lien created by such Assignment of
Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage related
to a Mortgage Loan has been satisfied, canceled, rescinded or subordinated in
whole or in material part, and the related Mortgaged Property has not been
released from the lien of such Mortgage, in whole or in material part, nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases related to a Mortgage Loan have
been impaired, waived, altered or modified in any material respect, except by
written instruments, all of which are included in the related Mortgage File.
7. Condition of Property; Condemnation. Each Mortgaged Property
securing a Mortgage Loan is, to the Seller's knowledge, free and clear of any
damage that would materially and adversely affect its value as security for such
Mortgage Loan (except in such case where an escrow of funds exists sufficient to
effect the necessary repairs and maintenance). The Seller has not received
notice (and is not otherwise aware) of any proceeding pending for the total or
partial condemnation of or affecting the Mortgaged Property securing any
Mortgage Loan. As of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property lay wholly within
the boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that are
insured against by the lender's title insurance policy referred to herein or
that do not materially and adversely affect the value or marketability of such
Mortgaged Property, and no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") in the original principal
amount of such Mortgage Loan after all advances of principal insuring that
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the related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the exceptions stated therein (or a pro forma title policy or
marked up title insurance commitment on which the required premium has been paid
exists which evidences that such Title Policy will be issued). Such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid, and no material claims
have been made thereunder and no claims have been paid thereunder (and the
Seller has not received notice of any material claims having been made or paid
thereunder). No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. The insurer issuing such Title Policy is
qualified to do business in the jurisdiction in which the related Mortgaged
Property is located, and such Title Policy contains no exclusion for, or it
affirmatively insures (unless, in the case of clauses (b) and (c) below, the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available), (a) access to a public road, (b) that there are no
material encroachments of any part of the improvements on the related Mortgaged
Property over easements, which encroachments could reasonably be expected to
materially interfere with the use of the related Mortgaged Property and (c) that
the area shown on the survey conducted in connection with the origination of the
related Mortgage Loan is the same as the property legally described in the
related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been made but a portion thereof is being held back pending the satisfaction of
certain conditions relating to leasing, repairs or other matters with respect to
the related Mortgaged Property), and there is no obligation for future advances
with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in Paragraph 13
below) such as to render the rights and remedies of the holder thereof adequate
for the practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect of any
Mortgage Loan is a deed of trust, (a) a trustee, duly qualified under applicable
law to serve as such, is properly designated and serving under such Mortgage,
and (b) except in connection with a trustee's sale after default by the related
Borrower, no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof.
12. Environmental Conditions. Except with respect to the Mortgaged
Properties identified as Murdock Apartments, Merriwood Village Apartments,
Bri-Mar Building, Casa De Dallas Apartments, St. Charles & Prytania Street
Apartments, 244-256 Orange Place Apartments, 249 Orange Place Apartments and
Circa 1886 Building on the Mortgage Loan Schedule, an environmental site
assessment was performed with respect to each Mortgaged Property in connection
with the origination of the related Mortgage Loan, a report of each such
assessment (an "Environmental Report") has been delivered to the Purchaser, and
either (x) no such Environmental Report reveals any known circumstances or
conditions with respect to the related Mortgaged Property that rendered such
Mortgaged Property, at the date of such Environmental Report, in material
violation of any applicable environmental laws or (y) if any such Environmental
Report does reveal any such circumstances or conditions with respect to the
related Mortgaged Property and the same have not
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<PAGE>
been subsequently remediated in all material respects, then either (i) the
expenditure of funds necessary to effect such remediation is not material in
relation to the outstanding principal balance of the related Mortgage Loan, or
(ii) a sufficient escrow of funds exists for purposes of effecting such
remediation, or (iii) the related Borrower or other responsible party is
currently taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority, or (iv) the related Mortgaged Property is insured under a policy of
insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances and
conditions. Each Mortgaged Property is covered under an environmental insurance
policy, generally as and to the extent described under "Description of the
Mortgaged Property--Certain Underwriting Matters--Environmental Insurance" in
the Prospectus Supplement. To the Seller's knowledge, there are no circumstances
or conditions with respect to any Mortgaged Property not revealed in the related
Environmental Report, if any, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage encumbering each
Mortgaged Property requires the related Borrower to comply with all applicable
federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and there is no valid defense,
counterclaim or right of offset or rescission available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements.
14. Insurance. Except in certain cases, where tenants (having a net
worth of at least $50,000,000 or an investment grade credit rating) with the
obligation to maintain the insurance described in this paragraph are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured against loss by hazards
of extended coverage in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
replacement cost of the improvements located on the related Mortgaged Property,
and if applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption insurance
policy providing coverage for at least six months (or a specified dollar amount
which, in the reasonable judgement of the Seller, will cover no less than six
months of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the origination of such
Mortgage Loan, in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards, and flood insurance
was available, a flood insurance policy meeting any requirements of the then
current guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the outstanding principal balance of such Mortgage
Loan, (2) the full insurable value of such Mortgaged Property, and (3) the
maximum amount of insurance available under the National Flood Insurance Act of
1968, as amended. All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without ten (10) days' prior
written notice to the
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<PAGE>
mortgagee and all premiums payable thereon as of the Closing Date, whether
annual or otherwise, have been paid. Each Mortgaged Property securing a Mortgage
Loan is also covered by comprehensive general liability insurance in an amount
at least equal to $1 million per occurrence. With respect to each Mortgage Loan,
the related Mortgage requires that the related Borrower maintain insurance as
described above or permits the Mortgagee to require insurance as described
above. No notice of termination, cancellation or reduction has been received by
the Seller with respect to any such hazard, flood or liability insurance policy.
Except under circumstances that would be reasonably acceptable to a prudent
commercial mortgage lender or that would not otherwise materially and adversely
affect the security intended to be provided by the related Mortgage, the
Mortgage for each Mortgage Loan provides that proceeds paid under any such
casualty insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage may entitle the related Borrower to any portion of such proceeds
remaining after the repair or restoration of the related Mortgaged Property and
payment of amounts due under the Mortgage Loan; and provided further that if the
related Borrower holds a leasehold interest in the related Mortgaged Property,
the application of such proceeds will be subject to the terms of the related
Ground Lease (as defined in Paragraph 18 below).
15. Taxes and Assessments. To the Seller's knowledge, there are no
delinquent taxes or assessments or other outstanding charges affecting any
Mortgaged Property securing a Mortgage Loan which are a lien of priority equal
to or higher than the lien of the related Mortgage that are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments shall not
be considered unpaid until the date on which interest and/or penalties would be
payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is, to
the Seller's knowledge, a debtor in any state or federal bankruptcy or
insolvency proceeding.
17. Local Law Compliance. To the Seller's knowledge, based on due
diligence customarily undertaken by prudent commercial mortgage lenders, the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if any
such improvement does not so comply or does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property.
18. Leasehold Estate Only. If a Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from the ground lessor, a
"Ground Lease"), but not by the related fee interest in such Mortgaged Property
or such material portion thereof (the "Fee Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage;
and there has been no material change in the terms of such
Ground Lease since its recordation, with the exception of
written instruments which are a part of the related Mortgage
File;
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(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld) and, in the event that it is so
assigned, is further assignable to the Purchaser and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) At the date of origination of the Mortgage Loan, such Ground
Lease was in full force and effect, and the Seller has not
received as of the Closing Date actual notice that any
material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under
such Mortgage Loan (provided that such mortgageehas provided
the lessor with notice of its lien in accordance with the
provisions of such Ground Lease), and such Ground Lease
further provides that no notice of termination given under
such Ground Lease is effective against such mortgagee unless a
copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(f) Either (i) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the mortgagee
under such Mortgage Loan or (ii) such mortgagee is permitted a
reasonable opportunity (including, where necessary, sufficient
time to gain possession of the interest of the lessee under
such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such
Ground Lease;
(g) Such Ground Lease either (i) has an original term which
extends not less than ten years beyond the Stated Maturity
Date of such Mortgage Loan or (ii) has an original term which
does not end prior to the third anniversary of the Stated
Maturity Date of such Mortgage Loan and has extension options
that, if exercised, would cause the term of such Ground Lease
to extend not less than ten years beyond the Stated Maturity
Date of the related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new
lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds (other than in
respect of a total or substantially total loss or taking) will
be applied either (i) to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee
under such Mortgage Loan or a
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trustee appointed by it having the right to hold and disburse
such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the outstanding principal
balance of such Mortgage Loan together with any accrued
interest thereon;
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable
by a prudent commercial mortgage lender; and such Ground Lease
contains a covenant that the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb
the possession, interest or quiet enjoyment of any lessee in
the relevant portion of the Mortgaged Property subject to such
Ground Lease for any reason, or in any manner, which would
materially adversely affect the security provided by the
related Mortgage;
(k) Such Ground Lease may not be amended or modified without the
prior consent of the mortgagee under such Mortgage Loan, and
any such action without such consent is not binding on such
mortgagee, its successors or assigns;
(l) Unless otherwise set forth in such Ground Lease, such Ground
Lease does not permit any increase in the amount of rent
payable by the ground lessee thereunder during the term of
such Mortgage Loan; and
(m) The terms of such Ground Lease have not been waived, modified,
satisfied, impaired, canceled, subordinated or rescinded in
any manner which materially interferes with the security
intended to be provided by the related Mortgage.
19. Leasehold Estate and Fee Interest. If any Mortgage Loan is
secured in whole or in part by the interest of the related Borrower under a
Ground Lease and by the related Fee Interest:
(a) Such Fee Interest is subject, and subordinated of record, to
the related Mortgage; and the related Mortgage does not by its
terms provide that it will be subordinated to the lien of any
other mortgage or other lien upon such Fee Interest; and
(b) Upon occurrence of a default under the terms of the related
Mortgage by the Borrower, the mortgagee has the right to
foreclose upon or otherwise exercise its rights with respect
to such Fee Interest within a period of time that would not
have been viewed, as of the date of origination, as
commercially unreasonable by a prudent commercial mortgage
lender.
20. Credit Lease. With respect to the Mortgage Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as Kaiser Permanente
Office Building (the "CTL Loan"):
(a) The related Mortgaged Property is subject to a lease (a
"Credit Lease") with a tenant (a "Credit Tenant") that has a
public senior unsecured long-term debt or similar rating
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or a privately issued shadow rating of at least "BBB" (or the
equivalent) by at least one nationally recognized statistical
rating organization;
(b) The lease payments due under the related Credit Lease,
together with any escrow payments held by the Seller or its
designee, are equal to or greater than the payments due with
respect to the CTL Loan (or an escrow has been established to
cover the difference);
(c) After giving effect to the direct payment or reimbursement for
certain operating and capital expenditures by the Credit
Tenant, the related Borrower does not have monetary
obligations under the related Credit Lease, and every monetary
obligation associated with managing, owning, developing and
operating the leased property, including, but not limited to,
the costs associated with utilities, taxes, insurance,
maintenance and repairs is an obligation of the Credit Tenant,
except for those monetary obligations that have been reserved
for and except as set forth on Schedule C-1;
(d) As of the origination date of the CTL Loan, the related
Borrower has represented that there is no default of any
nonmonetary obligations under the related Credit Lease, a
breach of which would give the Credit Tenant the right under
the Credit Lease to terminate the Credit Lease;
(e) As of the origination date of the CTL Loan, the related
Borrower has not breached any representation or warranty in
the related Credit Lease, which would result in the
termination of, or an offset or abatement with respect to, the
related Credit Lease;
(f) The related Credit Tenant cannot terminate or abate rental
payments under the related Credit Lease for any reason prior
to the payment in full of: (i) the principal balance of the
CTL Loan; (ii) all accrued and unpaid interest on the CTL
Loan; and (iii) any other sums due and payable under the CTL
Loan, as of the termination date, which date is a rent payment
date, except for a material default by the related Borrower
under the related Credit Lease or due to a casualty or
condemnation event;
(g) The CTL Loan has the benefit of a Lease Enhancement Policy,
the required premiums on such policy have been paid, and such
policy is non-cancelable (subject to customary exceptions);
(h) In the event the related Credit Tenant assigns or sublets the
related leased property, such Credit Tenant remains obligated
under the related Credit Lease;
(i) The related Credit Tenant has agreed to indemnify the related
Borrower from any claims of any nature other than the acts or
omissions of the related Borrower, (i) to which the related
Borrower is subject because of such Borrower's estate in the
leased property, or (ii) arising from (A) injury to or death
of any person or damage to or loss of property on the leased
property or connected with the use, condition or occupancy
M-1-8
<PAGE>
of the leased property, (B) the related Credit Tenant's
violation of the related Credit Lease, or (C) any act or
omission of the related Credit Tenant;
(j) The related Credit Tenant has agreed to indemnify the related
Borrower from any claims of any nature arising as a result of
any hazardous material affecting the leased property and due
to the related Credit Tenant's use of the leased property.
(k) As of the date of the estoppel letter signed by the related
Credit Tenant, no default by the related Borrower or Credit
Tenant had occurred under the related Credit Lease, and, to
the Seller's knowledge, there is no existing condition which,
but for the passage of time or the giving of notice, or both,
would result in a default under the terms of the related
Credit Lease;
(l) The related Credit Lease is in full force and effect, and is a
legal, valid, binding and enforceable agreement of the related
Credit Tenant (subject to the exceptions set forth in
Paragraph 13 above);
(m) No Person owns any interest in any payments due under the
related Credit Lease other than the Borrower and the Seller
(which interest is being conveyed hereunder);
(n) The Credit Lease provides the related Borrower and the
mortgagee under the CTL Loan with time and opportunity to cure
any default that could give the Credit Tenant the right to
abate rent or terminate the Credit Lease;
(o) The CTL Loan provides that the related Credit Lease cannot be
modified without the consent of the lender thereunder;
(p) There is no right of rescission, offset, abatement,
diminution, defense or counterclaim to the related Credit
Lease, nor will the operation of any of the terms of the
related Credit Lease, or the exercise of any rights
thereunder, render the related Credit Lease unenforceable, in
whole or in part, or subject to any right of rescission,
offset, abatement, diminution, defense or counterclaim;
(q) The related Borrower is required under the CTL Loan to direct
the related Credit Tenant to make all rental payments directly
to the mortgagee, its successors and assigns;
(r) The CTL Loan contains provisions which obligate the related
Borrower to exercise the rights and remedies of the lessor
under the related Credit Lease;
(s) The related Credit Lease has an original term ending on or
after the final maturity of the CTL Loan; and
(t) The CTL Loan is fully-amortizing over its original term, or is
insured by a non-cancellable residual value insurance policy
that (subject to certain conditions) pays the
M-1-9
<PAGE>
amount of the unamortized principal balance, to the extent not
repaid by the Borrower, on the final payment date under the
related Credit Lease.
21. Escrow Deposits. With respect to escrow deposits and payments
relating to any Mortgage Loan, all such payments have been delivered or will be
delivered in accordance with the terms of the Pooling and Servicing Agreement to
the Master Servicer.
22. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code.
23. Advancement of Funds. No holder of a Mortgage Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property (other than amounts
paid by the tenant as specifically provided under related lease), directly or
indirectly, for the payment of any amount required by such Mortgage Loan, except
for interest accruing from the date of origination of such Mortgage Loan or the
date of disbursement of the Mortgage Loan proceeds, whichever is later, to the
date which preceded by 30 days the first due date under the related Mortgage
Note.
24. Equity Interest. No Mortgage Loan is automatically convertible
into an equity ownership interest in the related Mortgaged Property or the
related Borrower.
25. Legal Proceedings. To the Seller's knowledge, there are no
pending or threatened actions, suits or proceedings by or before any court or
governmental authority against or affecting the Borrower under any Mortgage Loan
or the related Mortgaged Property that, if determined adversely to such Borrower
or Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property or the ability of the Borrower to pay principal, interest or
any other amounts due under such Mortgage Loan.
26. Other Mortgage Liens. Except as otherwise described under
"Description of the Mortgage Pool--Additional Loan and Property
Information--Additional and Other Financing" in the Prospectus Supplement, none
of the Mortgage Loans permits the related Mortgaged Property to be encumbered by
any mortgage lien junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof. To the
Seller's knowledge, except as otherwise specified under "Description of the
Mortgage Pool--Additional Loan and Property Information--Additional and Other
Financing" in the Prospectus Supplement, and except for cases involving other
Mortgage Loans, the Mortgaged Properties are not encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgages.
27. No Mechanics' Liens. To the Seller's knowledge, (a) each
Mortgaged Property securing a Mortgage Loan is free and clear of any and all
mechanics' and materialmen's liens that are not bonded or escrowed for or
affirmatively covered by title insurance, and (b) no rights are outstanding that
under law could give rise to any such lien that would be prior or equal to the
lien of the related Mortgage unless insured against under the related Title
Policy. The Seller has not received notice with respect to any Mortgage Loan
that any mechanics' and materialmen's liens have encumbered the related
Mortgaged Property since origination that have not been released, bonded or
escrowed for or affirmatively covered by title insurance.
M-1-10
<PAGE>
28. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
29. Licenses and Permits. To the Seller's knowledge, based on due
diligence customarily performed by commercially reasonable lenders in the
origination of comparable mortgage loans, as of the date of origination of each
Mortgage Loan, (i) the related Borrower was in possession of all material
licenses, permits and authorizations required by applicable law for the
ownership of the related Mortgaged Property and (ii) all such licenses, permits
and authorizations were valid and in full force and effect.
30. Servicing Practices. The servicing and collection practices used
with respect to the Mortgage Loans have in all material respects been legal and
met customary standards utilized by prudent institutional commercial and
multifamily mortgage loan servicers with respect to "whole loans".
31. Cross-collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
32. Releases of Mortgaged Property. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
U.S. Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or, in the case of a Cross-Collateralized Group, the release
of one or more related Mortgaged Properties upon (i) the satisfaction of certain
legal and underwriting requirements and (ii) the payment of a release price and
prepayment consideration in connection therewith; and provided, further, that
certain Cross-Collateralized Groups of Mortgage Loans may permit the related
Borrower to obtain the release of one or more of the related Mortgaged
Properties by substituting comparable real estate property, subject to, among
other conditions precedent, receipt of confirmation from each Rating Agency that
such release and substitution will not result in a qualification, downgrade or
withdrawal of any of its then-current ratings of the Certificates. Each Mortgage
loan that contains a provision for any defeasance of mortgage collateral permits
defeasance (i) no earlier than two years following the Closing Date, (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) and (iii) to the Seller's
knowledge, only for the purpose of facilitating the disposition of mortgaged
real property and not as part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
33. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provide for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that during the period commencing on or about the Anticipated Repayment Date and
continuing until such Mortgage Loan is paid in full, (i) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (ii) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
M-1-11
<PAGE>
34. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
35. Inspection. In connection with the origination of each Mortgage
Loan (other than the Third Party Mortgage Loans), the Seller inspected, or
caused the inspection of, the related Mortgaged Property.
36. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Exhibit C.
37. Due-on-Sale. Subject to exceptions set forth in the related
Mortgage, such Mortgage contains a "due-on-sale" clause that provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder, the Mortgaged Property
subject to such Mortgage, or any controlling interest in the related Borrower,
is directly or indirectly transferred or sold.
38. Single Purpose Entity. The Borrower on each Mortgage Loan that,
individually or together with the Mortgage Loans of affiliated Borrowers,
represented 5% or more of the Initial Pool Balance, was, as of the origination
of the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single
Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
39. Delivery of Mortgage File. The Seller has delivered to the
Trustee or a Custodian appointed thereby, with respect to each Mortgage Loan, in
accordance with Section 2 of this Agreement, a complete Mortgage File.
40. Whole Loan. Each Mortgage loan is a whole loan and not a
participation interest in a mortgage loan.
41. No Waivers. The Seller has not waived any material default,
breach, violation or event of acceleration existing under the Mortgage or
Mortgage Note for any Mortgage Loan, except by a written
M-1-12
<PAGE>
instrument contained in the related Mortgage File, which instrument has been
taken into account by the Seller when giving the representations and warranties
set forth herein.
42. Tax Parcels. Except as described on Schedule C-2, each Mortgaged
Property constitutes one or more complete separate tax lots or is subject to an
endorsement under the related Title Policy or in certain instances an
application has been made to the applicable governing authority for creation of
separate tax lots which shall be effective for the next tax year.
43. ARD Loans. As of the Closing Date, each ARD Loan requires
scheduled monthly payments of principal. If any ARD Loan is not paid in full by
its Anticipated Repayment Date, and assuming it is not otherwise in default, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate").
44. Security Interests. In connection with the operation of any
Mortgaged Property as either (i) a hospitality property or (ii) an
independent/assisted living or healthcare facility, the security agreements,
financing statements or other instruments, if any, related to the corresponding
Mortgage Loan establish and create a valid security interest in all items of
personal property owned by the related Borrower material to the conduct in the
ordinary course of the Borrower's business conducted on the related Mortgaged
Property, subject only to purchase money security interests and security
interests to secure revolving lines of credit and similar financing. The related
assignment of such security interest executed and delivered in favor of the
Trustee constitutes a legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
45. Factors that may Affect Coverage Under the Related Environmental
Insurance Policy. With respect to the Mortgaged Properties identified on the
Mortgage Loan Schedule as Murdock Apartments, Merriwood Village Apartments,
Bri-Mar Building, Casa De Dallas Apartments, St. Charles & Prytania Street
Apartments, 244-256 Orange Place Apartments, 249 Orange Place Apartments and
Circa 1886 Building, as to which the Seller did not require an environmental
assessment in connection with the origination of the related Mortgage Loans, the
Seller: (a) did not willfully conceal or misrepresent any fact or circumstance
in the application for the related environmental insurance policy material to
the granting of coverage under such policy; (b) has not otherwise willfully
concealed from, or misrepresented to, the insurer under such environmental
insurance policy any fact or circumstance material to the granting of coverage
under such policy; (c) has not engaged in any intentional or illegal act or
omission that it knew or should have reasonably foreseen would directly result
in "Pollution Conditions" within the meaning of such environmental insurance
policy; (d) has disclosed in the application for such environmental insurance
policy all "Pollution Conditions" within the meaning of such policy known to the
Seller; and (e) has delivered to the insurer under such environmental insurance
policy copies of all engineering reports in the possession of the Seller with
respect to such Mortgaged Properties.
46. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to such Mortgage
Loan, if any, constitutes "customary prepayment penalties" within meaning of
Treasury Regulation Section 1.860G-1(b)(2).
47. Delivery of Financial Information. Except with respect to the
CTL Loan, the related Borrower covenanted under the related Mortgage Loan
documents to deliver at least annually to the mortgagee under each Mortgage Loan
an operating statement of the related Mortgaged Property.
M-1-13
<PAGE>
48. Servicing Rights. Except as set forth on Schedule C-3 or as
otherwise contemplated in this Agreement, no Person has been granted or conveyed
the right to the service any Mortgage Loan or receive any consideration in
connection therewith.
49. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee, including rating agency fees, accountant's fees and lender's
attorney's fees and expenses, in connection with the defeasance of such Mortgage
Loan.
M-1-14
<PAGE>
Schedule C-1
Credit Lease Exceptions
-- None --
M-1-15
<PAGE>
Schedule C-2
Tax Parcel Exceptions
-- None --
M-1-16
<PAGE>
Schedule C-3
Servicing Rights Exceptions
Property Name Servicer
------------- --------
West End Court GMAC Commercial Mortgage Corporation
Rolling Meadows Plaza MidNorth Financial
The Fox Glen I and II Apartments GMAC Commercial Mortgage Corporation
M-1-17
<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
CERTIFICATE OF ASSISTANT SECRETARY OF COLUMN FINANCIAL, INC.
I, Marjorie S. White, hereby certify that I am a duly appointed Assistant
Secretary of Column Financial, Inc., a Delaware Corporation ("Column"), and
further certify as follows:
1. Attached hereto as Attachment A are true, correct and complete copies
of the Articles of Incorporation and By-Laws of Column, which are in full force
and effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of Column authorizing and approving Column's execution, delivery and
performance of the Mortgage Loan Purchase and Sale Agreement, dated as of
October 5, 1999 (the "Mortgage Loan Purchase and Sale Agreement"), between DLJ
Commercial Mortgage Corp. as purchaser and Column as seller.
3. Attached hereto as Attachment C is a certificate of good standing of
Column issued by the Secretary of State of the State of Delaware issued within
ten days of the date hereof and no event (including, without limitation, any act
or omission on the part of Column) has occurred since the date thereof which has
affected the good standing of Column under the laws of the State of Delaware.
4. Each person who, as an officer or representative of Column, signed the
Mortgage Loan Purchase and Sale Agreement or any other document or certificate
delivered by or on behalf of Column prior hereto or on the date hereof in
connection with the transactions contemplated in the Mortgage Loan Purchase and
Sale Agreement, was, at the respective times of such signing and delivery, and
is as of the date hereof, duly elected or appointed, qualified and acting as
such officer or representative, and the signature of such persons appearing on
such documents are their genuine signatures.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase and Sale Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
October ___, 1999.
By: ____________________________________
Name: Marjorie S. White
Title: Secretary
M-1-18
<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
Certificate of Column Financial, Inc.
In connection with the execution and delivery by Column Financial,
Inc. ("Column") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase and Sale Agreement (the
"Agreement"), dated as of October 5, 1999, between DLJ Commercial Mortgage
Corp., as purchaser, and Column, as seller, the undersigned hereby certifies
that (i) the representations and warranties of Column in the Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) Column has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part required under the Agreement to be performed or satisfied at or prior
to the date hereof. Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Agreement.
Certified this ____ day of October, 1999.
COLUMN FINANCIAL, INC.
By: ____________________________________
Name:
Title:
M-1-19
<PAGE>
Exhibit D-3
Opinion of Counsel to the Seller
M-1-20
<PAGE>
Schedule 1
Mortgage Loan Schedule
[See Attached Schedule]
M-1-21
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Name Street Adress City County
<S> <C> <C> <C> <C>
4 The Alliance Loan
4a Shadow Creek Apartments 6715 Buenos Aires Drive North Richland Hills Tarrant
4b Copper Cove Apartments 12903 Bran Rock Drive Houston Harris
4c Hilltop Apartments 6424 Industrial Park Boulevard North Richland Hills Tarrant
4d Foxboro Apartments 10411 South Drive Houston Harris
4e The Pinnacle Apartments 146 Valley View Drive Lewisville Denton
7 2 Penn Center Plaza 1500-1540 John F. Kennedy Boulevard Philadelphia Philadelphia
10 Candlewyck Apartments 100 East Candlewyck Drive Kalamazoo Kalamazoo
11 Lakes at Palm Beach 4070 Woods Edge Circle Riviera Beach Palm Beach
12 Pensacola Place 4334 North Hazel Street Chicago Cook
13 West End Court 1255 22nd Street Northwest Washington District of
Columbia
14 The Ameriserve Loan
14a Ameriserve - Burlington, NJ 600 Commerce Drive Burlington Burlington
14b Ameriserve - Grand Rapids, MI 650 Ionia Avenue Southwest Grand Rapids Kent
17 Points East Shopping Center 7289-7361 Mentor Avenue Mentor Lake
18 Hidden Creek Apartments 1701 Marshall Road Vacaville Solano
19 800 Madison Avenue 800 Madison Avenue New York New York
21 Schaumburg Corners Shopping Center 16-60 East Golf Road Schaumburg Cook
23 Holiday Inn - Oklahoma City, OK 2101 South Meridian Avenue Oklahoma City Oklahoma
25 Canyon Parke Apartments 2222 Graycliff Drive Dallas Dallas
26 Riverview Marketplace 4077 North Main Street Fall River Bristol
30 Rolling Meadows Plaza 2827-2913 Kirchoff Road Rolling Meadows Cook
31 The Hill at Woodway 10951 Laureate Drive San Antonio Bexar
32 Shady Grove Professional Center 15001 Shady Grove Road Rockville Montgomery
35 Country Oaks Apartments 3865 Kirby Parkway Memphis Shelby
38 Centerpoint Corporate Center 2001 Centerpoint Parkway Pontiac Oakland
40 Tantara Club Apartments 7784 College Circle North Richland Hills Tarrant
42 Arrowhead Shopping Center 20165 North 67th Avenue Glendale Maricopa
45 American Crossing Shopping Center 3101 and 3035 Menaul Boulevard Albuquerque Bernalillo
Northeast
46 Kaiser Permanente Office Building (2) 4330 East Mira Loma Avenue Anaheim Orange
48 Crossroads Shopping Center 901 North Carpenter Road Modesto Stanislaus
50 The Palm Breezes Club Manufactured Home 3500 West Lantana Road Lantana Palm Beach
Community
51 Majestic Shopping Center 2910, 2986 and 2990 Center Road Hampton Bay
54 Mt. Olive Centre NC Highway 55 and US Highway 117 Mt. Olive Wayne
55 Applegate Square Shopping Center 29649 Northwestern Highway Southfield Oakland
57 Waters of Winrock Apartments 6403 Del Monte Drive Houston Harris
58 Garden Wood Apartments 4787 Garden Grove Cove Memphis Shelby
60 Ashton Woods Apartments 2215-2319 South First Street Champaign Champaign
61 Kmart Shopping Center - Milford 120-128 Medway Street Milford Worcester
66 The Fox Glen I and II Apartments 5902-5920 Cross Country Boulevard, Baltimore Baltimore
2800-2912 Glen Avenue & 3114-3132
Parkington Avenue
67 Lake Howard Heights Retirement 650 North Lake Howard Drive Winter Haven Polk
69 Batavia Palms Business Center 2322-2328 North Batavia Street Orange Orange
71 Creekside Apartments (1B) 2939-3009 12th Avenue Southwest Cedar Rapids Linn
72 Brookside Apartments (1B) 1040-1138 Patrick Court Waterloo Blackhawk
73 Glenbrook Centre Apartments (1B) 4341-4353 1st Avenue Southeast & 11 Cedar Rapids Linn
Glenbrook Drive Southeast
74 Hardwick Apartments (1B) 1804-1806 Second Street Southwest Rochester Olmsted
75 Sequoia Bend Apartments 601 Brown Trail Hurst Tarrant
77 Tenth Street Medical Building 1450 Tenth Street Santa Monica Los Angeles
82 Villa Reanna Apartments 1924 West Pensacola Street Tallahassee Leon
<CAPTION>
# Loan/Property Name State Zip Originator Original Loan Cut-Off
Code Balance Date
Balance
<S> <C> <C> <C> <C>
4 The Alliance Loan Column 38,400,000 38,336,336
4a Shadow Creek Apartments TX 76180
4b Copper Cove Apartments TX 77082
4c Hilltop Apartments TX 76180
4d Foxboro Apartments TX 77099
4e The Pinnacle Apartments TX 75067
7 2 Penn Center Plaza PA 19102 Column 33,500,000 33,478,985
10 Candlewyck Apartments MI 49001 Column 19,000,000 18,988,057
11 Lakes at Palm Beach FL 33410 Column 17,000,000 16,971,978
12 Pensacola Place IL 60613 Column 15,350,000 15,339,574
13 West End Court DC 20037 Column 15,300,000 15,289,713
14 The Ameriserve Loan Column 15,100,000 15,090,871
14a Ameriserve - Burlington, NJ NJ 08016
14b Ameriserve - Grand Rapids, MI MI 49503
17 Points East Shopping Center OH 44060 Column 13,500,000 13,478,068
18 Hidden Creek Apartments CA 95687 Column 12,350,000 12,328,507
19 800 Madison Avenue NY 10021 Column 11,400,000 11,381,263
21 Schaumburg Corners Shopping Center IL 60173 Column 9,500,000 9,494,101
23 Holiday Inn - Oklahoma City, OK OK 73108 Column 8,700,000 8,691,817
25 Canyon Parke Apartments TX 75228 Column 8,400,000 8,394,611
26 Riverview Marketplace MA 02720 Column 8,250,000 8,243,791
30 Rolling Meadows Plaza IL 60008 Column 7,800,000 7,794,903
31 The Hill at Woodway TX 78249 Union Capital 7,343,000 7,322,860
32 Shady Grove Professional Center MD 20850 Column 7,200,000 7,195,390
35 Country Oaks Apartments TN 38115 Column 7,100,000 7,081,893
38 Centerpoint Corporate Center MI 48341 Column 6,600,000 6,593,019
40 Tantara Club Apartments TX 76180 Column 6,400,000 6,395,843
42 Arrowhead Shopping Center AZ 85308 Column 6,300,000 6,290,411
45 American Crossing Shopping Center NM 87107 Column 5,800,000 5,796,241
46 Kaiser Permanente Office Building (2) CA 92807 Column 5,400,000 5,389,861
48 Crossroads Shopping Center CA 95351 Column 5,200,000 5,196,882
50 The Palm Breezes Club Manufactured Home FL 33462 Union Capital 5,100,000 5,091,471
Community
51 Majestic Shopping Center MI 48708 Column 5,000,000 4,994,798
54 Mt. Olive Centre NC 28365 Column 4,800,000 4,794,811
55 Applegate Square Shopping Center MI 48034 Column 4,700,000 4,695,468
57 Waters of Winrock Apartments TX 77057 Union Capital 4,472,127 4,468,603
58 Garden Wood Apartments TN 38134 Column 4,350,000 4,342,451
60 Ashton Woods Apartments IL 61820 Column 4,300,000 4,297,091
61 Kmart Shopping Center - Milford MA 01757 Column 4,300,000 4,293,445
66 The Fox Glen I and II Apartments MD 21215 Column 3,900,000 3,897,588
67 Lake Howard Heights Retirement FL 33881 Column 3,830,000 3,827,680
69 Batavia Palms Business Center CA 92865 Column 3,770,000 3,767,470
71 Creekside Apartments (1B) IA 52404 Column 1,300,000 1,299,173
72 Brookside Apartments (1B) IA 50701 Column 1,005,000 1,004,360
73 Glenbrook Centre Apartments (1B) IA 52402 Column 885,000 884,437
74 Hardwick Apartments (1B) MN 55902 Column 560,000 559,644
75 Sequoia Bend Apartments TX 76053 Column 3,720,000 3,716,189
77 Tenth Street Medical Building CA 90401 Column 3,600,000 3,594,700
82 Villa Reanna Apartments FL 32304 Column 3,040,000 3,037,944
<CAPTION>
# Loan/Property Name Monthly Mortgage Original Remaining Maturity
Payment Rate Term Term Date
<S> <C> <C> <C> <C>
4 The Alliance Loan 277,228.19 7.830% 120 117 7/1/2009
4a Shadow Creek Apartments
4b Copper Cove Apartments
4c Hilltop Apartments
4d Foxboro Apartments
4e The Pinnacle Apartments
7 2 Penn Center Plaza 253,560.86 8.330% 120 119 9/1/2009
10 Candlewyck Apartments 143,676.73 8.320% 120 119 9/1/2009
11 Lakes at Palm Beach 122,966.93 7.850% 120 117 7/1/2009
12 Pensacola Place 111,991.48 7.940% 120 119 9/1/2009
13 West End Court 112,159.34 7.990% 120 119 9/1/2009
14 The Ameriserve Loan 116,212.97 8.510% 120 119 9/1/2009
14a Ameriserve - Burlington, NJ
14b Ameriserve - Grand Rapids, MI
17 Points East Shopping Center 98,118.73 7.900% 120 117 7/1/2009
18 Hidden Creek Apartments 87,710.07 7.660% 120 117 7/1/2009
19 800 Madison Avenue 82,539.25 7.860% 120 117 7/1/2009
21 Schaumburg Corners Shopping Center 72,240.39 8.380% 120 119 9/1/2009
23 Holiday Inn - Oklahoma City, OK 71,113.20 8.680% 120 119 9/1/2009
25 Canyon Parke Apartments 62,929.32 8.220% 84 83 9/1/2006
26 Riverview Marketplace 57,290.27 7.430% 120 119 9/1/2009
30 Rolling Meadows Plaza 57,942.09 8.130% 120 119 9/1/2009
31 The Hill at Woodway 50,092.20 7.250% 120 116 6/1/2009
32 Shady Grove Professional Center 53,990.00 8.230% 120 119 9/1/2009
35 Country Oaks Apartments 49,838.84 7.540% 120 116 6/1/2009
38 Centerpoint Corporate Center 49,444.47 8.220% 120 118 8/1/2009
40 Tantara Club Apartments 47,676.73 8.160% 84 83 9/1/2006
42 Arrowhead Shopping Center 46,755.27 8.120% 120 117 7/1/2009
45 American Crossing Shopping Center 43,247.70 8.170% 120 119 9/1/2009
46 Kaiser Permanente Office Building (2) 44,699.39 7.680% 177 176 6/1/2014
48 Crossroads Shopping Center 40,167.91 8.550% 120 119 9/1/2009
50 The Palm Breezes Club Manufactured Home 36,713.40 7.800% 120 117 7/1/2009
Community
51 Majestic Shopping Center 37,668.83 8.280% 120 118 8/1/2009
54 Mt. Olive Centre 35,690.28 8.140% 120 118 8/1/2009
55 Applegate Square Shopping Center 36,305.61 8.550% 120 118 8/1/2009
57 Waters of Winrock Apartments 30,356.27 7.200% 120 119 9/1/2009
58 Garden Wood Apartments 30,923.80 7.670% 120 117 7/1/2009
60 Ashton Woods Apartments 31,432.05 7.960% 120 119 9/1/2009
61 Kmart Shopping Center - Milford 31,897.28 8.115% 120 117 7/1/2009
66 The Fox Glen I and II Apartments 29,711.67 8.400% 120 119 9/1/2009
67 Lake Howard Heights Retirement 29,449.39 8.500% 93 92 6/1/2007
69 Batavia Palms Business Center 27,662.92 8.000% 120 119 9/1/2009
71 Creekside Apartments (1B) 9,775.61 8.260% 120 119 9/1/2009
72 Brookside Apartments (1B) 7,557.30 8.260% 120 119 9/1/2009
73 Glenbrook Centre Apartments (1B) 6,654.93 8.260% 120 119 9/1/2009
74 Hardwick Apartments (1B) 4,211.03 8.260% 120 119 9/1/2009
75 Sequoia Bend Apartments 29,106.96 8.160% 84 83 9/1/2006
77 Tenth Street Medical Building 26,995.00 8.230% 120 117 7/1/2009
82 Villa Reanna Apartments 22,221.73 7.960% 120 119 9/1/2009
<CAPTION>
# Loan/Property Name Original Remaining Prepayment Defeasance Fee/
Amortization Amortization Provision (Yes/No) Leasehold
<S> <C> <C> <C> <C>
4 The Alliance Loan 360 357 L (9.5), O (0.5) Yes Fee
4a Shadow Creek Apartments
4b Copper Cove Apartments
4c Hilltop Apartments
4d Foxboro Apartments
4e The Pinnacle Apartments
7 2 Penn Center Plaza 360 359 L (9.5), O (0.5) Yes Fee
10 Candlewyck Apartments 360 359 L (9.5), O (0.5) Yes Fee
11 Lakes at Palm Beach 360 357 L (9.5), O (0.5) Yes Fee
12 Pensacola Place 360 359 L (9.5), O (0.5) Yes Fee
13 West End Court 360 359 L (9.5), O (0.5) Yes Fee
14 The Ameriserve Loan 360 359 L (9.75), O Yes Fee
(0.25)
14a Ameriserve - Burlington, NJ
14b Ameriserve - Grand Rapids, MI
17 Points East Shopping Center 360 357 L (9.5), O (0.5) Yes Fee
18 Hidden Creek Apartments 360 357 L (9.5), O (0.5) Yes Fee
19 800 Madison Avenue 360 357 L (9.5), O (0.5) Yes Fee
21 Schaumburg Corners Shopping Center 360 359 L (9.5), O (0.5) Yes Fee
23 Holiday Inn - Oklahoma City, OK 300 299 L (9.5), O (0.5) Yes Fee
25 Canyon Parke Apartments 360 359 L (6.75), O Yes Fee
(0.25)
26 Riverview Marketplace 360 359 L (9.5), O (0.5) Yes Fee
30 Rolling Meadows Plaza 360 359 L (9.5), O (0.5) Yes Fee
31 The Hill at Woodway 360 356 L (9.5), O (0.5) Yes Fee
32 Shady Grove Professional Center 360 359 L (9.5), O (0.5) Yes Fee
35 Country Oaks Apartments 360 356 L (9.5), O (0.5) Yes Fee
38 Centerpoint Corporate Center 360 358 L (9.5), O (0.5) Yes Fee
40 Tantara Club Apartments 360 359 L (6.5), O (0.5) Yes Fee
42 Arrowhead Shopping Center 360 357 L (9.5), O (0.5) Yes Fee
45 American Crossing Shopping Center 360 359 L (9.5), O (0.5) Yes Fee
46 Kaiser Permanente Office Building (2) 177 176 L (14.25), O Yes Fee
(0.5)
48 Crossroads Shopping Center 360 359 L (9.5), O (0.5) Yes Fee
50 The Palm Breezes Club Manufactured Home 360 357 L (9.5), O (0.5) Yes Fee
Community
51 Majestic Shopping Center 360 358 L (9.5), O (0.5) Yes Fee
54 Mt. Olive Centre 360 358 L (9.5), O (0.5) Yes Fee
55 Applegate Square Shopping Center 360 358 L (9.5), O (0.5) Yes Fee
57 Waters of Winrock Apartments 360 359 L (9.5), O (0.5) Yes Fee
58 Garden Wood Apartments 360 357 L (9.5), O (0.5) Yes Fee
60 Ashton Woods Apartments 360 359 L (9.5), O (0.5) Yes Fee
61 Kmart Shopping Center - Milford 360 357 L (9.5), O (0.5) Yes Fee
66 The Fox Glen I and II Apartments 360 359 L (9.5), O (0.5) Yes Fee
67 Lake Howard Heights Retirement 360 359 L (7.25), O Yes Fee
(0.5)
69 Batavia Palms Business Center 360 359 L (9.5), O (0.5) Yes Fee
71 Creekside Apartments (1B) 360 359 L (9.5), O (0.5) Yes Fee
72 Brookside Apartments (1B) 360 359 L (9.5), O (0.5) Yes Fee
73 Glenbrook Centre Apartments (1B) 360 359 L (9.5), O (0.5) Yes Fee
74 Hardwick Apartments (1B) 360 359 L (9.5), O (0.5) Yes Fee
75 Sequoia Bend Apartments 300 299 L (6.5), O (0.5) Yes Fee
77 Tenth Street Medical Building 360 357 L (9.5), O (0.5) Yes Fee
82 Villa Reanna Apartments 360 359 L (9.5), O (0.5) Yes Fee
<CAPTION>
# Loan/Property Name Interest
Calculation
<S> <C> <C> <C> <C>
4 The Alliance Loan Actual/360
4a Shadow Creek Apartments
4b Copper Cove Apartments
4c Hilltop Apartments
4d Foxboro Apartments
4e The Pinnacle Apartments
7 2 Penn Center Plaza Actual/360
10 Candlewyck Apartments Actual/360
11 Lakes at Palm Beach Actual/360
12 Pensacola Place Actual/360
13 West End Court Actual/360
14 The Ameriserve Loan Actual/360
14a Ameriserve - Burlington, NJ
14b Ameriserve - Grand Rapids, MI
17 Points East Shopping Center Actual/360
18 Hidden Creek Apartments Actual/360
19 800 Madison Avenue Actual/360
21 Schaumburg Corners Shopping Center Actual/360
23 Holiday Inn - Oklahoma City, OK Actual/360
25 Canyon Parke Apartments Actual/360
26 Riverview Marketplace Actual/360
30 Rolling Meadows Plaza Actual/360
31 The Hill at Woodway Actual/360
32 Shady Grove Professional Center Actual/360
35 Country Oaks Apartments Actual/360
38 Centerpoint Corporate Center Actual/360
40 Tantara Club Apartments Actual/360
42 Arrowhead Shopping Center Actual/360
45 American Crossing Shopping Center Actual/360
46 Kaiser Permanente Office Building (2) Actual/360
48 Crossroads Shopping Center Actual/360
50 The Palm Breezes Club Manufactured Home Actual/360
Community
51 Majestic Shopping Center Actual/360
54 Mt. Olive Centre Actual/360
55 Applegate Square Shopping Center Actual/360
57 Waters of Winrock Apartments Actual/360
58 Garden Wood Apartments Actual/360
60 Ashton Woods Apartments Actual/360
61 Kmart Shopping Center - Milford Actual/360
66 The Fox Glen I and II Apartments Actual/360
67 Lake Howard Heights Retirement 30/360
69 Batavia Palms Business Center Actual/360
71 Creekside Apartments (1B) Actual/360
72 Brookside Apartments (1B) Actual/360
73 Glenbrook Centre Apartments (1B) Actual/360
74 Hardwick Apartments (1B) Actual/360
75 Sequoia Bend Apartments Actual/360
77 Tenth Street Medical Building Actual/360
82 Villa Reanna Apartments Actual/360
</TABLE>
M-1-22
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Name Street Adress City County
<S> <C> <C> <C> <C>
83 Arbor Village Townhomes 6298 Ludington Drive Houston Harris
84 Park South Apartments 3711 Southwest Park South Court Topeka Shawnee
85 Deer Park Mansion 7329 Carrie Lane Deer Park Harris
86 Holiday Inn Southeast - Indianapolis, IN 5120 Victory Drive Indianapolis Marion
87 Lakeshore on the Hill 5600 Lake Resort Terrace Chattanooga Hamilton
88 Sandia Vista Shopping Center 11500 Menaul Boulevard Northeast Albuquerque Bernalillo
90 Spring Medical Building 6226 East Spring Street Long Beach Los Angeles
91 Bingo King Warehouse 1704 and 3211 Nebraska Avenue Council Bluffs Pottawattamie
94 Northland Medical Center 1000 East First Street Duluth St. Louis
95 Murdock Apartments 22210 Southwest Murdock Road Sherwood Washington
97 Chestnut Park Apartments 901-A West Silversands Drive San Antonio Bexar
101 Northern Plaza Shopping Center 740-800 Central Street Millinocket Penobscot
102 Peconic Bay Properties 27-33 and 83-93 Main Street Southampton Suffolk
103 Marketplace at Centerpoint 3999 Centerpoint Parkway Pontiac Oakland
104 New England Financial Building 19935 Ventura Boulevard Woodland Hills Los Angeles
105 Riverlawn Mobile Home Park 8215 Stoner Road Riverview Hillsborough
106 Lakeside Mobile Estates 6610 Northwest Whitney Road Vancouver Clark
107 Signature Lake Apartments 601 Josephine Street Pass Christian Harrison
110 Palmetto Trailer Park 301 North Federal Highway Hallandale Broward
115 Twinbridge Apartment Complex 201 West Blacklidge Street Tucson Pima
116 Marmion Royal Apartments 5800 Marmion Way Los Angeles Los Angeles
117 TYIF Park Condominiums 4315 South Kirkwood Houston Harris
118 Tilbury Garden Apartments 7806-7820 Tilbury Street Bethesda Montgomery
119 The Sanitas Building 3125 Sterling Circle Boulder Boulder
120 2516-2526 North Kedzie Boulevard 2516-2526 North Kedzie Boulevard Chicago Cook
121 Old South Apartments 812 Shaver Road Pasadena Harris
122 Whitfield Village Apartments 6509-6549 Magellan Court Sarasota Manatee
123 Rancocas Valley Professional Arts Building 220 Sunset Road Willingboro Burlington
124 Arbor Village South Apartments 1829 East 8th Street Anderson Madison
127 Quail Point 1934 Rutland Drive Austin Travis
128 Merriwood Village Apartments 3224 Janet Drive Amarillo Randall
129 85 Old Long Ridge Road 85 Old Long Ridge Road Stamford Fairfield
130 Pavilion Plaza 2168 Diamond Hill Road Woonsocket Providence
131 Avon Manor Apartments 16840 Telegraph Road Detroit Wayne
132 20/20 Greenville Retail Center 2100 Greenville Avenue Dallas Dallas
133 Westover Apartments 5705, 5711and 5717 North Washington Arlington Arlington
Boulevard, 111 North Kensington, 5716
North 11th Road
134 East 29th Street Apartments (1C) 710, 722 and 811 East 29th Street Norfolk Norfolk City
135 Chesapeake Drive Apartments (1C) 2011 Chesapeake Drive Chesapeake Chesapeake City
136 Sandalwood Square 4325 North 23rd Street Phoenix Maricopa
137 1200 Medical Building 1200 East Genesee Steet Syracuse Onodaga
138 1416 Apartments (1D) 803 South 15th and 810 South 14th Street Tacoma Pierce
139 1419 Apartments (1D) 1405-1421 South 'J' Street Tacoma Pierce
140 Groton Fashion Plaza 970-992 Poquonnock Road Groton New London
141 Scioto Fairway Woods Apartments 3274 Mapleway Court Columbus Franklin
142 Park Garden Apartments 1701 Rogers Road Fort Worth Tarrant
143 Glenrose Square Apartments 802 Castleglen Drive Garland Dallas
144 Blue Gem Mobile Home Park 6560 Pyramid Lake Highway Sparks Washoe
145 Bri-Mar Building 6365 Carlson Drive Eden Prairie Hennepin
146 244-256 Orange Place (1E) 244-256 Orange Place Plainfield Union
147 249 Orange Place Apartments (1E) 247-253 Orange Place Plainfield Union
148 Casa De Dallas Apartments 1712 Howard Road Madera Madera
<CAPTION>
# Loan/Property Name State Zip Originator Original Loan Cut-Off
Code Balance Date
Balance
<S> <C> <C> <C> <C> <C> <C>
83 Arbor Village Townhomes TX 77035 Column 3,040,000 3,036,687
84 Park South Apartments KS 66609 Column 3,030,000 3,027,197
85 Deer Park Mansion TX 77536 Column 2,900,000 2,868,396
86 Holiday Inn Southeast - Indianapolis, IN IN 46203 Column 2,850,000 2,847,394
87 Lakeshore on the Hill TN 37415 Column 2,800,000 2,794,974
88 Sandia Vista Shopping Center NM 87112 Column 2,750,000 2,746,038
90 Spring Medical Building CA 90815 Column 2,700,000 2,698,264
91 Bingo King Warehouse IA 51501 Column 2,700,000 2,695,531
94 Northland Medical Center MN 55802 Column 2,425,000 2,418,243
95 Murdock Apartments OR 97140 Column 2,250,000 2,248,487
97 Chestnut Park Apartments TX 78216 Column 2,150,000 2,147,625
101 Northern Plaza Shopping Center ME 04462 Column 2,000,000 1,998,361
102 Peconic Bay Properties NY 11968 Column 2,000,000 1,995,206
103 Marketplace at Centerpoint MI 48341 Column 1,950,000 1,948,104
104 New England Financial Building CA 91364 Column 1,925,000 1,923,162
105 Riverlawn Mobile Home Park FL 33569 Union Capital 1,920,000 1,917,042
106 Lakeside Mobile Estates WA 98665 Union Capital 1,900,000 1,898,779
107 Signature Lake Apartments MS 39571 Column 1,900,000 1,896,804
110 Palmetto Trailer Park FL 33008 Column 1,800,000 1,798,127
115 Twinbridge Apartment Complex AZ 85705 Column 1,740,000 1,737,222
116 Marmion Royal Apartments CA 90042 Column 1,730,000 1,727,507
117 TYIF Park Condominiums TX 77072 Column 1,690,000 1,687,357
118 Tilbury Garden Apartments MD 20814 Column 1,610,000 1,608,297
119 The Sanitas Building CO 80301 Column 1,600,000 1,597,468
120 2516-2526 North Kedzie Boulevard IL 60647 Column 1,575,000 1,572,773
121 Old South Apartments TX 77506 Column 1,500,000 1,497,345
122 Whitfield Village Apartments FL 34243 Column 1,500,000 1,493,566
123 Rancocas Valley Professional Arts Building NJ 08046 Column 1,470,000 1,468,676
124 Arbor Village South Apartments IN 46012 Column 1,450,000 1,449,105
127 Quail Point TX 78758 Column 1,365,000 1,363,123
128 Merriwood Village Apartments TX 79109 Column 1,350,000 1,348,592
129 85 Old Long Ridge Road CT 06903 Column 1,350,000 1,347,976
130 Pavilion Plaza RI 02895 Column 1,350,000 1,347,747
131 Avon Manor Apartments MI 48219 Column 1,350,000 1,347,246
132 20/20 Greenville Retail Center TX 75206 Column 1,345,000 1,343,824
133 Westover Apartments VA 22205 Column 1,300,000 1,298,302
134 East 29th Street Apartments (1C) VA 23504 Column 851,000 850,200
135 Chesapeake Drive Apartments (1C) VA 23324 Column 414,000 413,611
136 Sandalwood Square AZ 85015 Column 1,250,000 1,248,760
137 1200 Medical Building NY 13210 Column 1,200,000 1,198,912
138 1416 Apartments (1D) WA 98405 Column 630,000 629,428
139 1419 Apartments (1D) WA 98405 Column 530,000 529,519
140 Groton Fashion Plaza CT 06340 Column 1,050,000 1,048,219
141 Scioto Fairway Woods Apartments OH 43204 Column 1,050,000 1,043,928
142 Park Garden Apartments TX 76107 Column 1,025,000 1,022,019
143 Glenrose Square Apartments TX 75043 Column 1,010,000 1,009,374
144 Blue Gem Mobile Home Park NV 89436 Union Capital 1,000,000 998,838
145 Bri-Mar Building MN 55346 Column 992,000 989,128
146 244-256 Orange Place (1E) NJ 07060 Column 500,000 499,253
147 249 Orange Place Apartments (1E) NJ 07060 Column 475,000 474,291
148 Casa De Dallas Apartments CA 93637 Column 960,000 959,387
<CAPTION>
# Loan/Property Name Monthly Mortgage Original Remaining Maturity
Payment Rate Term Term Date
<S> <C> <C> <C> <C> <C> <C>
83 Arbor Village Townhomes 22,540.00 8.110% 120 118 8/1/2009
84 Park South Apartments 24,972.74 8.780% 300 299 9/1/2024
85 Deer Park Mansion 20,297.08 7.510% 120 104 6/1/2008
86 Holiday Inn Southeast - Indianapolis, IN 23,625.03 8.850% 120 119 9/1/2009
87 Lakeshore on the Hill 22,642.29 7.550% 120 119 9/1/2009
88 Sandia Vista Shopping Center 20,756.58 8.300% 120 117 7/1/2009
90 Spring Medical Building 20,208.32 8.210% 120 119 9/1/2009
91 Bingo King Warehouse 22,014.73 8.650% 120 118 8/1/2009
94 Northland Medical Center 19,052.46 8.460% 120 116 6/1/2009
95 Murdock Apartments 16,494.02 7.990% 120 119 9/1/2009
97 Chestnut Park Apartments 15,865.96 8.060% 120 118 8/1/2009
101 Northern Plaza Shopping Center 13,306.05 7.000% 109 108 10/1/2008
102 Peconic Bay Properties 16,239.54 8.600% 120 117 7/1/2009
103 Marketplace at Centerpoint 15,021.46 8.520% 120 118 8/1/2009
104 New England Financial Building 15,617.55 8.590% 120 119 9/1/2009
105 Riverlawn Mobile Home Park 14,195.50 8.080% 120 117 7/1/2009
106 Lakeside Mobile Estates 14,220.67 8.210% 120 119 9/1/2009
107 Signature Lake Apartments 13,651.24 7.780% 120 117 7/1/2009
110 Palmetto Trailer Park 13,560.78 8.280% 120 118 8/1/2009
115 Twinbridge Apartment Complex 12,719.02 7.960% 120 117 7/1/2009
116 Marmion Royal Apartments 13,057.77 8.300% 120 117 7/1/2009
117 TYIF Park Condominiums 12,435.98 8.030% 120 117 7/1/2009
118 Tilbury Garden Apartments 12,061.45 8.220% 120 118 8/1/2009
119 The Sanitas Building 11,729.08 7.990% 120 117 7/1/2009
120 2516-2526 North Kedzie Boulevard 11,954.47 8.360% 120 117 7/1/2009
121 Old South Apartments 10,591.12 7.600% 120 117 7/1/2009
122 Whitfield Village Apartments 13,093.40 8.580% 240 237 7/1/2019
123 Rancocas Valley Professional Arts Building 12,275.84 8.940% 120 119 9/1/2009
124 Arbor Village South Apartments 11,056.89 8.410% 120 119 9/1/2009
127 Quail Point 10,447.34 8.450% 120 117 7/1/2009
128 Merriwood Village Apartments 10,161.09 8.270% 120 118 8/1/2009
129 85 Old Long Ridge Road 10,066.27 8.170% 120 117 7/1/2009
130 Pavilion Plaza 10,970.82 8.610% 120 118 8/1/2009
131 Avon Manor Apartments 10,265.74 8.380% 120 116 6/1/2009
132 20/20 Greenville Retail Center 11,397.92 9.120% 120 119 9/1/2009
133 Westover Apartments 10,097.40 8.610% 120 117 7/1/2009
134 East 29th Street Apartments (1C) 6,628.07 8.640% 120 118 8/1/2009
135 Chesapeake Drive Apartments (1C) 3,224.47 8.640% 120 118 8/1/2009
136 Sandalwood Square 9,567.16 8.450% 120 118 8/1/2009
137 1200 Medical Building 9,988.31 8.900% 120 119 9/1/2009
138 1416 Apartments (1D) 5,239.56 8.890% 120 119 9/1/2009
139 1419 Apartments (1D) 4,407.89 8.890% 120 119 9/1/2009
140 Groton Fashion Plaza 8,476.12 8.530% 120 118 8/1/2009
141 Scioto Fairway Woods Apartments 9,805.37 7.620% 180 178 8/1/2014
142 Park Garden Apartments 8,979.70 8.630% 240 238 8/1/2019
143 Glenrose Square Apartments 7,687.43 8.390% 120 119 9/1/2009
144 Blue Gem Mobile Home Park 7,247.22 7.870% 120 118 8/1/2009
145 Bri-Mar Building 8,709.53 8.660% 120 118 8/1/2009
146 244-256 Orange Place (1E) 4,505.06 9.020% 120 119 9/1/2009
147 249 Orange Place Apartments (1E) 4,279.81 9.020% 120 119 9/1/2009
148 Casa De Dallas Apartments 7,205.41 8.240% 120 119 9/1/2009
<CAPTION>
# Loan/Property Name Original Remaining Prepayment Defeasance Fee/
Amortization Amortization Provision (Yes/No) Leasehold
<S> <C> <C> <C> <C> <C>
83 Arbor Village Townhomes 360 358 L (9.5), O (0.5) Yes Fee
84 Park South Apartments 300 299 L (24.5), O Yes Fee
(0.5)
85 Deer Park Mansion 360 344 L (9.5), O (0.5) Yes Fee
86 Holiday Inn Southeast - Indianapolis, IN 300 299 L (9.5), O (0.5) Yes Fee
87 Lakeshore on the Hill 240 239 L (9.5), O (0.5) Yes Fee
88 Sandia Vista Shopping Center 360 357 L (9.5), O (0.5) Yes Fee
90 Spring Medical Building 360 359 L (9.5), O (0.5) Yes Fee
91 Bingo King Warehouse 300 298 L (9.5), O (0.5) Yes Fee
94 Northland Medical Center 324 320 L (9.5), O (0.5) Yes Fee
95 Murdock Apartments 360 359 L (9.5), O (0.5) Yes Fee
97 Chestnut Park Apartments 360 358 L (9.5), O (0.5) Yes Fee
101 Northern Plaza Shopping Center 360 359 L (8.58), O Yes Fee
(0.5)
102 Peconic Bay Properties 300 297 L (9.5), O (0.5) Yes Fee
103 Marketplace at Centerpoint 360 358 L (9.5), O (0.5) Yes Fee
104 New England Financial Building 300 299 L (9.5), O (0.5) Yes Fee
105 Riverlawn Mobile Home Park 360 357 L (9.5), O (0.5) Yes Fee
106 Lakeside Mobile Estates 360 359 L (9.5), O (0.5) Yes Fee
107 Signature Lake Apartments 360 357 L (9.5), O (0.5) Yes Fee
110 Palmetto Trailer Park 360 358 L (9.5), O (0.5) Yes Fee
115 Twinbridge Apartment Complex 360 357 L (9.5), O (0.5) Yes Fee
116 Marmion Royal Apartments 360 357 L (9.5), O (0.5) Yes Fee
117 TYIF Park Condominiums 360 357 L (9.5), O (0.5) Yes Fee
118 Tilbury Garden Apartments 360 358 L (9.5), O (0.5) Yes Fee
119 The Sanitas Building 360 357 L (9.5), O (0.5) Yes Fee
120 2516-2526 North Kedzie Boulevard 360 357 L (9.5), O (0.5) Yes Fee
121 Old South Apartments 360 357 L (9.5), O (0.5) Yes Fee
122 Whitfield Village Apartments 240 237 L (19.5), O Yes Fee
(0.5)
123 Rancocas Valley Professional Arts Building 300 299 L (9.5), O (0.5) Yes Fee
124 Arbor Village South Apartments 360 359 L (9.5), O (0.5) Yes Fee
127 Quail Point 360 357 L (9.5), O (0.5) Yes Fee
128 Merriwood Village Apartments 360 358 L (9.5), O (0.5) Yes Fee
129 85 Old Long Ridge Road 360 357 L (9.5), O (0.5) Yes Fee
130 Pavilion Plaza 300 298 L (9.5), O (0.5) Yes Fee
131 Avon Manor Apartments 360 356 L (9.5), O (0.5) Yes Fee
132 20/20 Greenville Retail Center 300 299 L (9.5), O (0.5) Yes Fee
133 Westover Apartments 360 357 L (9.5), O (0.5) Yes Fee
134 East 29th Street Apartments (1C) 360 358 L (9.5), O (0.5) Yes Fee
135 Chesapeake Drive Apartments (1C) 360 358 L (9.5), O (0.5) Yes Fee
136 Sandalwood Square 360 358 L (9.5), O (0.5) Yes Fee
137 1200 Medical Building 300 299 L (9.5), O (0.5) Yes Fee
138 1416 Apartments (1D) 300 299 L (9.5), O (0.5) Yes Fee
139 1419 Apartments (1D) 300 299 L (9.5), O (0.5) Yes Fee
140 Groton Fashion Plaza 300 298 L (9.5), O (0.5) Yes Fee
141 Scioto Fairway Woods Apartments 180 178 L (14.5), O Yes Fee
(0.5)
142 Park Garden Apartments 240 238 L (19.5), O Yes Fee
(0.5)
143 Glenrose Square Apartments 360 359 L (9.5), O (0.5) Yes Fee
144 Blue Gem Mobile Home Park 360 358 L (9.5), O (0.5) Yes Fee
145 Bri-Mar Building 240 238 L (9.5), O (0.5) Yes Fee
146 244-256 Orange Place (1E) 240 239 L (9.5), O (0.5) Yes Fee
147 249 Orange Place Apartments (1E) 240 239 L (9.5), O (0.5) Yes Fee
148 Casa De Dallas Apartments 360 359 L (9.5), O (0.5) Yes Fee
<CAPTION>
# Loan/Property Name Interest
<S> <C> <C>
83 Arbor Village Townhomes Actual/360
84 Park South Apartments Actual/360
85 Deer Park Mansion Actual/360
86 Holiday Inn Southeast - Indianapolis, IN Actual/360
87 Lakeshore on the Hill Actual/360
88 Sandia Vista Shopping Center Actual/360
90 Spring Medical Building Actual/360
91 Bingo King Warehouse Actual/360
94 Northland Medical Center Actual/360
95 Murdock Apartments Actual/360
97 Chestnut Park Apartments Actual/360
101 Northern Plaza Shopping Center Actual/360
102 Peconic Bay Properties Actual/360
103 Marketplace at Centerpoint Actual/360
104 New England Financial Building Actual/360
105 Riverlawn Mobile Home Park Actual/360
106 Lakeside Mobile Estates Actual/360
107 Signature Lake Apartments Actual/360
110 Palmetto Trailer Park Actual/360
115 Twinbridge Apartment Complex Actual/360
116 Marmion Royal Apartments Actual/360
117 TYIF Park Condominiums Actual/360
118 Tilbury Garden Apartments Actual/360
119 The Sanitas Building Actual/360
120 2516-2526 North Kedzie Boulevard Actual/360
121 Old South Apartments Actual/360
122 Whitfield Village Apartments Actual/360
123 Rancocas Valley Professional Arts Building Actual/360
124 Arbor Village South Apartments Actual/360
127 Quail Point Actual/360
128 Merriwood Village Apartments Actual/360
129 85 Old Long Ridge Road Actual/360
130 Pavilion Plaza Actual/360
131 Avon Manor Apartments Actual/360
132 20/20 Greenville Retail Center Actual/360
133 Westover Apartments Actual/360
134 East 29th Street Apartments (1C) Actual/360
135 Chesapeake Drive Apartments (1C) Actual/360
136 Sandalwood Square Actual/360
137 1200 Medical Building Actual/360
138 1416 Apartments (1D) Actual/360
139 1419 Apartments (1D) Actual/360
140 Groton Fashion Plaza Actual/360
141 Scioto Fairway Woods Apartments Actual/360
142 Park Garden Apartments Actual/360
143 Glenrose Square Apartments Actual/360
144 Blue Gem Mobile Home Park Actual/360
145 Bri-Mar Building Actual/360
146 244-256 Orange Place (1E) Actual/360
147 249 Orange Place Apartments (1E) Actual/360
148 Casa De Dallas Apartments Actual/360
</TABLE>
M-1-23
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Name Street Adress City County
<S> <C> <C> <C> <C>
149 Mooring Circle Duplexes 233-253 Mooring Circle Austin Travis
150 Amherst Street Mall 427-429 Amherst Street Nashua Hillsborough
151 Hollywood Video - Cudahy, WI 6001 South Packard Avenue Cudahy Milwaukee
152 Pioneer House Apartments 2851 West Pioneer Drive Irving Dallas
153 St. Charles & Prytania Street Apartments 3102 St. Charles & 1818 Prytania Street New Orleans Orleans
154 Butternut Apartments 413, 415 and 422 Butternut Street Washington District of
Columbia
155 Clarewood Gardens Apartments 5801 Clarewood Houston Harris
156 Autumn Run Apartments 505 East Alexander Lane Euless Tarrant
157 Whittier Gardens 300-304 Aspen Street, 301-305 Whittier Washington District of
Street & 6718-6722 3rd Street Columbia
158 Alan Apartments 8508-8510 Flower Avenue Takoma Park Montgomery
159 Airport Square 1623 White Mountain Highway North Conway Carroll
160 Circa 1886 Building 201-209 Park Avenue Plainfield Union
<CAPTION>
# Loan/Property Name State Zip Originator Original Loan Cut-Off Monthly
Code Balance Date Payment
Balance
<S> <C> <C> <C> <C> <C> <C> <C>
149 Mooring Circle Duplexes TX 78734 Column 925,000 923,811 7,217.60
150 Amherst Street Mall NH 03063 Column 925,000 922,974 7,762.57
151 Hollywood Video - Cudahy, WI WI 53110 Column 800,000 798,832 6,153.84
152 Pioneer House Apartments TX 75061 Column 800,000 798,766 6,708.09
153 St. Charles & Prytania Street Apartments LA 70115 Column 785,000 784,558 6,231.75
154 Butternut Apartments DC 20012 Column 775,000 773,600 6,094.96
155 Clarewood Gardens Apartments TX 77081 Column 650,000 648,469 5,313.06
156 Autumn Run Apartments TX 76040 Column 640,000 639,600 4,853.17
157 Whittier Gardens DC 20012 Column 515,000 514,070 4,050.20
158 Alan Apartments MD 20912 Column 500,000 498,892 4,178.88
159 Airport Square NH 03860 Column 425,000 424,364 3,604.49
160 Circa 1886 Building NJ 07060 Column 402,000 401,415 3,673.97
<CAPTION>
# Loan/Property Name Mortgage Original Remaining Maturity Original Remaining
Rate Amortization Amortization Date Amortization Amortization
<S> <C> <C> <C> <C> <C> <C> <C>
149 Mooring Circle Duplexes 8.660% 120 117 7/1/2009 360 357
150 Amherst Street Mall 9.000% 120 117 7/1/2009 300 297
151 Hollywood Video - Cudahy, WI 8.220% 120 118 8/1/2009 324 322
152 Pioneer House Apartments 8.990% 120 118 8/1/2009 300 298
153 St. Charles & Prytania Street Apartments 8.850% 120 119 9/1/2009 360 359
154 Butternut Apartments 8.220% 120 118 8/1/2009 300 298
155 Clarewood Gardens Apartments 8.680% 120 117 7/1/2009 300 297
156 Autumn Run Apartments 8.350% 120 119 9/1/2009 360 359
157 Whittier Gardens 8.220% 120 118 8/1/2009 300 298
158 Alan Apartments 8.950% 120 117 7/1/2009 300 297
159 Airport Square 9.130% 120 118 8/1/2009 300 298
160 Circa 1886 Building 9.220% 120 119 9/1/2009 240 239
<CAPTION>
# Loan/Property Name Prepayment Defeasance Fee/ Interest
Provides (Yeas/No) Leasehold Calculation
<S> <C> <C> <C> <C> <C>
149 Mooring Circle Duplexes L (9.5), O (0.5) Yes Fee Actual/360
150 Amherst Street Mall L (9.5), O (0.5) Yes Fee Actual/360
151 Hollywood Video - Cudahy, WI L (9.5), O (0.5) Yes Fee Actual/360
152 Pioneer House Apartments L (9.5), O (0.5) Yes Fee Actual/360
153 St. Charles & Prytania Street Apartments L (9.5), O (0.5) Yes Fee Actual/360
154 Butternut Apartments L (9.5), O (0.5) Yes Fee Actual/360
155 Clarewood Gardens Apartments L (9.5), O (0.5) Yes Fee Actual/360
156 Autumn Run Apartments L (9.5), O (0.5) Yes Fee Actual/360
157 Whittier Gardens L (9.5), O (0.5) Yes Fee Actual/360
158 Alan Apartments L (9.5), O (0.5) Yes Fee Actual/360
159 Airport Square L (9.5), O (0.5) Yes Fee Actual/360
160 Circa 1886 Building L (9.5), O (0.5) Yes Fee Actual/360
</TABLE>
(1A) The Mortgage Loans secured by Radisson South - Bloomington and Le Meridien
- Dallas, respectively, are cross-collateralized and cross-defaulted.
(1B) The Mortgage Loans secured by Creekside Apartments, Brookside Apartments,
Glenbrook Centre Apartments and Hardwick Apartments, respectively, are
cross-collateralized and cross-defaulted.
(1C) The Mortgage Loans secured by East 29th Street Apartments and Chesapeake
Drive Apartments, respectively, are cross-collateralized and
cross-defaulted.
(1D) The Mortgage Loans secured by 1416 Apartments and 1419 Apartments,
respectively, are cross-collateralized and cross-defaulted.
(1E) The Mortgage Loans secured by 244-256 Orange Place and 249 Orange Place
Apartments, respectively, are cross-collateralized and cross-defaulted.
(2) The Mortgage Loan secured by the Kaiser Permanente Office Building is a
CTL Loan and the Credit Tenant is Kaiser Foundation Health Plan, Inc.
M-1-24
<PAGE>
Schedule 2
Third Party Originator Agreements
THIRD PARTY ORIGINATOR THIRD PARTY ORIGINATOR AGREEMENT
- ---------------------- --------------------------------
1. Union Capital Investments, LLC Seller's Warranty Certificate dated as of
("Union Capital") October 5, 1999 from Union Capital in
favor of Column Financial, Inc.
M-1-25
<PAGE>
EXHIBIT M-2
FORM OF GECA MORTGAGE LOAN PURCHASE
AND SALE AGREEMENT
M-2-1
<PAGE>
Execution Copy
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of October 5,
1999 (this "Agreement"), is between DLJ Commercial Mortgage Corp., a Delaware
corporation (the "Purchaser"), and GE Capital Access, Inc., a Delaware
corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and otherwise
convey to the Purchaser, subject to the terms and conditions set forth below,
certain mortgage loans (collectively, the "Mortgage Loans") identified and more
particularly described on Schedule 1 attached hereto (the "Mortgage Loan
Schedule"), together with the Loan REMIC Regular Interests and the Loan REMIC
Residual Interests with respect to the Gold Ridge Apartments REMIC, the Regency
Apartments REMIC and the Yonkers Shopping Center REMIC (each as defined in the
Pooling and Servicing Agreement referred to below). Unless otherwise indicated
on the Mortgage Loan Schedule, the Mortgage Loans were originated by the Seller.
Reference is made to the Pooling and Servicing Agreement, dated as of
October 1, 1999 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, GE Capital Loan Services, Inc., as master servicer (in such capacity,
the "Master Servicer"), GMAC Commercial Mortgage Corporation, as special
servicer (in such capacity, the "Special Servicer"), and Norwest Bank Minnesota,
National Association as trustee (in such capacity, the "Trustee") and as REMIC
administrator (in such capacity, the "REMIC Administrator"), relating to the
issuance of the Purchaser's Commercial Mortgage Pass-Through Certificates,
Series 1999-CG3 (the "Certificates"). Capitalized terms used without definition
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
below). The Seller acknowledges that the Purchaser intends to transfer the
Mortgage Loans, the Loan REMIC Regular Interests and the Loan REMIC Residual
Interests, together with certain other commercial and multifamily mortgage loans
(the "Other Loans"), to the Trustee in exchange for the Certificates. The
Purchaser has acquired or will acquire the Other Loans from Column Financial,
Inc. ("Column") pursuant to a Mortgage Loan Purchase and Sale Agreement dated as
of the date hereof (the "Column Mortgage Loan Purchase Agreement"), between the
Purchaser and Column (Column sometimes referred to herein as the "Other Loan
Seller"). In addition, the Purchaser has entered into an Underwriting Agreement,
dated the date hereof (the "Underwriting Agreement"), with Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), whereby the Purchaser will sell to
DLJSC all of the Certificates that are to be registered under the Securities Act
of 1933, as amended (the "Securities Act"; and such Certificates, the
"Registered Certificates"). The Purchaser has also entered into a Certificate
Purchase Agreement, dated the date hereof (the "Certificate Purchase
Agreement"), with DLJSC whereby the Purchaser will sell to DLJSC all of the
remaining Certificates (the "Non-Registered Certificates").
1. Agreement to Purchase. The Seller agrees to sell, assign, transfer, set
over and otherwise convey, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans, the Loan REMIC Regular
Interests and the Loan REMIC Residual Interests shall take place on October 12,
1999 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The Mortgage Loans will have an aggregate Cut-off Date
Balance of approximately $454,972,144.00 (the "Initial Pool Balance"). The
purchase price for the Mortgage Loans, the Loan REMIC Regular Interests and the
Loan REMIC Residual Interests shall be determined in accordance with the letter
agreement between the Purchaser and the Seller including accrued interest
thereon from October 1, 1999 (the "Cut-off Date") to but not including the
Closing Date. Such purchase price shall be paid to the Seller on the Closing
Date by wire transfer in immediately available funds or by such other method as
shall be mutually acceptable to the parties hereto.
M-2-2
<PAGE>
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 above, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all the Seller's right, title and interest in and to the Mortgage
Loans, the Loan REMIC Regular Interests and the Loan REMIC Residual Interests,
including all interest and principal received on or with respect to the Mortgage
Loans, the Loan REMIC Regular Interests and the Loan REMIC Residual Interests
after the Cut-off Date (other than scheduled payments of interest and principal
due on or before the Cut-off Date), together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard or other
insurance policies and any escrow, reserve or other comparable accounts related
to the Mortgage Loans (including letters of credit representing reserves or
escrows). On the Closing Date, the Seller shall transfer or cause to be
transferred to the Master Servicer the funds in such escrow, reserve or other
comparable accounts related to the Mortgage Loans, together with an amount equal
to all collections on the Mortgage Loans, the Loan REMIC Regular Interests and
the Loan REMIC Residual Interests received prior to the Closing Date that
represent scheduled payments of principal and interest due and principal
prepayments received after the Cut-off Date.
(b) In connection with such transfer and assignment, the Purchaser hereby
directs the Seller to, and the Seller hereby agrees to, deliver to, and deposit
with, the Trustee (or a custodian appointed thereby (a "Custodian")) the
documents and/or instruments described on Exhibit A hereto with respect to each
Mortgage Loan (collectively as to each Mortgage Loan, the "Mortgage File");
provided that if, as to any Mortgage Loan, the related lender's title insurance
policy has not yet been issued, the Seller agrees that its delivery obligation
shall be deemed to be satisfied as to such missing title insurance policy, and
such missing title insurance policy shall be deemed to have been included in the
related Mortgage File, so long as (i) the Seller delivers to the Trustee on or
before the Closing Date a pro forma title policy or a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, (ii) the Seller
delivers to the Trustee, promptly following the receipt thereof, the original
related lender's title insurance policy (or a copy thereof), and (iii) as of the
date that is 180 days following the Closing Date, the Seller has delivered to
the Trustee the original related lender's title insurance policy. The Seller
shall also cause (at its own expense) any letter of credit or similar instrument
delivered by a Borrower and included in the Mortgage File to be transferred to
and for the benefit of the Trustee, including changing the beneficiary thereof,
as necessary. In addition, the Purchaser hereby directs the Seller to, and the
Seller hereby agrees to, deliver to, and deposit with, the Master Servicer all
of the documents and other items referred to in Section 2.01(f) of the Pooling
and Servicing Agreement with respect to the Mortgage Loans (collectively as to
each Mortgage Loan, the "Servicing File"), together with any and all unapplied
escrows and reserves in respect of the Mortgage Loans.
If the Seller cannot deliver on the Closing Date any original or certified
recorded document or original title insurance policy described on Exhibit A,
solely because the Seller is delayed in making such delivery by reason of the
fact that such original or certified recorded document has not been returned by
the appropriate recording office or such original title insurance policy has not
yet been issued, then the Seller shall notify the Trustee and, if applicable,
the Custodian in writing of such delay and shall deliver such documents to the
Trustee or Custodian, as the case may be, promptly upon the Seller's receipt
thereof. In any event, if the Seller fails to deliver any original or certified
recorded document described on Exhibit A or any original title policy described
on Exhibit A to the Trustee or Custodian within 180 days following the Closing
Date, such failure shall be deemed to constitute a breach of the representation
set forth in Item 38 of Exhibit C hereto with respect to the related Mortgage
Loan.
M-2-3
<PAGE>
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser and its successors and assigns (including, without
limitation, the Trustee for the benefit of the Certificateholders), each of the
representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders), each
of the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the Purchaser only, that the Seller has not dealt with
any broker, investment banker, agent or other person (other than the Purchaser
and DLJSC) who may be entitled to any commission or compensation payable by the
Purchaser or DLJSC in connection with the sale to the Purchaser of the Mortgage
Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for
the benefit of the Purchaser and its successors and assigns (including, without
limitation, the Trustee for the benefit of the Certificateholders), as of the
date of substitution, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Defective Mortgage Loan
(as defined in Section 4(a) hereof), each of the representations and warranties
set forth in Exhibit B and Exhibit C. From and after the date of substitution,
each Replacement Mortgage Loan, if any, shall be deemed to constitute a
"Mortgage Loan" hereunder for all purposes.
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within ninety (90) days of the earlier of discovery or receipt of
notice by the Seller that there has been a breach of any of the representations
and warranties set forth in Exhibit B or Exhibit C and made by the Seller
pursuant to Section 3(a), Section 3(b) or Section 3(d), as the case may be,
which breach materially and adversely affects the value of any Mortgage Loan or
the interests of the legal and/or beneficial owner(s) thereof (any such breach,
a "Material Breach"), the Seller shall (i) cure such Material Breach in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price (as defined in the
Pooling and Servicing Agreement, but without giving effect to any amendment
thereto unless approved in writing by Seller) in accordance with the directions
of the owner(s) of such Defective Mortgage Loan(s); provided that if (i) such
Material Breach does not relate to whether the Defective Mortgage Loan was, as
of the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the
related date of substitution), a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material
Breach is capable of being cured but not within such 90-day period, (iii) the
Seller has commenced and is diligently proceeding with the cure of such Material
Breach within such 90-day period, and (iv) the Seller shall have delivered to
the owner(s) of the Defective Mortgage Loan a certification executed on behalf
of the Seller by an officer thereof setting forth the reason that such Material
Breach is not capable of being cured within the initial 90-day period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Material Breach will be cured within an
additional period not to exceed 90 more days, then the Seller shall have up to
an additional 90 days to complete such cure, in which event the Seller shall
continue to proceed diligently to effect such cure as early as practicable
within such 90-day period, or failing such cure, to repurchase the Defective
Mortgage Loan; and provided, further, that if the Seller's obligation to
repurchase any Defective Mortgage Loan as a result of a Material Breach arises
within the three-month period commencing on the Closing Date (with respect to
the Regency Apartments Mortgage Loan and the Gold Ridge Apartments Mortgage
Loan, the startup date of the related Loan REMIC) (or within the two-year
M-2-4
<PAGE>
period commencing on the Closing Date (with respect to the Regency Apartments
Mortgage Loan and the Gold Ridge Apartments Mortgage Loan, the startup date of
the related Loan REMIC) if the Defective Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulation Section 1.860G-2(f)), the Seller may, at its option, in lieu
of repurchasing such Defective Mortgage Loan (but, in any event, no later than
such repurchase would have to have been completed), (x) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(y) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement (or, if the Defective Mortgage Loan is no longer subject thereto, in
accordance with the reasonable instructions of the owner(s) thereof). Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis. The Seller shall have no obligation to monitor the
Mortgage Loans regarding the existence of a Material Breach, but if Seller
discovers a Material Breach with respect to a Mortgage Loan, it will notify
Purchaser.
Without limiting any of the foregoing, the absence of an original Mortgage
Note, an original or a copy of the Mortgage (with or without evidence of
recording thereon) or an original or a copy of lender's title insurance policy
from a Mortgage File or any material nonconformity to the Mortgage Loan Schedule
of any such document or any material irregularity on the face thereof (without
the presence of any factor, such as the presence of a lost note affidavit with
an indemnity in the case of a missing Mortgage Note or the presence of a pro
forma title policy or a commitment for title insurance "marked-up," at the
closing of the subject Mortgage Loan that in the reasonable discretion of the
owner(s) of the subject Mortgage Loan reasonably mitigates such absence,
non-conformity or irregularity) shall be deemed a Material Breach of the
representation and warranty set forth in Paragraph 39 of Exhibit C hereto.
Furthermore, if either an original or a copy of any of the documents referred to
in clauses (ii) - (v) of Exhibit A, with evidence of recording indicated
thereon, has not been delivered to the Trustee or a Custodian on its behalf with
respect to any Mortgage Loan on or before the second anniversary of the Closing
Date, such failure shall likewise be deemed a Material Breach of the
representation and warranty set forth in Paragraph 39 of Exhibit C hereto.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(a), the Seller (i) shall deliver
the related Mortgage File for each such substitute mortgage loan to the owner(s)
of the Defective Mortgage Loan, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to such owner(s). No mortgage loan may be substituted for a Defective Mortgage
Loan as contemplated by this Section 4(a) if the Defective Mortgage Loan to be
replaced was itself a Replacement Mortgage Loan. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, the related date of substitution) and on or prior to the related date of
repurchase or replacement, shall belong to the Purchaser and its successors and
assigns. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or replacement, shall belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the owner(s) of such Defective Mortgage
Loan.
M-2-5
<PAGE>
Except as contemplated by Section 8, it is understood and agreed that the
obligations of the Seller set forth in this Section 4(a) to cure a Material
Breach or repurchase or replace the related Defective Mortgage Loan(s)
constitute the sole remedies available to the Purchaser or any assignee
respecting a breach of the representations and warranties set forth on Exhibits
B and C and made by the Seller pursuant to Sections 3(a), 3(b) and 3(d),
respectively.
(b) It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to Section 4(a) that the Trustee
as assignee of the Purchaser shall have executed and delivered such instruments
of transfer or assignment then presented to it by the Seller, in each case
without recourse, as shall be necessary to vest in the Seller the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), to the extent that such ownership interest was transferred to the
Trustee under the Pooling and Servicing Agreement.
(c) The Seller hereby acknowledges and consents to the assignment by the
Purchaser to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Certificateholders, of (i) the representations and
warranties set forth in Exhibits B and C and made by the Seller pursuant to
Sections 3(a), 3(b) and 3(d), respectively, (ii) the obligation of the Seller to
repurchase or replace a Defective Mortgage Loan in connection with a Material
Breach pursuant to Section 4(a) and (iii) the obligation of the Seller to
deliver certain documentation, funds and other assets relating to the Mortgage
Loans pursuant to Section 2. The Trustee or its designee may enforce such
obligations as provided in Section 11(a) hereof or as assignee.
5. Closing. The closing of the sale of the Mortgage Loans, the Loan REMIC
Regular Interests and the Loan REMIC Residual Interests (the "Closing") shall be
held at the offices of Sidley & Austin, 875 Third Avenue, New York, New York
10022 at 10:00 a.m., New York City time (or at such other place and time as may
be determined by the Purchaser), on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller made
pursuant to Section 3 of this Agreement shall be true and correct as of
the Closing Date;
(ii) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee or
a Custodian and to the Master Servicer, respectively, all documents, funds
and other assets required to be delivered thereto pursuant to Section 2 of
this Agreement;
(iv) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date; and
(v) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement.
M-2-6
<PAGE>
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement duly executed by the Purchaser and the Seller;
(ii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by an executive officer of the Seller, in his or her
individual capacity, and dated the Closing Date, and upon which the
Purchaser, DLJSC, Column, their respective affiliates, the Trustee and the
Certificateholders (collectively, for purposes of this Section 6, the
"Interested Parties") may rely, attaching thereto as exhibits (A) the
resolutions of the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated by this Agreement and
(B) the certificate of incorporation and by-laws of the Seller;
(iii) A certificate of good standing of the Seller issued by the
Secretary of State of the State of Delaware not earlier than ten (10) days
prior to the Closing Date, and upon which the Interested Parties may rely;
(iv) A certificate of the Seller substantially in the form of
Exhibit D-2 hereto; executed by an authorized signatory of the Seller and
dated the Closing Date, and upon which the Interested Parties may rely;
(v) Written opinions of Kevin Korsh, Esq., in-house counsel for the
Seller and GECC (as defined below) and Andrews & Kurth L.L.P., counsel for
the Seller and GECC, substantially in the forms of Exhibit D-3A and
Exhibit D-3B hereto with any modifications required by any rating agency
(each, a "Rating Agency") identified in the Prospectus Supplement or the
Memorandum (each as defined in Section 8), dated the Closing Date and
addressed to the Purchaser, DLJSC, the Trustee and, if requested thereby,
each Rating Agency, together with such other written opinions as may be
required by any Rating Agency, including a written opinion of Cadwalader,
Wickersham & Taft, counsel for the Seller and GECC with respect to the
characterization of the transfer of the Mortgage Loans by the Seller to
the Purchaser as a "true sale"; and
(vi) A written letter of Cadwalader, Wickersham & Taft, counsel for
the Seller, and Andrews & Kurth LLP, counsel for the Seller, each in form
and substance acceptable to the Purchaser and DLJSC, dated the Closing
Date and addressed to the Purchaser and DLJSC relating to the Prospectus
Supplement and the Memorandum;
(vii) With respect to any Mortgage Loan for which the Seller has
made an election to treat such Mortgage Loan as a separate Real Estate
Mortgage Investment Conduit ("REMIC") within the meaning of Sections 860A
through 860G of the Internal Revenue Code of 1986 in effect on the date
hereof (the "REMIC Provisions") (such Mortgage Loan herein called a "Loan
REMIC") (A) a copy of the related REMIC declaration, and (B) the written
opinion of Cadwalader, Wickersham & Taft or Andrews & Kurth, LLP, counsel
to the Seller, addressed to the Interested Parties and the Rating
Agencies, to the effect that the Loan REMIC will qualify as a REMIC;
(viii) A letter or letters obtained by the Purchaser and the Seller,
among others, from Arthur Andersen LLP, certified public accountants,
dated the dates of the Prospectus Supplement and the Memorandum, to the
effect that they have performed certain specified procedures as a result
of which they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement and
the Memorandum under the captions "Summary of Prospectus Supplement -- The
Mortgage Loans and the Underlying Real Properties,"
M-2-7
<PAGE>
"Description of the Mortgage Pool" and "Risk Factors -- Risks Related to
the Mortgage Loans", Exhibit A-1 to the Prospectus Supplement and the
Diskette (as defined below) agrees with the records of the Seller; and
(ix) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
7. Costs. All expenses incidental to the performance of this Agreement
shall be paid and allocated in accordance with the Term Sheet for the Joint
Conduit Securitization entered into between DLJSC and GE Capital Access, Inc.
8. Indemnification.
(a) The Seller shall indemnify and hold harmless each of the Purchaser,
DLJSC and Column, their respective officers and directors, and each person, if
any, who controls the Purchaser, DLJSC, or Column within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against any and all losses, claims,
damages, liabilities, costs and expenses, joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange Act or other
similar federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (or actions in respect thereof) (i) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in (A)
the Prospectus Supplement (including, without limitation, Exhibit A-1 and
Exhibit A-2 thereto and the Diskette) or the preliminary version thereof dated
September 24, 1999 (the "Preliminary Prospectus Supplement") or the Memorandum
(including, without limitation, the Prospectus Supplement as attached as Exhibit
A thereto) or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment of or supplement to any of the foregoing or (B) any
items similar to Computational Materials or ABS Term Sheets forwarded to
prospective investors in the Non-Registered Certificates, or (ii) arise out of
or are based upon the omission or alleged omission (in the case of an omission
or alleged omission in the ABS Term Sheets and the Computational Materials
relating to the Registered Certificates, when read in conjunction with the
Prospectus and, in the case of an omission or alleged omission in items similar
to Computational Materials and ABS Term Sheets furnished to prospective
investors in the Non-Registered Certificates, when read in conjunction with the
Memorandum and, in the case of an omission or alleged omission in the
Memorandum, when read together with other information made available for review
by investors in the Non-Registered Certificates) to state in the printed
materials described in the immediately preceding clause (i)(A) and (B)
(collectively, the "Disclosure Documents") a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; but, in the case of
clauses (i) and (ii), only if and to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission (I) arises out of or is
based upon an untrue statement or omission with respect to the information
regarding the Mortgage Loans, the related Borrowers or the related Mortgaged
Properties contained in the Master Tape (it being acknowledged that the Master
Tape was used to prepare the Prospectus Supplement (including, without
limitation, Exhibit A-1 and Exhibit A-2 thereto and the Diskette), the
Preliminary Prospectus Supplement, the Memorandum, the Computational Materials
and ABS Term Sheets with respect to the Registered Certificates and any items
similar to Computational Materials and ABS Term Sheets forwarded to prospective
investors in the Non-Registered Certificates), (II) arises out of an untrue
statement or alleged untrue statement or omission or alleged omission made in
any of the Disclosure Documents in reliance upon and in conformity with any
other information concerning the characteristics of the Mortgage Loans, the
related Borrowers or the related Mortgaged Properties furnished in writing to
the Purchaser or DLJSC by the Seller, (III) is contained in the information
regarding the Mortgage Loans, the related Borrowers, the related Mortgaged
Properties or the Seller set forth in the Prospectus Supplement, the Preliminary
Prospectus Supplement and the Memorandum under the headings "Summary of
Prospectus Supplement -- The Mortgage Loans and the Underlying Real Properties",
"Risk Factors" and "Description of the Mortgage Pool" or on Exhibit A-1 to the
Prospectus Supplement or on the Diskette; provided that the foregoing were
provided to the Seller for its review, or
M-2-8
<PAGE>
(IV) arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3 (such
representations and warranties, together with the information described in the
preceding clauses (I), (II) and (III), the "Seller Information"); provided that
the indemnification provided by this Section 8 shall not apply to the extent
that such untrue statement or omission was made as a result of an error in (x)
the manipulation of, or (y) any calculations based upon, or (z) any aggregation
(other than an aggregation made in the Master Tape by the Seller) of, the
information regarding the Mortgage Loans, the related Borrowers, the related
Mortgaged Properties or the Seller, including without limitation the aggregation
of such information with comparable information relating to the Other Loans.
Notwithstanding the forgoing, the indemnity provided for in the preceding
sentence with respect to any loss, claim, damage, liability, cost or expense
referred to therein and arising out of or based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the Preliminary
Prospectus Supplement, any Computational Materials or ABS Term Sheets, with
respect to the Registered Certificates or any items similar to Computational
Materials or ABS Term Sheets forwarded to prospective investors in the
Non-Registered Certificates, or any revision or amendment of or supplement to
any such document, shall not inure to the benefit of any of the indemnified
parties (or any officer, director or controlling person in respect thereof) if:
(i) in the case of the Preliminary Prospectus Supplement (or any revision or
amendment thereof or supplement thereto), DLJSC did not deliver to the person
asserting such loss, claim, damage, liability, cost or expense a copy of the
Prospectus Supplement (or the Prospectus Supplement as most recently amended or
supplemented) at or prior to the confirmation of the sale of the subject
Certificates to such person in any case where such delivery is required by the
Securities Act and the untrue statement or alleged untrue statement or omission
or alleged omission made in such Preliminary Prospectus Supplement was corrected
in the Prospectus Supplement (or the Prospectus Supplement as most recently
amended or supplemented) and such correction would have cured the defect giving
rise to any such loss, claim, damage, liability, cost or expense; and (ii) in
the case of any Computational Materials or ABS Term Sheets with respect to the
Registered Certificates or any items similar to Computational Materials or ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates (or any revision or amendment of or supplement to any such
document), the Seller notified DLJSC in writing of the Collateral Error that
gave rise to the untrue statement or alleged untrue statement or omission or
alleged omission or provided in written or electronic format information
superseding or correcting such Collateral Error prior to the time of
confirmation of sale of the subject Certificates to such person, and DLJSC
failed to deliver to such person corrected materials (or, if the superseding or
correcting information was contained in the Prospectus Supplement or Memorandum,
failed to deliver to such person the Prospectus Supplement or Memorandum, as the
case may be) at or prior to confirmation of such sale to such person. The Seller
acknowledges that the Purchaser and DLJSC will enter into the Underwriting
Agreement and the Certificate Purchase Agreement and that the Purchaser and
Column will enter into the Column Mortgage Loan Purchase Agreement, in each case
in reliance upon this indemnity agreement of Seller. This indemnity agreement
will be in addition to any liability which the Seller may otherwise have. The
obligation to indemnify does not include or incorporate herein the cure or
repurchase obligations of Seller in Section 4.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 333-82275 filed by the Purchaser on Form S-3,
including, without limitation, all exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated October 5,
1999, as supplemented by the prospectus supplement dated October 5, 1999 (the
"Prospectus Supplement"), relating to the Registered Certificates, including,
without limitation, all annexes and exhibits thereto; "Memorandum" shall mean
the private placement memorandum dated October 5, 1999, relating to certain
classes of the Non-Registered Certificates, including, without limitation, all
annexes and exhibits thereto; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated, and Kidder Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities
M-2-9
<PAGE>
Association (the "PSA Letter" and, together with the Kidder letters, the
"No-Action Letters"); "Diskette" shall mean the diskette attached to each of the
Prospectus, the Preliminary Prospectus Supplement and the Memorandum; and
"Master Tape" shall mean the compilation of information and data regarding the
Mortgage Loans covered by the Independent Accountants Report on Applying Agreed
Upon Procedures dated October 5, 1999, as supplemented to the Closing Date, and
rendered by Arthur Anderson LLP; and "Collateral Error" shall mean any error in
the information regarding the Seller, the Mortgage Loans, the related Mortgaged
Properties or the related Borrowers contained in the Master Tape or any other
information supplied by the Seller directly in writing or email to the Purchaser
or DLJSC or any breach of the representations and warranties made by Seller in
or pursuant to Section 3.
(b) The Purchaser shall indemnify and hold harmless the Seller, its
directors, officers, employees and agents, and each person, if any, who controls
the Seller within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any and all losses, claims, damages, liabilities,
costs or expenses, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, to the same extent as
the indemnity from the Purchaser to DLJSC in Section 8(a) of the Underwriting
Agreement and Section 8(a) of the Certificate Purchase Agreement (in each case,
as in effect on the Closing Date). In addition, the Purchaser shall indemnify
and hold harmless the Seller, its directors, officers, employees and agents, and
each person, if any, who controls the Seller within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any and all
losses, claims, damages, liabilities, costs or expenses, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities, costs or
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Preliminary Prospectus Supplement and the Memorandum
(including all exhibits and annexes to each such document, but excluding any
information included in any such document solely as a result of incorporation by
reference), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made as a result of
an error in (x) the manipulation of, or (y) any calculations based upon, or (z)
any aggregation (other than an aggregation made in the Master Tape by the
Seller) of, the information regarding the Mortgage Loans and/or the Other Loans,
the related Mortgaged Properties, the related Borrowers or the Seller. This
indemnity will be in addition to any liability which the Purchaser may otherwise
have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under this Section 8, except to the extent that the indemnifying party has been
prejudiced in any material respect, or from any liability which it may have,
otherwise than under this Section 8. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided that if the defendants in any such action include
both the indemnified party and the indemnifying party, and the indemnified party
or parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action
M-2-10
<PAGE>
and approval by the indemnified party of counsel as described in the preceding
sentence, the indemnifying party will not be liable to such indemnified party
for legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with one local counsel, if
applicable)), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). Unless it shall
assume the defense of any proceeding, the indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party or parties from
and against any loss or liability by reason of such settlement or judgment. If
the indemnifying party assumes the defense of any proceeding, it shall be
entitled to settle such proceeding with the consent of the indemnified party or
parties in connection with all claims which have been asserted against the
indemnified party or parties in such proceeding by the other parties to such
settlement, and shall be entitled to settle such proceeding without the consent
of the indemnified party or parties so long as such settlement (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in subsection (a) or (b) of this
Section 8 shall for any reason be unavailable in accordance with its terms to an
indemnified party or insufficient to hold it harmless in respect of any losses,
claims, damages, liabilities, costs or expenses referred to in and intended to
be covered under such subsection (a) or (b), as the case may be, of this Section
8, then the indemnifying party and the indemnified party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages, liabilities, costs or expenses referred to in such subsection
(a) or (b), as the case may be, of this Section 8, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other in connection with the statement or
omission that resulted in such losses, claims, damages, liabilities, costs or
expenses as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined by
per capita allocation or by any other method of allocation which does not take
account of the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities, costs or expenses referred to above shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim which is the
subject of this subsection (d), subject to the limitations therein provided
under subsection (c). The indemnifying party shall pay such expenses as and when
incurred, at the request of the indemnified party, and to the extent that the
indemnifying party will be ultimately obligated to pay such expenses. If and to
the extent that any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the indemnified party which received such payment shall promptly refund the
amount so paid to the indemnifying party. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 8
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any of the
M-2-11
<PAGE>
indemnified parties, and (iii) acceptance of and payment for the Mortgage Loans,
the Loan REMIC Regular Interests and the Loan REMIC Residual Interests.
(f) The Purchaser will cause the Seller to be a third party beneficiary of
the indemnity and contribution agreements of Column in Section 8 of the Column
Mortgage Loan Purchase Agreement.
9. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Purchaser, will be sent by regular prepaid
U.S. Mail or prepaid reputable overnight courier or delivered by hand and
confirmed to it at 277 Park Avenue, 9th Floor, New York, New York 10172,
Attention: N. Dante LaRocca, or such other address as may be designated by the
Purchaser to the Seller in writing, or, if sent to the Seller or GECC, will be
sent by regular prepaid U.S. Mail or prepaid reliable overnight courier or
delivered by hand and confirmed to the Seller or GECC, as applicable, at 292
Long Ridge Rd., Stamford, Connecticut 06927, Attention: Kathy A. Cassidy, fax
no. 203/357-6364, or such other address as may be designated by the Seller or
GECC to the Purchaser in writing.
10. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may not be changed in any manner which would have a
material adverse effect on Holders of the Certificates without the prior written
consent of the Trustee. This Agreement also may not be changed in any manner
which would have a material adverse effect on any other third party beneficiary
hereof without the prior written consent of that person. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
in Section 11 hereof.
11. Third Party Beneficiaries.
(a) The Trustee and the Certificateholders are intended third party
beneficiaries of the representations, warranties and covenants made by the
Seller in Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent relevant to
the foregoing, in Sections 9, 10, 12, 13, 14, 15, 16, 17 and 19) of this
Agreement. It is acknowledged that such representations, warranties and
covenants of the Seller may be enforced by the Trustee against the Seller, on
behalf of itself and the Certificateholders, to the same extent as if they were
parties hereto.
(b) DLJSC is an intended third party beneficiary of the representations,
warranties and covenants of the Seller set forth in Sections 3 (a), 5, 6, and 8
and the covenants of GECC set forth in Section 20 (and, to the extent relevant
to the foregoing, in Sections 10, 13, 14, 15, 16 and 17) of this Agreement. It
is acknowledged and agreed that such representations, warranties and covenants
may be enforced by or on behalf of DLJSC against the Seller and, with respect to
Section 20, GECC to the same extent as if it was a party hereto.
(c) Column and each of the officers, directors, employees, agents,
controlling persons and affiliates of the Purchaser, DLJSC, and Column referred
to in Section 8 hereof is an intended third party beneficiary of the
representations, warranties, covenants and indemnities of the Seller set forth
in Section 8 and the covenants of GECC set forth in Section 20 (and, to the
extent relevant to the foregoing, in Sections 10, 13, 14, 15, 16 and 17) of this
Agreement. It is acknowledged and agreed that such representations, warranties,
covenants and indemnities may be enforced by or on behalf of any such person or
entity against the Seller and, with respect to Section 20, GECC to the same
extent as if such person or entity was a party hereto.
M-2-12
<PAGE>
(d) Each of the officers, directors, employees, agents, controlling
persons and affiliates of the Seller referred to in Section 8 hereof is an
intended third party beneficiary of the representations, warranties, covenants
and indemnities of the Purchaser set forth in Section 8 and the covenants of DLJ
Mortgage Capital, Inc. ("DLJMC") set forth in Section 20 (and, to the extent
relevant to the foregoing, in Sections 10, 13, 14, 15 and 16) of this Agreement.
It is acknowledged and agreed that such representations, warranties, covenants
and indemnities may be enforced by or on behalf of any such person or entity
against the Purchaser and, with respect to Section 20, DLJMC to the same extent
as if such person or entity was a party hereto.
12. Characterization. It is the express intent of the parties hereto that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans, the Loan REMIC Regular Interests and the Loan
REMIC Residual Interests. Furthermore, it is not the intention of the parties
that such conveyance be deemed a pledge of the Mortgage Loans, the Loan REMIC
Regular Interests and the Loan REMIC Residual Interests by the Seller to secure
a debt or other obligation of the Seller.
13. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans, the Loan REMIC
Regular Interests and the Loan REMIC Residual Interests by the Seller to the
Purchaser (and by the Purchaser to the Trustee), notwithstanding any restrictive
or qualified endorsement or assignment in respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or is held to be void or unenforceable in any particular jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties hereto waive any
provision of law which prohibits or renders void or unenforceable any provision
hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the substantive laws of the State
of New York, applicable to agreements made and to be performed entirely in said
state. The Seller hereby irrevocably (i) submits to the jurisdiction of any
federal courts sitting in New York City with respect to matters arising out of
or relating to this Agreement (or, if federal jurisdiction does not apply, then
New York State courts); (ii) agrees that all claims with respect to such action
or proceeding may be heard and determined in such courts; (iii) waives, to the
fullest possible extent, the defense of an inconvenient forum; and (iv) agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
16. Further Assurances. The Seller and the Purchaser agree to execute and
deliver such instruments and take such further actions as the other party may,
from time to time, reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
M-2-13
<PAGE>
17. Successors and Assigns. The rights and obligations of the Seller and
GECC under this Agreement shall not be assigned by the Seller or GECC, as the
case may be, without the prior written consent of the Purchaser, except that any
person into which the Seller or GECC, as the case may be, may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller or GECC, as the case may be, is a party, or
any person succeeding to all or substantially all of the business of the Seller
or GECC, as the case may be, shall be the successor to the Seller or GECC, as
the case may be, hereunder. The Purchaser has the right to assign its interest
under this Agreement (other than Sections 8 and 20), in whole or in part, as
contemplated by Section 4(c) or as may otherwise be required to effect the
purposes of the Pooling and Servicing Agreement, and the assignee shall, to the
extent of such assignment, succeed to the rights and obligations hereunder of
the Purchaser.
18. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document, and shall verify the accuracy thereof.
19. Cross-Collateralized Mortgage Loans. Notwithstanding anything herein
to the contrary, it is hereby acknowledged that certain groups of Mortgage Loans
are, in the case of each such particular group of Mortgage Loans (each, a
"Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
19 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 19. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" and covering all the Mortgage Loans in such
Cross-Collateralized Group, the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
20. Joinder. General Electric Capital Corporation ("GECC") agrees, in
consideration of and as an inducement to the Purchaser's purchase of the
Mortgage Loans from the Seller, to indemnify and hold harmless the Purchaser,
DLJSC, Column, their respective officers and directors, and any person who
controls any of the Purchaser, DLJSC or Column within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, against any failure by
the Seller to perform any of its obligations under Section 8 hereof (as they
relate to the indemnity agreement of the Seller in Section 8(a) and the
corresponding contribution obligations in Section 8(c)) (the "GECC Covered
Obligations"), promptly after receipt from any indemnified party of written
notice of any such failure. DLJMC agrees, in consideration of and as an
inducement to the Seller's sale of the Mortgage Loans to the Purchaser, to
indemnify and hold harmless the Seller, its officers and directors, and any
person who controls the Seller within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any failure by the
Purchaser to perform any of its obligations under Section 8 hereof (as they
relate to the indemnity agreement of the Purchaser in Section 8(b) and the
corresponding contribution obligations in Section 8(c)) (the "DLJMC Covered
Obligations" and, together with the GECC Covered Obligations, the "Covered
Obligations"), promptly after receipt from any indemnified party of written
notice of any such failure. Each of GECC and DLJMC hereby waives notice of
acceptance of its obligations hereunder and notice of any obligation or
liability to which it may apply, and waives presentment, demand for payment,
protest, notice of dishonor or non-payment of any such obligation or liability,
suit or the taking of other action by any party hereto against, and any other
notice to GECC and DLJMC, as applicable. Each of GECC's and DLJMC's obligations
hereunder shall not be affected by any events, occurrences or circumstances
which
M-2-14
<PAGE>
might otherwise constitute a legal or equitable discharge or defense of a
guarantor or surety and such obligations will only be discharged by full,
complete and final payment of the related Covered Obligations.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
GE CAPITAL ACCESS, INC.
By:_______________________________
Name:
Title: Authorized Signatory
DLJ COMMERCIAL MORTGAGE CORP.
By: _______________________________
Name:
Title:
SOLELY FOR PURPOSES OF SECTION 20
(AND SECTION 8) OF THIS AGREEMENT:
GENERAL ELECTRIC CAPITAL CORPORATION
By:_______________________________
Name:
Title: Authorized Signatory
SOLELY FOR PURPOSES OF SECTION 20
(AND SECTION 8) OF THIS AGREEMENT:
DLJ MORTGAGE CAPITAL, INC.
By: _______________________________
Name:
Title:
M-2-15
<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller
with Respect to the Mortgage Loans
The documents and instruments to be delivered to the Trustee (or a
Custodian on behalf of the Trustee) in respect of each Mortgage Loan pursuant to
Section 2(b) of this Agreement are, subject to Section 19, as follows:
(i) the original executed Mortgage Note, endorsed (without recourse) to
the order of Norwest Bank Minnesota, National Association, as trustee for
the registered holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-CG3;
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in clause (iv)
below, in each case with evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
below, in each case with evidence of recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of Norwest
Bank Minnesota, National Association, as trustee for the registered
holders of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, in recordable form;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in favor of Norwest Bank
Minnesota, National Association, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, in recordable form;
(vi) originals or copies of any written assumption, modification, written
assurance and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been modified or the
Mortgage Loan has been assumed;
(vii) the original or a copy of the policy of lender's title insurance
issued on the date of the origination of such Mortgage Loan (provided, if
such policy has not yet been issued, a pro forma policy or an irrevocable,
binding commitment to issue such title insurance policy shall be delivered
pending receipt of the final policy from the title insurer);
(viii) filed copies of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with
the applicable public office for UCC Financing Statements, an original
UCC-2 or UCC-3, as appropriate, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-CG3;
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(ix) any environmental indemnity agreement and the original or a copy of
any Environmental Insurance Policy relating solely to such Mortgage Loan;
(x) any power of attorney, property management agreement, ground lease,
intercreditor agreement, cash management agreement and lock-box agreement
relating to such Mortgage Loan;
(xi) any original documents (including any security agreements and any
Letters of Credit and related letter of credit reimbursement agreements)
relating to Additional Collateral;
(xii) insurance certificates relating to hazard insurance policies
maintained by the Borrower with respect to the related Mortgaged Property
that are in the possession of Seller; and
(xiii) any other documents identified in the Pooling and Servicing
Agreement as constituting part of the Mortgage File;
provided that the evidence of recording referred to in clauses (ii) and (iii)
shall not be required prior to the second anniversary of the Closing Date if the
subject document has not been returned from the applicable recording office.
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Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a Delaware corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business, is
duly qualified as a foreign corporation in good standing in all jurisdictions in
which the ownership or lease of its property or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the ability of the Seller to perform its
obligations hereunder, and the Seller has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement by it,
and has the corporate power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign, transfer, set over and
convey the Mortgage Loans in accordance with this Agreement;
(b) This Agreement has been duly authorized, executed and delivered by the
Seller and assuming its due authorization, execution and delivery by the
Purchaser, will constitute a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
or by public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(c) The execution and delivery of this Agreement by the Seller and the
performance of its obligations hereunder (1) will not conflict with any
provision of any law or regulation to which the Seller is subject, or conflict
with, result in a breach of or constitute a default under any of the terms,
conditions or provisions of any of the Seller's organizational documents or any
agreement or instrument to which the Seller is a party or by which it is bound,
or any order or decree applicable to the Seller, or result in the creation or
imposition of any lien on any of the Seller's assets or property, in each case
which would materially and adversely affect the ability of the Seller to carry
out the transactions contemplated by this Agreement; and (2) does not require
the consent of any third party or such consent has been obtained;
(d) There is no action, suit, proceeding or investigation pending or, to
the knowledge of the Seller, threatened against the Seller in any court or by or
before any other governmental agency or instrumentality which, in the Seller's
good faith and reasonable judgment, would materially and adversely affect the
validity of this Agreement or the ability of the Seller to enter into, and carry
out the transactions contemplated by, this Agreement;
(e) The Seller is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that, in the Seller's
good faith and reasonable judgment, would materially and adversely affect the
condition (financial or otherwise) or operations of the Seller or its properties
or might have consequences that would materially and adversely affect its
performance hereunder;
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(f) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body is required for the
execution, delivery and performance by the Seller of or compliance by the Seller
with this Agreement or the consummation of the transactions contemplated by this
Agreement, other than those which have been obtained by the Seller;
(g) The Seller is a wholly-owned subsidiary of General Electric Capital
Corporation.
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Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge" and
other words and phrases of like import shall mean the actual state of knowledge
of the Seller regarding the matters referred to, in each case without having
conducted any independent inquiry into such matters and without any obligation
to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the date
hereinbelow specified or, if no such date is specified, as of the Closing Date
and subject to Section 19 of this Agreement and the exceptions set forth in
Schedule C-1 attached hereto:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of the Pooling and Servicing Agreement) and
correct in all material respects as of the date of this Agreement and as of the
Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer to
the Purchaser of the Mortgage Loans, the Seller had good and marketable title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each Mortgage Loan to or at the
direction of the Purchaser free and clear of any and all pledges, liens,
charges, security interests and/or other encumbrances. Upon completion of the
conveyance contemplated hereby, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to such
Mortgage Loan free and clear of any pledge, lien or security interest created by
or through the Seller. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
3. Payment Record. As of the Closing Date, no scheduled payment of
principal and interest under any Mortgage Loan was thirty (30) days or more past
due, and no Mortgage Loan has been thirty (30) days or more delinquent in the
twelve-month period immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or a "marked-up" commitment), none of which
materially interferes with the security intended to be provided by such
Mortgage, the current use of the related Mortgaged Property or the current
ability of the related Mortgaged Property to generate income sufficient to
service the related Mortgage Loan, (c) exceptions and exclusions specifically
referred to in such lender's title insurance policy (or such pro forma title
policy or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current use of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, (d)
other matters to which like properties are commonly subject, none of which
materially interferes with the security intended to be provided by such
Mortgage, the use of the related Mortgaged Property or the current ability of
the related Mortgaged Property to generate income sufficient to service the
related Mortgage Loan, and (e) if such Mortgage Loan is a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan
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contained in the same Cross-Collateralized Group (the foregoing items (a)
through (e) being herein referred to as the "Permitted Encumbrances"). The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form and, subject to the exceptions set forth in
Paragraph 13 below, constitutes a legal, valid, binding and enforceable
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Borrower's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
connection with the operation of the Mortgaged Property as either a (i)
Hospitality Property or (ii) independent/assisted living or healthcare facility,
the security agreements, financing statements or other instruments, if any,
related to each Mortgage Loan establish and create a valid security interest in
all items of personal property owned by the related Borrower material to the
conduct in the ordinary course of the Borrower's business conducted on the
related Mortgaged Property, subject only to purchase money security interests
and security interests to secure revolving lines of credit and similar
financing. Subject to the exceptions set forth in Paragraph 13 below, the
related assignment of such security interest executed and delivered in favor of
the Purchaser constitutes a legal, valid, binding and enforceable assignment
thereof from the relevant assignor to the Purchaser.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in
the related Borrower's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the related Mortgaged Property, and each assignor
thereunder has the full right to assign the same. The related assignment of such
Assignment of Leases executed and delivered in favor of the Trustee is in
recordable form and, subject to the exceptions set forth in Paragraph 13 below,
constitutes a legal, valid, binding and enforceable 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. No person owns any interest
in any payments due under the related leases that is superior to the lien
created by such Assignment of Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage related
to a Mortgage Loan has been satisfied, canceled, rescinded or subordinated in
whole or in material part, and the related Mortgaged Property has not been
released from the lien of such Mortgage, in whole or in material part, nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases related to a Mortgage Loan have
been impaired, waived, altered or modified in any respect, except by written
instruments, all of which are included in the related Mortgage File. No Mortgage
Loan has been modified in any manner such that the terms of such Mortgage Loan,
as so modified, are materially (and adversely to the owner thereof) different
from the terms of such Mortgage Loan described in the Prospectus.
7. Condition of Property; Condemnation. Each Mortgaged Property
securing a Mortgage Loan is, to the Seller's knowledge, free and clear of any
damage that would materially and adversely affect its value as security for such
Mortgage Loan. The Seller has not received notice (and is not otherwise aware)
of any proceeding pending for the total or partial condemnation of or affecting
the Mortgaged Property securing any Mortgage Loan. As of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property.
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<PAGE>
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") in the original principal
amount of such Mortgage Loan after all advances of principal insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the exceptions stated therein (or a pro forma title policy or
marked up title insurance commitment on which the required premium has been paid
exists which evidences that such Title Policy will be issued). Such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid, and no material claims
have been made thereunder and no claims have been paid thereunder (and the
Seller has not received notice of any material claims having been made or paid
thereunder). No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. The insurer issuing such Title Policy is
qualified to do business in the jurisdiction in which the related Mortgaged
Property is located, and with respect to at least a majority of the Mortgage
Loans (by outstanding principal balance as of the Cut-off Date) the insurer is a
nationally recognized insurer. Such Title Policy contains no exclusion for, or
it affirmatively insures, (unless, with respect to (b) and (c) only, the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available) (a) access to a public road, (b) that there are no material
encroachments of any part of the improvements on the related Mortgaged Property
over easements, which encroachments could reasonably be expected to materially
interfere with the use of the related Mortgaged Property and (c) that the area
shown on the survey conducted in connection with the origination of the related
Mortgage Loan is the same as the property legally described in the related
Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been made but a portion thereof is being held back pending the satisfaction of
certain leasing or other economic criteria with respect to the related Mortgaged
Property), and there is no obligation for future advances with respect thereto.
Any and all requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds escrowed
for such purpose, which requirements were to have been complied with on or
before the Closing Date, have been complied with or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in Paragraph 13
below) such as to render the rights and remedies of the holder thereof adequate
for the practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect of any
Mortgage Loan is a deed of trust, (a) a trustee, duly qualified under applicable
law to serve as such, is properly designated and serving under such Mortgage,
and (b) except in connection with a trustee's sale after default by the related
Borrower, no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof.
12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and either (x) no
such Environmental Report reveals any known circumstances or conditions with
respect to the related Mortgaged Property that rendered such Mortgaged Property,
at the date of such Environmental Report, in material violation of any
applicable environmental laws or (y) if any such Environmental Report does
reveal any such circumstances or conditions with respect to the related
Mortgaged Property and the same have not been subsequently remediated in all
material respects, then either (i) the expenditure of funds necessary
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to effect such remediation is not material in relation to the outstanding
principal balance of the related Mortgage Loan and such remediation would not
materially and adversely affect the value of the Mortgaged Property, or (ii) a
sufficient escrow of funds exists for purposes of effecting such remediation, or
(iii) the related Borrower or other responsible party is currently taking such
actions, if any, with respect to such circumstances or conditions as have been
required by the applicable governmental regulatory authority or (iv) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions. To the Seller's knowledge, there
are no circumstances or conditions with respect to such Mortgaged Property not
revealed in such Environmental Report that render such Mortgaged Property in
material violation of any applicable environmental laws. The Mortgage
encumbering such Mortgaged Property requires the related Borrower to comply with
all applicable federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), and each assignment of Mortgage and assignment of
Assignment of Leases executed by the Seller is the legal valid and binding
obligation of the Seller, and each such Mortgage Note, Mortgage and other
agreement and each such assignment of Mortgage and assignment of Assignment of
Leases is enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and there is no valid defense, counterclaim or
right of offset or rescission available to the related Borrower with respect to
such Mortgage Note, Mortgage or other agreements.
14. Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured against loss by hazards of extended
coverage in an amount at least equal to the lesser of the outstanding principal
balance of such Mortgage Loan and 100% of the full replacement cost of the
improvements located on the related Mortgaged Property, and if applicable, the
related hazard insurance policy contains appropriate endorsements to avoid the
application of co-insurance and does not permit reduction in insurance proceeds
for depreciation. Each Mortgaged Property securing a Mortgage Loan is the
subject of a business interruption insurance policy providing coverage for at
least six (6) months. If any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such Mortgage
Loan, in an area identified in the Federal Register by the Flood Emergency
Management Agency as having special flood hazards, and flood insurance was
available, a flood insurance policy meeting any requirements of the then current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the outstanding principal balance of such Mortgage Loan, (2)
the full insurable value of such Mortgaged Property, and (3) the maximum amount
of insurance available under the National Flood Insurance Act of 1968, as
amended. All such hazard and flood insurance policies contain a standard "New
York" mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without prior written notice
to the mortgagee, and all premiums payable thereon as of the Closing Date,
whether annual or otherwise, have been paid. Each Mortgaged Property securing a
Mortgage Loan is also covered by comprehensive general liability insurance in an
amount at least equal to $1 million per occurrence. Each Mortgage requires that
the Borrower maintain insurance as described above or permits the Mortgagee to
require insurance as described above. No notice of termination, cancellation or
reduction has been received by the Seller with respect to any such hazard, flood
or liability insurance policy. The Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan,
except to the extent that (i) the Mortgage entitles the Borrower to any portion
of such proceeds remaining after the repair or restoration of the Mortgaged
Property and payment of amounts due under the Mortgage Loan, and (ii) the
Borrower's
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interest in the Mortgaged Property is a leasehold interest (in which case, the
provisions of the Mortgage Loan documents relating to the application of the
proceeds of casualty insurance policies are as described in Item 18(i)).
15. Taxes and Assessments. To the Seller's knowledge, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan which are or may become a lien of priority
equal to or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is, to
the Seller's knowledge, a debtor in any state or federal bankruptcy or
insolvency proceeding.
17. Local Law Compliance. To the best of the Seller's knowledge
based on due diligence customarily undertaken by prudent institutional mortgage
lenders, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property.
18. Leasehold Estate Only. If "Leasehold" is set forth opposite the
name of the related Mortgaged Property on the Mortgage Loan Schedule, such
Mortgage Loan is secured by the interest of a Borrower as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease") (with respect to
Representations 18 and 19, the term "Ground Lease" shall mean such ground lease,
all written amendments and modifications, and any related estoppels or
agreements from the ground lessor), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage;
and there has been no material change in the terms of such
Ground Lease since its recordation, with the exception of
written instruments which are a part of the related Mortgage
File;
(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns
upon notice to, but without the need to obtain the consent of,
such lessor;
(d) At the date of origination, such Ground Lease was in full
force and effect, and the Seller has not received as of the
Closing Date notice (nor is the Seller otherwise aware) that
any default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under
such Mortgage Loan (provided that such mortgagee has provided
the lessor with notice of its lien in accordance with the
provisions of such Ground Lease), and such Ground Lease, or an
estoppel letter received by the mortgagee from the lessor,
further provides that no notice of
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termination given under such Ground Lease is effective against
such mortgagee unless a copy has been delivered to such
mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient
time to gain possession of the interest of the lessee under
such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such
Ground Lease;
(g) Such Ground Lease has a current term which extends not less
than ten (10) years beyond the Stated Maturity Date of the
related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new
lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds (other than in
respect of a total or substantially total loss or taking) will
be applied either (i) to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee
under such Mortgage Loan or a trustee appointed by it having
the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (ii) to the payment of the
outstanding principal balance of such Mortgage Loan together
with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable
by a prudent commercial mortgage lender; and such Ground Lease
contains a covenant that the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb
the possession, interest or quiet enjoyment of any lessee in
the relevant portion of the Mortgaged Property subject to such
Ground Lease for any reason, or in any manner, which would
materially adversely affect the security provided by the
related Mortgage;
(k) Such Ground Lease may not be amended or modified without the
prior consent of the mortgagee under such Mortgage Loan and
that any such action without such consent is not binding on
such mortgagee, its successors or assigns;
(l) Unless otherwise set forth in such Ground Lease, such Ground
Lease does not permit any increase in the amount of rent
payable by the ground lessee thereunder during the term of
such Mortgage Loan; and
(m) The terms of such Ground Lease have not been waived, modified,
satisfied, impaired, canceled, subordinated or rescinded in
any manner which materially interferes with the security
intended to be provided by the related Mortgage.
19. Leasehold Estate and Fee Interest. If "Fee/Leasehold" is set
forth opposite the name of the of the related Mortgaged Property on the Mortgage
Loan Schedule, such Mortgage Loan is secured in whole or in part by the interest
of the related Borrower under a Ground Lease and by the related Fee Interest
and:
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(a) Such Fee Interest is subject, and subordinated of record, to
the related Mortgage; and the related Mortgage does not by its
terms provide that it will be subordinated to the lien of any
other mortgage or other lien upon such Fee Interest; and
(b) Upon occurrence of a default under the terms of the related
Mortgage by the Borrower, the mortgagee has the right to
foreclose upon or otherwise exercise its rights with respect
to such Fee Interest within a period of time that would not
have been viewed, as of the date of origination, as
commercially unreasonable by a prudent commercial mortgage
lender.
20. Escrow Deposits. With respect to escrow deposits and payments
relating to any Mortgage Loan, all such payments have been delivered to the
Master Servicer, and there exist no deficiencies in connection therewith for
which customary arrangements for repayment thereof have not been made.
21. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code.
22. Advancement of Funds. No holder of a Mortgage Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
23. Equity Interest. No Mortgage Loan is automatically convertible
into an equity ownership interest in the related Mortgaged Property or the
related Borrower.
24. Legal Proceedings. To the Seller's knowledge, there are no
pending or threatened actions, suits or proceedings by or before any court or
governmental authority against or affecting the Borrower under any Mortgage Loan
or the related Mortgaged Property that can reasonably be expected to materially
and adversely affect or interfere with the security intended to be provided by
the related Mortgage, the current use of the Mortgaged Property, or the ability
of the Mortgaged Property to generate net cash flow sufficient to service such
Mortgage Loan.
25. Other Mortgage Liens. Except as otherwise described under
"Description of the Mortgage Pool--Additional Loan and Property
Information--Additional and Other Financing" in the Prospectus Supplement, none
of the Mortgage Loans permits the related Mortgaged Property to be encumbered by
any mortgage lien junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof. To the
Seller's knowledge, except as otherwise specified under "Description of the
Mortgage Pool--Additional Loan and Property Information--Additional and Other
Financing" in the Prospectus Supplement, and except for cases involving other
Mortgage Loans, the Mortgaged Properties are not encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgages.
26. No Mechanics' Liens. To the Seller's knowledge, (i) each
Mortgaged Property securing a Mortgage Loan is free and clear of any and all
mechanics' and materialmen's liens that are not bonded or escrowed for, and (ii)
no rights are outstanding that under law could give rise to any such lien that
would be prior or equal to the lien of the related Mortgage. The Seller has not
received notice with respect to any Mortgage Loan that any mechanics' and
materialmen's liens have encumbered the related Mortgaged Property since
origination that have not been released, bonded or escrowed for.
M-2-7
<PAGE>
27. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
28. Licenses and Permits. To the Seller's knowledge, based on due
diligence customarily performed by commercially reasonable lenders in the
origination of comparable mortgage loans, as of the date of origination of each
Mortgage Loan, (i) the related Borrower (or operator of the Mortgaged Property)
had all material licenses, permits and authorizations required by applicable law
for the ownership and operation of the related Mortgaged Property and (ii) all
such licenses, permits and authorizations were valid and in full force and
effect.
29. Servicing Practices. The servicing and collection practices used
with respect to the Mortgage Loans have in all material respects been legal and
met customary standards utilized by prudent institutional commercial and
multifamily mortgage loan master servicers.
30. Cross-collateralization. No Mortgage Loan is
cross-collateralized with any loan other than one or more other Mortgage Loans.
31. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property from the lien of the
related Mortgage except upon (i) payment in full of all amounts due under the
related Mortgage Loan, or (ii) delivery of U.S. Treasury securities in
connection with a defeasance of the related Mortgage Loan. The
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or, in the case of a
Cross- Collateralized Group, the release of one or more related Mortgaged
Properties upon (a) the satisfaction of certain legal and underwriting
requirements and (b) the payment of a release price or delivery of U.S. Treasury
securities as defeasance collateral in connection therewith.
32. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provide for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that during the period commencing on or about the Anticipated Repayment Date and
continuing until such Mortgage Loan is paid in full (i) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (ii) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
33. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
34. Inspection. In connection with the origination of each Mortgage
Loan, the Seller inspected, or caused the inspection of, the related Mortgaged
Property.
35. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any
M-2-8
<PAGE>
of the foregoing) under the Mortgage Note or Mortgage for any Mortgage Loan, in
any such case to the extent the same materially and adversely affects the value
of the Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not cover any default, breach, violation
or event of acceleration that specifically pertains to or arises out of the
subject matter otherwise covered by any other representation and warranty made
by the Seller in this Exhibit C.
36. Due-on-Sale. Subject to exceptions set forth in the related
Mortgage, such Mortgage contains a "due- on-sale" clause that provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder, the Mortgaged Property
subject to such Mortgage, or any controlling interest in the related Borrower,
is directly or indirectly transferred or sold.
37. Single Purpose Entity. The Borrower on each Mortgage Loan that,
individually or together with the Mortgage Loans of affiliated Borrowers,
represented 5% or more of the Initial Pool Balance, was, as of the origination
of the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single
Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
38. Whole Loan. Each Mortgage loan is a whole loan and not a
participation interest in a mortgage loan.
39. Delivery of Mortgage File. The Seller has delivered to the
Trustee or a Custodian appointed thereby, with respect to each Mortgage Loan, in
accordance with Section 2 of this Agreement, a complete Mortgage File.
40. ARD Loans. As of the Closing Date, each ARD Loan requires
scheduled monthly payments of principal. If any ARD Loan is not paid in full by
its Anticipated Repayment Date, and assuming that it is not otherwise in
default, the rate at which such ARD Loan accrues interest will increase to the
sum of the original Mortgage Rate and a specified margin (such margin, the
"Additional Interest Rate").
41. No Waivers. The Seller has not waived any material default,
breach, violation or event of acceleration existing under the Mortgage or
Mortgage Note for any Mortgage Loan, except by a written instrument contained in
the related Mortgage File, which instrument has been taken into account by the
Seller when giving the representations and warranties set forth herein.
42. Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
43. Defeasance Provision. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral either (A) requires the
consent of the holder of the Mortgage Loan to any defeasance or (B) permits
defeasance (i) no earlier than two years following the Closing Date (or, in the
case of a Mortgage Loan in a Loan REMIC,
M-2-9
<PAGE>
no earlier than two years following the "startup date" of that Loan REMIC), (ii)
only with substitute collateral constituting "government securities" within the
meaning of Treasury Regulation Section 1.860G-2(a)(8)(i) and (iii) only to
facilitate the disposition of mortgage real property and not as part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
44. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in a few instances application has been made or the Borrower is
required to make application to the applicable governing authority for creation
of separate tax lots which shall be effective for the next tax year.
45. Monthly Payment. Each Mortgage Loan has a Monthly Payment due on
October 1, 1999, which is required to include interest for an entire month (as
determined on a 30/360 basis or an actual/360 basis, whichever basis applies
under the terms of such Mortgage Loan).
46. Fee Interest. If "Fee" is set forth opposite the name of the
related Mortgaged Property on the Mortgage Loan Schedule, the interest of the
related Borrower in such Mortgaged Property is a fee simple interest in real
property.
47. Collateral. The Mortgage Note is not secured by any collateral
that is not conveyed pursuant to this Agreement.
48. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to such Mortgage
Loan, if any, constitutes "customary prepayment penalties" within meaning of
Treasury Regulation Section 1.860G-1( b)(2).
49. Delivery of Financial Information. The related Borrower
covenanted under the related Mortgage Loan documents to deliver at least
annually to the mortgagee under each Mortgage Loan an operating statement of the
related Mortgaged Property.
50. Servicing Rights. Except as set forth on Schedule C-2 or as
otherwise contemplated in this Agreement, no Person has been granted or conveyed
the right to the service such Mortgage Loan or receive any consideration in
connection therewith.
51. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee, including rating agency fees, accountant's fees and lender's
attorney's fees and expenses, in connection with the defeasance of such Mortgage
Loan.
M-2-10
<PAGE>
Schedule C-1
GECA Mortgage Loan Exceptions
(References are to Numbered Representations in Mortgage Loan Purchase Agreement)
REP NO.
- -------
18. (e) Legg Mason Center. The subject ground lease was executed in 1857 and
contains no express provision obligating the ground lessor to
provide notice of default to the ground lessee or its lender. The
only express ground lessee obligation is to pay rent ($180
annually), and the required ground rent for the duration of the loan
was has been escrowed. Further, the ground lessor's remedy for
breach would be to prosecute a judicial action for distress, which
would entail notice to affected parties and, practically, the
opportunity to cure.
(f) Legg Mason Center. The subject ground lease was executed in 1857 and
contains no express provision affording the leasehold mortgagee the
right to cure ground lessee defaults. The only express ground lessee
obligation is to pay rent ($180 annually), and the required ground
rent for the duration of the loan was has been escrowed. Further,
the ground lessor's remedy for breach would be to prosecute a
judicial action for distress, which would entail notice to affected
parties and, practically, the opportunity to cure.
(h) Legg Mason Center. The subject ground lease was executed in 1857 and
contains no express provision obligating the ground lessor to enter
into a new lease with the leasehold mortgagee upon termination of
the ground lease for any reason. The only express ground lessee
obligation is to pay rent ($180 annually), and the required ground
rent for the duration of the loan was has been escrowed. Further,
the ground lessor's remedy for breach would be to prosecute a
judicial action for distress, which would entail notice to affected
parties and, practically, the opportunity to cure.
(j) Legg Mason Center. The subject ground lease was executed in 1857 and
contains no express covenant of quiet enjoyment.
(k) Legg Mason Center. The subject ground lease was executed in 1857 and
contains no express covenant on this issue.
<PAGE>
Schedule C-2
Subservicer Loan
----------- ----
L.J. Melody West Main Place
Holliday Fenoglio Niki's Point Apartments
L.J. Melody Park 80 East
L.J. Melody Stockdale Town Center
L.J. Melody Federal Point Station
Laureate Capital Park Park 51 Medical Building
L.J. Melody Village Center
<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
Certificate of Secretary of GE Capital Access, Inc.
I, ____________________, a Secretary of GE Capital Access, Inc.
("GECA") hereby certify as follows:
1. GECA is validly existing and in good standing under the laws of
the State of Delaware.
2. Attached hereto as Exhibit I are true and correct copies of the
Articles of Incorporation and By-Laws of GECA, which Articles of Incorporation
and By-Laws are on the date hereof, and have been at all times, in full force
and effect.
3. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of GECA are pending or contemplated.
4. Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of GECA and his/her genuine signature
is set forth opposite his/her name:
Name Office Signature
---- ------ ---------
5. Each person listed above who signed, either manually or by
facsimile signature, the Mortgage Loan Purchase and Sale Agreement, dated as of
October ___, 1999 (the "Agreement"), between DLJ Commercial Mortgage Corp.
("DLJCMC") and GECA, or any certificate delivered pursuant thereto, was, at the
time of such signing and delivery, duly authorized or appointed to execute such
document in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such document are their genuine signatures.
6. Attached hereto as Exhibit II is a true and correct copy of the
resolutions of the Board of Directors of GECA enacted on _______________
authorizing the Agreement and the consummation of the transactions contemplated
thereby. Such resolutions have not been rescinded and, as of the date hereof,
remain in full force and effect.
Capitalized terms used but not defined herein have the respective
meanings given to them in the Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of ___________, 1999.
________________________________________
Name:
Title: Secretary
I, _______________, a ____________________ of GECA, hereby certify
that __________________ is a duly elected or appointed, as the case may be,
qualified and acting Secretary of GECA and that the signature appearing above is
such officer's genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of ___________, 1999.
________________________________________
Name:
Title:
<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
Certificate of GE Capital Access, Inc.
In connection with the execution and delivery by GE Capital Access, Inc.
("GECA") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase and Sale Agreement, dated as of October __,
1999 (the "Agreement"), between DLJ Commercial Mortgage Corp., as purchaser, and
GECA, as seller, the undersigned hereby certifies that (i) the representations
and warranties of GECA in the Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) GECA has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part required under the
Agreement to be performed or satisfied at or prior to the date hereof.
Certified this ____ day of October, 1999.
GE CAPITAL ACCESS, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
<PAGE>
Exhibit D-3A
Opinion of In-House Counsel to the Seller
Based upon and subject to the foregoing, it is my opinion that:
1. The Seller is a corporation validly existing and in good standing
under the laws of the State of Delaware and has the requisite
corporate power to own its properties, to conduct its business as
presently conducted by it, to own the GECA Mortgage Loans, to sell
the GECA Mortgage Loans to the Depositor and to enter into and
perform its obligations under the Mortgage Loan Purchase Agreement.
2. GECC is a corporation validly existing and in good standing under
the laws of the State of New York and has the requisite corporate
power to enter into and perform its obligations under the Mortgage
Loan Purchase Agreement.
3. The Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by the Seller and GECC.
4. No consent, approval, authorization or order of any State of New
York or federal court or governmental agency or body is required for
the consummation by the Seller of the transaction contemplated by
the Mortgage Loan Purchase Agreement except for those consents,
approvals, authorizations or orders that previously have been
obtained.
5. Neither the sale of the GECA Mortgage Loans as provided in the
Mortgage Loan Purchase Agreement, nor the fulfillment of the terms
or the consummation of any other of the transactions contemplated by
the Mortgage Loan Purchase Agreement, will result in a breach of the
certificate of incorporation or by-laws of the Seller or, to my
knowledge, will conflict with, result in a breach, violation or
acceleration of or constitute a default under, any indenture or
other agreement or instrument to which the Seller is a party or by
which it is bound, or any State of New York or federal statute
applicable to the Seller, or any order or regulation of any State of
New York or federal court, regulatory body, administrative agency or
other governmental body having jurisdiction over the Seller.
6. To my knowledge, there are no actions, proceedings or investigations
pending or threatened against the Seller before any State of New
York or State of Delaware or federal court, administrative agency or
other tribunal (a) asserting the invalidity of the Mortgage Loan
Purchase Agreement, (b) seeking to prevent the consummation of any
of the transactions contemplated in the Mortgage Loan Purchase
Agreement or (c) that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity
or enforceability of, the Mortgage Loan Purchase Agreement.
<PAGE>
Exhibit D-3B
Opinion of Counsel to the Seller
Based upon and subject to the foregoing, it is our opinion that the
Mortgage Loan Purchase Agreement constitutes the legal, valid and binding
obligations of the Seller, enforceable against the Seller in accordance with the
terms of the Mortgage Loan Purchase Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except to the extent rights to indemnity
and contribution may be limited by applicable law.
<PAGE>
Schedule 1
Mortgage Loan Schedule
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Street Adress City County State Zip Code Originator
Name
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
1 45 Broadway 45 Broadway New York New York NY 10006 GECA
2 Radisson South - 7800 Normandale Boulevard Bloomington Hennepin MN 55439 GECA
Bloomington (1A)
3 Le Meridien - 650 North Pearl Street Dallas Dallas TX 75201 GECA
Dallas (1A)
5 Westin Resort - 2 Grasslawn Avenue Hilton Head Beaufort SC 29928 GECA
Hilton Head Island Island
6 Southshore Beach & 901 Shorepoint Court Alameda Alameda CA 94501 GECA
Tennis Club
8 Yonkers Shopping 2500 Central Park Avenue Yonkers Westchester NY 10710 GECA
Center
9 The Atrium 1900 South Norfolk Street San Mateo San Mateo CA 94403 GECA
15 Rancho Verde 750 Rohnert Park Expressway Rohnert Park Sonoma CA 94928 GECA
Mobile Home Park
16 Commerce Centre 1777 Reisterstown Road Pikesville Baltimore MD 21208 GECA
20 The 700 Building 700 East Main Street Richmond Henrico VA 23219 GECA
22 BJ's Wholesale 6825 Dublin Center Drive Dublin Franklin OH 43017 GECA
Club
24 The Regency 505 Regency Drive Fayetteville Cumberland NC 28314 GECA
Apartments
27 Commons on 1111 Apache Boulevard Tempe Maricopa AZ 85289 GECA
Apache
28 Olympic Corporate 3940 Olympic Boulevard Erlanger Boone KY 41018 GECA
Center Building
29 Chaparral Village 400 West Baseline Road Tempe Maricopa AZ 85283 GECA
33 Oxford Square 1000 Village Greenway Cary Wake NC 27511 GECA
Apartments
34 Spectrum Retail 5888 Westheimer Road Houston Harris TX 77057 GECA
Center
36 Lamplighter - Chino 4400 Philadelphia Street Chino San CA 91710 GECA
Bernardino
37 Park 80 East Office 160 Pehle Avenue Saddle Brook Bergen NJ 7663 GECA
Building
39 Gold Ridge 2929 Routier Road Sacramento Sacramento CA 95827 GECA
Apartments
41 Moulton La Paz 26550 Moulton Parkway Laguna Hills Orange CA 92653 GECA
Shopping Center
43 Landmark Hotel 920 North Rampart Street New Orleans New LA 70116 GECA
Orleans
44 Legg Mason Center 600 Washington Avenue Towson Baltimore MD 21204 GECA
47 Lakeside Village 9665-9669 North Central Dallas Dallas TX 75231 GECA
Shopping Center Expressway
49 Richmond Tower 3411 Richmond Avenue Houston Harris TX 77046 GECA
52 West Main Place 25-55 South Raymond Avenue, 10- Alhambra Los CA 91801 GECA
88 South Palm Avenue, 2000 West Angeles
Main Street
53 Oxon Run Manor 204-222 Wayne Place Washington District of DC 20032 GECA
Apartments Columbia
56 Heritage Hills 9227 and 9231 Lincoln Avenue Littleton Douglas CO 80124 GECA
Retail Center
59 Lehigh Street 2300 Lehigh Street Allentown Lehigh PA 18103 GECA
Shopping Center
62 Parkside Center 13881-13901 Midway Road Farmers Dallas TX 75244 GECA
Branch
63 Park 51 Medical 10512 Park Road Charlotte Mecklenburg NC 28210 GECA
Building
64 Quality Suites - 1010 University Drive East College Station Brazos TX 77840 GECA
College Station
65 King Arthur Mobile 81 Gallahad Way Bozeman Gallatin MT 59718 GECA
Home Park
68 Stockdale Town 3300-3536 Stine Road and 4701- Bakersfield Kern CA 93309 GECA
Center 4771 Planz Road
<CAPTION>
Original Remaining
# Loan/Property Original Cut-off Monthly Mortgage Rate Term Term
Name Loan Balance Payment
Balance
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
1 45 Broadway $49,000,000 $48,969,762 $373,646.67 8.410% 20 119
2 Radisson South - 30,300,000 30,237,096 235,871.08 8.100% 120 118
Bloomington (1A)
3 Le Meridien - 16,200,000 16,166,368 126,109.29 8.100% 120 118
Dallas (1A)
5 Westin Resort - 35,000,000 34,953,502 265,446.82 8.170% 120 118
Hilton Head Island
6 Southshore Beach & 35,000,000 34,941,132 251,470.26 7.780% 120 117
Tennis Club
8 Yonkers Shopping 30,000,000 29,561,900 209,742.76 6.880% 120 108
Center
9 The Atrium 27,500,000 27,468,959 201,401.97 7.980% 120 118
15 Rancho Verde 14,750,000 14,739,982 107,613.96 7.940% 120 119
Mobile Home Park
16 Commerce Centre 13,779,000 13,758,528 103,033.09 8.200% 120 117
20 The 700 Building 10,000,000 9,988,743 73,306.76 7.990% 120 118
22 BJ's Wholesale 8,789,000 8,779,602 65,596.81 8.180% 120 118
Club
24 The Regency 8,740,000 8,650,061 57,503.20 6.890% 240 227
Apartments
27 Commons on 8,080,000 8,060,016 57,384.40 7.660% 120 116
Apache
28 Olympic Corporate 8,000,000 7,991,375 59,539.85 8.150% 120 118
Center Building
29 Chaparral Village 7,999,000 7,979,972 57,637.83 7.810% 120 116
33 Oxford Square 7,200,000 7,187,994 51,880.53 7.810% 120 117
Apartments
34 Spectrum Retail 7,100,000 7,091,921 51,850.02 7.950% 120 118
Center
36 Lamplighter - Chino 7,000,000 6,995,463 52,195.50 8.170% 60 59
37 Park 80 East Office 6,825,000 6,817,130 49,604.47 7.900% 120 118
Building
39 Gold Ridge 6,600,000 6,493,812 45,934.12 6.830% 300 287
Apartments
41 Moulton La Paz 6,400,000 6,385,636 47,094.85 8.030% 120 116
Shopping Center
43 Landmark Hotel 6,000,000 5,954,361 60,286.24 8.840% 120 117
44 Legg Mason Center 5,918,000 5,909,473 44,668.15 8.300% 120 117
47 Lakeside Village 5,387,000 5,381,427 40,660.24 8.300% 120 118
Shopping Center
49 Richmond Tower 5,119,000 5,116,061 40,307.76 8.760% 84 83
52 West Main Place 4,900,000 4,892,918 36,949.94 8.290% 120 117
53 Oxon Run Manor 4,880,000 4,826,748 32,204.99 6.920% 144 130
Apartments
56 Heritage Hills 4,614,000 4,606,438 33,438.69 7.870% 120 117
Retail Center
59 Lehigh Street 4,340,000 4,337,022 31,513.21 7.890% 120 119
Shopping Center
62 Parkside Center 4,245,000 4,240,473 31,712.39 8.190% 120 118
63 Park 51 Medical 4,000,000 3,997,300 29,266.97 7.970% 120 119
Building
64 Quality Suites - 3,994,000 3,990,280 32,809.29 8.740% 120 119
College Station
65 King Arthur Mobile 3,959,000 3,956,496 29,854.05 8.290% 120 119
Home Park
68 Stockdale Town 3,791,000 3,788,617 28,667.29 8.320% 120 119
Center
<CAPTION>
Original Remaining
# Loan/Property Maturity Date Amortization Amortization ARD Date Prepayment
Name Provision
=============================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
1 45 Broadway 9/1/2029 360 359 9/1/2009 L (9.75), O (0.25)
2 Radisson South - 8/1/2024 300 298 8/1/2009 L (9.5), O (0.5)
Bloomington (1A)
3 Le Meridien - 8/1/2024 300 298 8/1/2009 L (9.5), O (0.5)
Dallas (1A)
5 Westin Resort - 8/1/2027 336 334 8/1/2009 L (9.75). O (0.25)
Hilton Head Island
6 Southshore Beach & 7/1/2009 360 357 L (9.75), O (0.25)
Tennis Club
8 Yonkers Shopping 10/1/2023 300 288 10/1/2008 L (9.75), O (0.25)
Center
9 The Atrium 8/1/2009 360 358 L (9.75), O (0.25)
15 Rancho Verde 9/1/2009 360 359 L (9.75), O (0.25)
Mobile Home Park
16 Commerce Centre 7/1/2009 360 357 L (9.67), O (0.33)
20 The 700 Building 8/1/2009 360 358 L (9.75), O (0.25)
22 BJ's Wholesale 8/1/2009 360 358 L (9.67), O (0.33)
Club
24 The Regency 9/1/2028 360 347 9/1/2018 L (19.75), O (0.25)
Apartments
27 Commons on 6/1/2009 360 356 L (9.67), O (0.33)
Apache
28 Olympic Corporate 8/1/2009 360 358 L (9.75), O (0.25)
Center Building
29 Chaparral Village 6/1/2009 360 356 L (9.75), O (0.25)
33 Oxford Square 7/1/2009 360 357 L (9.75), O (0.25)
Apartments
34 Spectrum Retail 8/1/2009 360 358 L (9.75), O (0.25)
Center
36 Lamplighter - Chino 9/1/2004 360 359 L (4.75), O (0.25)
37 Park 80 East Office 8/1/2009 360 358 L (9.75), O (0.25)
Building
39 Gold Ridge 9/1/2023 300 287 L (24.75), O (0.25)
Apartments
41 Moulton La Paz 6/1/2009 360 356 L (9.75), O (0.25)
Shopping Center
43 Landmark Hotel 7/1/2009 180 177 L (9.75), O (0.25)
44 Legg Mason Center 7/1/2009 360 357 L (9.67), O (0.33)
47 Lakeside Village 8/1/2009 360 358 L (9.67), O (0.33)
Shopping Center
49 Richmond Tower 9/1/2006 360 359 L (5), O (2)
52 West Main Place 7/1/2009 360 357 L (9.75), O (0.25)
53 Oxon Run Manor 8/1/2028 360 346 8/1/2010 L (11.75), O (0.25)
Apartments
56 Heritage Hills 7/1/2009 360 357 L (9.75), O (0.25)
Retail Center
59 Lehigh Street 9/1/2009 360 359 L (9.75), O (0.25)
Shopping Center
62 Parkside Center 8/1/2009 360 358 L (9.75), O (0.25)
63 Park 51 Medical 9/1/2009 360 359 L (9.75), O (0.25)
Building
64 Quality Suites - 9/1/2009 300 299 L (9.75), O (0.25)
College Station
65 King Arthur Mobile 9/1/2009 360 359 L (9.5), O (0.5)
Home Park
68 Stockdale Town 9/1/2009 360 359 L (9.75), O (0.25)
Center
<CAPTION>
# Loan/Property Defeasance Fee/Leasehol Interest Calculation
Name (Yes/No) d
==============================================================================
<S> <C> <C> <C> <C>
1 45 Broadway Yes Fee Actual/360
2 Radisson South - Yes Fee/Leasehold 30/360
Bloomington (1A)
3 Le Meridien - Yes Fee 30/360
Dallas (1A)
5 Westin Resort - Yes Fee Actual/360
Hilton Head Island
6 Southshore Beach & Yes Fee Actual/360
Tennis Club
8 Yonkers Shopping Yes Fee/Leasehold Actual/360
Center
9 The Atrium Yes Fee Actual/360
15 Rancho Verde Yes Fee/Leasehold Actual/360
Mobile Home Park
16 Commerce Centre Yes Fee Actual/360
20 The 700 Building Yes Fee Actual/360
22 BJ's Wholesale Yes Fee Actual/360
Club
24 The Regency Yes Fee Actual/360
Apartments
27 Commons on Yes Fee Actual/360
Apache
28 Olympic Corporate Yes Fee Actual/360
Center Building
29 Chaparral Village Yes Fee Actual/360
33 Oxford Square Yes Fee Actual/360
Apartments
34 Spectrum Retail Yes Fee Actual/360
Center
36 Lamplighter - Chino Yes Fee Actual/360
37 Park 80 East Office Yes Leasehold Actual/360
Building
39 Gold Ridge Yes Fee Actual/360
Apartments
41 Moulton La Paz Yes Fee Actual/360
Shopping Center
43 Landmark Hotel Yes Fee Actual/360
44 Legg Mason Center Yes Fee/Leasehold Actual/360
47 Lakeside Village Yes Fee Actual/360
Shopping Center
49 Richmond Tower Yes Fee Actual/360
52 West Main Place Yes Fee Actual/360
53 Oxon Run Manor Yes Fee Actual/360
Apartments
56 Heritage Hills Yes Fee Actual/360
Retail Center
59 Lehigh Street Yes Fee Actual/360
Shopping Center
62 Parkside Center Yes Fee Actual/360
63 Park 51 Medical Yes Fee Actual/360
Building
64 Quality Suites - Yes Fee Actual/360
College Station
65 King Arthur Mobile Yes Fee Actual/360
Home Park
68 Stockdale Town Yes Fee Actual/360
Center
</TABLE>
<PAGE>
DLJCMC 1999-CG3
<TABLE>
<CAPTION>
# Loan/Property Street Adress City County State Zip Code Originator
Name
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
70 Town Center North 1801, 1851, 1889 and 1899 Signal Hill Los CA 90806 GECA
Willow Street Angeles
76 1264 Lexington 1264 Lexington Avenue New York New York NY 10028 GECA
Avenue
78 Storage USA - La 46-600 Adams Street La Quinta Riverside CA 92253 GECA
Quinta
79 Storage Loan GECA
79a Action Self Storage 5000 Justin Road Lewisville Denton TX 75077
- Lewisville
79b Good Self Storage 1624 Morgan Boulevard Harlingen Cameron TX 78550
79c Action Self Storage 7007 South Lake Houston Parkway Houston Harris TX 77049
- Houston
80 Lincolnwood / 2219 South 9th Street Charleston Coles IL 61920 GECA
Pinetree Apartments
81 Brookside Mobile 8155 South 1700 West West Jordan Salt Lake UT 84088 GECA
Home Park
89 West Valley Place 5300-5324 Doniphan Drive El Paso El Paso TX 79932 GECA
Shopping Center
92 Rite Aid - San 1605 South San Jacinto Avenue San Jacinto Riverside CA 92583 GECA
Jacinto
93 Federal Point 1000 North Lake Park Boulevard Carolina Beach New NC 28428 GECA
Station Hanover
96 Harbour Village 13245 Atlantic Boulevard Jacksonville Duval FL 32225 GECA
98 Village Center 1939, 1945 and 1957 West Dunlap Phoenix Maricopa AZ 85021 GECA
99 Sherwood Park 6302 Robin Hood Lane Huntsville Madison AL 35806 GECA
Apartments
100 Blockbuster Video 14936 Ventura Boulevard Sherman Oaks Los CA 91403 GECA
and Radio Shack Angeles
108 Niki's Point 6515-6535 West 24th Avenue Hialeah Miami- FL 33016 GECA
Apartments Dade
109 Belle Terre Village 1620 Marseille Drive/8875-8893 LaPlace St. John LA 70068 GECA
Apartments/Belle Richmond Drive the Baptist
Pointe Apartments
111 Palm Valley 319 North Litchfield Road Goodyear Maricopa AZ 85338 GECA
Crossing
112 Moon Glow 736 Moon Road Columbus Franklin OH 43224 GECA
Apartments
113 Manor Court 13890 NE 3rd Court North Miami Dade FL 33181 GECA
Apartments
114 Wickham Corners 1050-1070 Wickham Road Melbourne Brevard FL 32935 GECA
Shopping Center
125 Kress Energy 224 East Douglas Avenue Wichita Sedgwick KS 67202 GECA
Center Office
Building
126 11401 Industriplex 11401 Industriplex Boulevard Baton Rouge East LA 70809 GECA
Warehouse Baton
Rouge
<CAPTION>
Original Remaining
# Loan/Property Original Cut-off Monthly Mortgage Rate Term Term
Name Loan Balance Payment
Balance
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
70 Town Center North 3,755,000 3,752,610 28,236.46 8.260% 120 119
76 1264 Lexington 3,652,000 3,649,623 27,179.94 8.150% 120 119
Avenue
78 Storage USA - La 3,440,000 3,431,045 27,053.76 8.220% 120 117
Quinta
79 Storage Loan 3,400,000 3,388,112 27,194.67 8.420% 120 116
79a Action Self Storage
- Lewisville
79b Good Self Storage
79c Action Self Storage
- Houston
80 Lincolnwood / 3,312,000 3,308,779 25,513.37 8.520% 120 118
Pinetree Apartments
81 Brookside Mobile 3,292,000 3,288,373 24,316.37 8.070% 120 118
Home Park
89 West Valley Place 2,732,000 2,728,112 20,697.72 8.340% 120 117
Shopping Center
92 Rite Aid - San 2,682,000 2,680,208 19,716.97 8.020% 120 119
Jacinto
93 Federal Point 2,599,000 2,595,381 19,818.52 8.410% 120 117
Station
96 Harbour Village 2,200,000 2,198,518 16,112.16 7.980% 120 119
98 Village Center 2,107,625 2,109,000 15,681.42 8.140% 120 119
99 Sherwood Park 2,025,000 2,020,069 14,465.39 7.720% 120 116
Apartments
100 Blockbuster Video 2,003,000 2,000,051 15,019.72 8.230% 120 117
and Radio Shack
108 Niki's Point 1,860,000 1,857,169 13,803.94 8.120% 120 117
Apartments
109 Belle Terre Village 1,830,000 1,825,497 13,021.93 7.680% 120 116
Apartments/Belle
Pointe Apartments
111 Palm Valley 1,800,000 1,797,891 13,007.55 7.840% 120 118
Crossing
112 Moon Glow 1,800,000 1,772,211 12,802.52 7.070% 180 167
Apartments
113 Manor Court 1,800,000 1,771,046 12,987.34 7.230% 300 286
Apartments
114 Wickham Corners 1,741,000 1,739,092 12,884.24 8.090% 120 118
Shopping Center
125 Kress Energy 1,451,000 1,446,211 10,778.71 8.130% 120 114
Center Office
Building
126 11401 Industriplex 1,400,000 1,397,952 10,517.73 8.250% 120 117
Warehouse
<CAPTION>
Original Remaining
# Loan/Property Maturity Date Amortization Amortization ARD Date Prepayment
Name Provision
=========================================================================================================================
<S> <C> <C> <C> <C> <C>
70 Town Center North 9/1/2009 360 359 L (9.75), O (0.25)
76 1264 Lexington 9/1/2009 360 359 L (9.75), O (0.25)
Avenue
78 Storage USA - La 7/1/2009 300 297 L (9.75), O (0.25)
Quinta
79 Storage Loan 6/1/2009 300 296 L (9.75), O (0.25)
79a Action Self Storage
- Lewisville
79b Good Self Storage
79c Action Self Storage
- Houston
80 Lincolnwood / 8/1/2009 360 358 L (9.75), O (0.25)
Pinetree Apartments
81 Brookside Mobile 8/1/2009 360 358 L (9.75), O (0.25)
Home Park
89 West Valley Place 7/1/2009 360 357 L (9.75), O (0.25)
Shopping Center
92 Rite Aid - San 9/1/2009 360 359 L (9.75), O (0.25)
Jacinto
93 Federal Point 7/1/2009 360 357 L (9.75), O (0.25)
Station
96 Harbour Village 9/1/2009 360 359 L (9.75), O (0.25)
98 Village Center 9/1/2009 360 359 L (9.75), O (0.25)
99 Sherwood Park 6/1/2009 360 356 L (9.75), O (0.25)
Apartments
100 Blockbuster Video 7/1/2009 360 357 L (9.58), O (0.42)
and Radio Shack
108 Niki's Point 7/1/2009 360 357 L (9.75), O (0.25)
Apartments
109 Belle Terre Village 6/1/2009 360 356 L (9.75), O (0.25)
Apartments/Belle
Pointe Apartments
111 Palm Valley 8/1/2009 360 358 L (9.75), O (0.25)
Crossing
112 Moon Glow 9/1/2023 300 287 9/1/2013 L (14.75), O (0.25)
Apartments
113 Manor Court 8/1/2023 300 286 L (15), YM 1%
Apartments (9.75), O (0.25)
114 Wickham Corners 8/1/2009 360 358 L (9.75), O (0.25)
Shopping Center
125 Kress Energy 4/1/2009 360 354 L (9.75), O (0.25)
Center Office
Building
126 11401 Industriplex 7/1/2009 360 357 L (9.75), O (0.25)
Warehouse
<CAPTION>
# Loan/Property Defeasance Fee/Leasehol Interest Calculation
Name (Yes/No) d
===============================================================================
<S> <C> <C> <C> <C>
70 Town Center North Yes Fee Actual/360
76 1264 Lexington Yes Fee Actual/360
Avenue
78 Storage USA - La Yes Fee Actual/360
Quinta
79 Storage Loan Yes Fee Actual/360
79a Action Self Storage
- Lewisville
79b Good Self Storage
79c Action Self Storage
- Houston
80 Lincolnwood / Yes Fee Actual/360
Pinetree Apartments
81 Brookside Mobile Yes Fee Actual/360
Home Park
89 West Valley Place Yes Fee Actual/360
Shopping Center
92 Rite Aid - San Yes Fee Actual/360
Jacinto
93 Federal Point Yes Fee Actual/360
Station
96 Harbour Village Yes Fee Actual/360
98 Village Center Yes Fee Actual/360
99 Sherwood Park Yes Fee Actual/360
Apartments
100 Blockbuster Video Yes Fee Actual/360
and Radio Shack
108 Niki's Point Yes Fee Actual/360
Apartments
109 Belle Terre Village Yes Fee Actual/360
Apartments/Belle
Pointe Apartments
111 Palm Valley Yes Fee Actual/360
Crossing
112 Moon Glow Yes Fee Actual/360
Apartments
113 Manor Court No Fee Actual/360
Apartments
114 Wickham Corners Yes Fee Actual/360
Shopping Center
125 Kress Energy Yes Fee Actual/360
Center Office
Building
126 11401 Industriplex Yes Fee Actual/360
Warehouse
</TABLE>
(1A) The Mortgage Loans secured by Radisson South - Bloomington and Le Meridien
- Dallas, respectively, are cross-collateralized and cross-defaulted.
(1B) The Mortgage Loans secured by Creekside Apartments, Brookside Apartments,
Glenbrook Centre Apartments and Hardwick Apartments, respectively, are
cross-collateralized and cross-defaulted.
(1C) The Mortgage Loans secured by East 29th Street Apartments and Chesapeake
Drive Apartments, respectively, are cross-collateralized and
cross-defaulted.
(1D) The Mortgage Loans secured by 1416 Apartments and 1419 Apartments,
respectively, are cross-collateralized and cross-defaulted.
(1E) The Mortgage Loans secured by 244-256 Orange Place and 249 Orange Place
Apartments, respectively, are cross-collateralized and cross-defaulted.
<PAGE>
EXHIBIT N
FORM OF UNION CAPITAL AGREEMENT
M-2-1
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of October 5, 1999
(this "Seller's Warranty Certificate"), is executed and delivered by Union
Capital Investments, LLC (the "Seller"), in favor of Column Financial, Inc.
("Column"), its successors and assigns.
PRELIMINARY STATEMENT
The Seller and Column are parties to a Master Mortgage Loan Purchase
Agreement dated as of February 1, 1999 (the "Master Purchase Agreement"). The
mortgage loan or, if more than one, the mortgage loans (in either case, the
"Mortgage Loans") identified on the Mortgage Loan Schedule attached as Schedule
1 hereto have been previously sold by the Seller to Column pursuant to the
Master Purchase Agreement. Column intends to transfer the Mortgage Loans to DLJ
Commercial Mortgage Corp. (the "Depositor") pursuant to a Mortgage Loan Purchase
and Sale Agreement (the "Column Depositor Agreement"); and the Depositor in turn
intends to deposit the Mortgage Loans into a trust fund to be evidenced by the
Depositor's Commercial Mortgage Pass-Through Certificates, Series 1999-CG3 (the
"Certificates"). The Certificates will be issued on or about October 12, 1999
(the actual date of issuance, the "Closing Date") pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), to be dated on or
about October 1, 1999, among the Depositor, GE Capital Loan Services, Inc., as
master servicer (the "Master Servicer"), GMAC Commercial Mortgage Corporation,
as special servicer (the "Special Servicer"), and Norwest Bank Minnesota,
National Association, as trustee (in such capacity, the "Trustee"). The Seller
agreed in the Master Purchase Agreement to make certain representations and
warranties, repurchase certain Mortgage Loans and provide certain
indemnification in connection with any sale of the Mortgage Loans to a trust
fund to be formed as part of a mortgage pass-through transaction, and such
agreement was partial consideration for the execution and performance of the
Master Purchase Agreement by Column. Capitalized terms used but not defined
herein shall have the respective meanings assigned to such terms in the Master
Purchase Agreement or, if not defined in the Master Purchase Agreement, shall
have the respective meanings assigned to such terms in the Pooling and Servicing
Agreement.
Pursuant to the terms of the Column - Depositor Agreement, Column shall
assign to the Depositor, among other things, all of Column's right, title and
interest in and to the Mortgage Loans and under this Seller's Warranty
Certificate (except under Section 4 hereof); and pursuant to the Pooling and
Servicing Agreement, the Depositor shall assign to the Trustee, for the benefit
of the holders of the Certificates (the "Certificateholders"), among other
things, all of the Depositor's right, title and interest in and to the Mortgage
Loans and, to the extent assigned to it under the Column - Depositor Agreement,
under this Seller's Warranty Certificate.
SECTION 1. Delivery of Mortgage Files. The Seller agrees that it
shall deliver to the Trustee as assignee of the Depositor (or, if so directed by
Column, to a custodian appointed by the Trustee (a "Custodian")), under the
Pooling and Servicing Agreement, all of the documents required in the Mortgage
Files, at the times and in the manner otherwise required by the Pooling and
Servicing Agreement, in each case to the extent the Seller has not delivered
such documents to Column prior to the date hereof.
SECTION 2. Representations and Warranties of the Seller. Pursuant to
Section 7.01 of the Master Purchase Agreement, the Seller hereby represents and
warrants as of the Closing Date to and for the benefit of Column, the Depositor,
their affiliates, the Trustee and the Certificateholders that (a) each of the
representations and warranties set forth in Sections 4.01 and 4.02 of the Master
Purchase Agreement is true and correct as if stated and made on the Closing Date
and (b) each
-2-
<PAGE>
Mortgage Loan bears interest at a rate that remains fixed throughout the term of
such Mortgage Loan. The Seller agrees that it shall be deemed to make as of the
date of substitution with respect to any Replacement Mortgage Loan (as defined
in the Pooling and Servicing Agreement) that is substituted by the Seller for a
Mortgage Loan in the manner set forth in Section 3 hereof, to and for the
benefit of Column, the Depositor, their affiliates, the Trustee and the
Certificateholders, each of the representations and warranties set forth in
Sections 4.01 and 4.02 of the Master Purchase Agreement as if stated and made on
the date of substitution, with any conforming changes necessary due to the fact
that such Replacement Mortgage Loan was not purchased pursuant to the Master
Purchase Agreement.
SECTION 3. Cure, Repurchase, Substitution and Indemnity Obligations
of the Seller. Each of the representations and warranties made pursuant to
Section 2 shall survive the transfer of the Mortgage Loans by Column to the
Depositor and by the Depositor to the Trustee, for the benefit of the
Certificateholders, and shall inure to the benefit of Column and its successors
and assigns (the holder(s) of any Mortgage Loan or related REO Property,
including, without limitation, the Trustee for the benefit of the
Certificateholders, being herein referred to as the "Owner" thereof),
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
assignment of Mortgage or Column's, the Depositor's or the Trustee's examination
of any Mortgage File. Upon discovery by either the Seller or the related Owner
of a breach of any of the representations and warranties made pursuant to
Section 2 that materially and adversely affects the value of any Mortgage Loan
or related REO Property or the interest of the related Owner therein (any such
breach, a "Material Breach"), the party discovering such breach shall give
prompt written notice to the other.
Within sixty (60) days of the earlier of either discovery by or
notice to the Seller of any Material Breach (other than a Material Breach
involving any representation or warranty made pursuant to Section 2 hereof that
is set forth in Section 4.01 of the Master Purchase Agreement), the Seller shall
use its best efforts to cure such Material Breach in all material respects and,
if such Material Breach cannot be cured within such 60-day period, the Seller
shall repurchase the affected Mortgage Loan or REO Property at the Purchase
Price (as defined in the Pooling and Servicing Agreement); provided, however,
that if the Seller's obligation to repurchase such affected Mortgage Loan or REO
Property as described above arises within the three-month period commencing on
the Closing Date (or within the two-year period commencing on the Closing Date,
if the affected Mortgage Loan or REO Property is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the affected Mortgage Loan or REO Property is then
subject to the Pooling and Servicing Agreement and is not a Mortgage Loan that
(or an REO Property related to a Mortgage Loan that) had been substituted for
another Mortgage Loan in the manner described hereinbelow, the Seller may, at
its option, in lieu of repurchasing such affected Mortgage Loan (but in any
event no later than such repurchase would have been required to be completed),
(a) replace such affected Mortgage Loan or REO Property with one or more
Qualifying Substitute Mortgage Loans (as defined in the Pooling and Servicing
Agreement) that are approved by Column and pay any corresponding Substitution
Shortfall Amount (as defined in the Pooling and Servicing Agreement), such
substitution and payment to be effected in accordance with the terms of the
Pooling and Servicing Agreement, and (b) deliver a certification to the Trustee
to the effect that such substitute mortgage loan satisfies or such substitute
mortgage loans satisfy, as the case may be, all of the requirements of the
definition of "Qualifying Substitute Mortgage Loan" in the Pooling and Servicing
Agreement. The Seller may request that the related Owner extend the 60-day
period referenced above within which the Seller must cure, repurchase or replace
a Mortgage Loan or REO Property affected by such a Material Breach, to ninety
(90) or more days (but not more than one hundred fifty (150) days) following the
earlier of either discovery by or notice to the Seller of such Material Breach,
by delivering a written request to the related Owner, together with evidence
that the Seller is diligently proceeding to cure such breach and will require
the requested extension to effect such cure; provided, however, that the related
Owner may determine to accept or deny any such request in its sole discretion,
without limitation. For purposes of this section, no such request shall be
deemed to have been accepted by the related Owner unless the related Owner has
affirmatively and expressly stated in writing its acceptance of such request. If
a Material Breach involves any representation or warranty made pursuant to
Section 2 hereof that is set forth in Section 4.01 of the Master
-3-
<PAGE>
Purchase Agreement and such Material Breach cannot be cured within ninety (90)
days of the earlier of either discovery by or notice to the Seller of such
Material Breach, any or all of the Mortgage Loans and related REO Properties
shall, at the option of the related Owner, be repurchased by the Seller at the
Purchase Price (with no option to substitute). Any repurchase of Mortgage Loans
or REO Properties or payment of any Substitution Shortfall Amount pursuant to
the foregoing provisions of this Section 3 shall be accomplished by wire
transfer of immediately available funds in the amount of the Purchase Price or
Substitution Shortfall Amount, as applicable, pursuant to wiring instructions
furnished by the related Owner to the Seller.
At the time of the repurchase of or substitution for any Mortgage
Loan or REO Property as contemplated by the preceding paragraph, the related
Owner and Seller shall arrange for the reassignment of such Mortgage Loan or the
conveyance of such REO Property, as the case may be, to the Seller and the
delivery to the Seller of any documents held by or on behalf of the related
Owner relating to such Mortgage Loan or REO Property, as the case may be. With
respect to each Mortgage Loan and REO Property to be repurchased or replaced as
contemplated by the preceding paragraph, at the time the Purchase Price or
Substitution Shortfall Amount, as applicable, is wire transferred to or at the
direction of the related Owner, the Seller shall, simultaneously with the
initiation of such wire transfer, give written notice to the related Owner that
such wire transfer has been initiated.
In addition to such cure and repurchase or substitution obligation,
the Seller shall indemnify the related Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses incurred in
connection with any claim, demand, defense, or assertion based on or grounded
upon, or resulting from, a breach by the Seller of the representations and
warranties made pursuant to Section 2 hereof. The obligations of the Seller set
forth in this Section 3 to cure or to repurchase or replace a defective Mortgage
Loan or REO Property and to indemnify the related Owner as provided in this
Section 3 constitute the sole remedies of the related Owner respecting a breach
of such representations and warranties made pursuant to Section 2 hereof.
SECTION 4. Indemnification. The Seller will indemnify and hold
harmless, Column, its affiliates, and each Person, if any, who controls Column
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"; and all of the foregoing Persons, collectively, the "DLJ Parties"),
against any losses, claims, damages or liabilities to which they may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (each, a "Liability")
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact provided by the Seller to any DLJ Party ("Seller
Information") which is contained in the prospectus, private placement memorandum
and/or other disclosure document or any amendment or supplement thereto (each,
an "Offering Document") relating to the offering of any securities evidencing
ownership interests in the Mortgage Loans or which arise out of or are based
upon any omission or alleged omission to state in such Offering Document a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and will reimburse each DLJ Party for any legal or other expenses
reasonably incurred by such DLJ Party in connection with investigating or
defending any such Liability; provided, however, that the Seller shall not be
liable in any such case to the extent and only to the extent that any Liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in an Offering Document in reliance upon
and in conformity with information provided by or on behalf of any Person other
than the Seller. Column hereby agrees to indemnify the Seller for any Liability
arising out of or based upon Seller Information which is not accurately
reflected in any Offering Document.
(a) Promptly after receipt by a party with a right to
indemnification under this section (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party will, if a claim in respect
thereof is to be made against a party with an indemnification obligation under
this section (the "Indemnifying Party"), notify the Indemnifying Party
-4-
<PAGE>
of the commencement thereof; but the omission so to notify the Indemnifying
Party will not relieve the Indemnifying Party from any liability which it may
have to any Indemnified Party otherwise than under this section. In case any
such action is brought against an Indemnified Party, and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, to assume the defense thereof, with counsel
satisfactory to such Indemnified Party; provided, however, that, if the
defendants in any such action include both the Indemnified Party and the
Indemnifying Party, and if the Indemnified Party shall have reasonably
considered that there may be legal defenses available to it and/or other
Indemnified Parties which are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or Parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
Parties. Upon receipt of notice by such Indemnified Party of the Indemnifying
Party's election to so assume the defense of such action and approval by such
Indemnified Party of counsel, the Indemnifying Party will not be liable to such
Indemnified Party under this section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof unless (i) the Indemnified Party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the Indemnifying
Party shall not be liable for the expenses of more than one separate counsel),
(ii) the Indemnifying Party shall not have employed counsel satisfactory to the
Indemnified Party within a reasonable period after notice of commencement of the
action or (iii) the Indemnifying Party has authorized the employment of counsel
for the Indemnified Party at the expense of the Indemnifying Party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in clause (i) or (iii).
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection (a) of
this Section 4 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Seller on the one hand, and Column on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Seller and Column in such proportions that Column is responsible for its pro
rata portion of such losses, liabilities, claims, damages and expenses
determined in accordance with the ratio that the (i) difference between the
aggregate purchase price paid to the Seller by Column for the Mortgage Loans and
the aggregate resale price received by Column, bears to (ii) the aggregate
resale price received by Column, and the Seller shall be responsible for the
balance; provided, however, that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this section, each of the other
DLJ Parties shall have the same rights to contribution as Column.
SECTION 5. Assignment of this Seller's Warranty Certificate. The
rights and obligations of the Seller under this Seller's Warranty Certificate
may not be assigned, pledged or hypothecated by the Seller without the consent
of Column and its successors and assigns; except that any Person into which the
Seller may be merged or consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Seller shall be a party, or any Person
succeeding to the business of the Seller, shall be the successor of the Seller
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding. The rights and obligations of Column under this Seller's
Warranty Certificate may, however, be assigned in whole or in part by Column and
its successors and assigns in connection with any transfer of one or more
Mortgage Loans. Without limiting the generality of the foregoing, the Seller
hereby acknowledges and approves the assignments contemplated in the Preliminary
Statement hereto.
SECTION 6. Seller's Warranty Certificate Supersedes Contrary
Provisions in Master Purchase Agreement. This Seller's Warranty Certificate
supersedes any contrary provisions of the Master Purchase Agreement, and
constitutes
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<PAGE>
an amendment of such contrary provisions, insofar as (but only insofar as) such
contrary provisions of the Master Purchase Agreement relate to the Mortgage
Loans. The rights and obligations of the Seller and Column under the Master
Purchase Agreement are otherwise unaffected, and the provisions of the Master
Purchase Agreement otherwise remain in full force and effect.
SECTION 7. Description of the Seller. In connection with the
offering of the Certificates pursuant to the Offering Documents, the Seller
authorizes the inclusion in the Offering Documents of the description of the
Seller, attached as Exhibit A hereto, and hereby represents and warrants that
such description does not contain any material misstatements of fact.
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<PAGE>
IN WITNESS WHEREOF, the Seller has caused its name to be signed by
its duly authorized officer as of the date first above written.
UNION CAPITAL INVESTMENTS, LLC
By: ____________________________________
Name:
Title:
Acknowledged and Accepted:
COLUMN FINANCIAL, INC.
By: __________________________________
Name:
Title:
<PAGE>
EXHIBIT A
Union Capital Investments LLC. Union Capital Investments LLC ("Union
Capital") is a limited liability company, with its principal office in Atlanta,
Georgia. Union Capital is primarily involved in conduit lending, and it
originates, underwrites and closes first mortgage loans secured by all types of
multifamily rental and commercial real estate throughout the United States. The
principals of Union Capital have been involved in the conduit lending field
since January 1993.
<PAGE>
SCHEDULE I
Mortgage Loan Schedule
Mortgage Loan Cut-Off
Number Property Name Date Balance
------ ------------- ------------
31 The Hill at Woodway $7,322,860
50 The Palm Breezes Club Manufactured $5,091,471
Home Community
57 Waters of Winrock Apartments $4,468,603
105 Riverlawn Mobile Home Park $1,917,042
106 Lakeside Mobile Estates $1,898,779
144 Blue Gem Mobile Home Park $998,838
<PAGE>
EXHIBIT O
SCHEDULE OF DESIGNATED ARD LOANS
Property Name Balance Maturity Date ARD Date
- ------------- ------- ------------- --------
45 Broadway $48,969,762 9/1/2029 9/1/2009
Radisson South--Bloomington $30,237,096 8/1/2024 8/1/2009
Le Meridien--Dallas $16,166,368 8/1/2024 8/1/2009
Westin Resort--Hilton Head Island $34,953,502 8/1/2027 8/1/2009
Yonkers Shopping Center $29,561,900 10/1/2023 10/1/2008
The Regency Apartments $8,650,061 9/1/2028 9/1/2018
Oxon Run Manor Apartments $4,826,748 8/1/2028 8/1/2010
Moon Glow Apartments $1,772,211 9/1/2023 9/1/2013
O-1
<PAGE>
EXHIBIT P
SCHEDULE OF DESIGNATED SUB-SERVICERS
Cut-off Date Designated
Property Name Balance Sub-Servicer
- ------------- ------- ------------
West End Court $15,289,713 GMAC Commercial Mortgage
Corporation
Rolling Meadows Plaza $ 7,794,903 MidNorth Financial
The Fox Glen I and II Apartments $ 3,897,588 GMAC Commercial Mortgage
Corporation
West Main Place L. J. Melody
Park 80 East Office Building $6,817,130 L. J. Melody
Stockdale Town Center $3,788,617 L. J. Melody
Federal Point Station L. J. Melody
Park 51 Medical Building $3,997,300 Laureate Capital Park
Village Center $2,107,625 L. J. Melody
Niki's Point Apartments $1,857,169 Holliday Fenoglio
P-1
<PAGE>
EXECUTION COPY
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
UNDERWRITING AGREEMENT
October 5, 1999
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, NY 10172
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to sell
to the underwriters named in Schedule I hereto (the "Underwriters"; provided,
however, that if you are the only underwriter named in Schedule I hereto, then
the terms "Underwriter" and "Underwriters" shall refer solely to you), for which
you are acting as representative (in such capacity, the "Representative"), those
classes (each, a "Class") of the Company's Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, specified in Schedule II hereto (the "Offered
Certificates"). The Offered Certificates, together with the other commercial
mortgage pass-through certificates of the same series (the "Private
Certificates"; and, collectively with the Offered Certificates, the
"Certificates"), will be issued pursuant to a Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") to be dated as of October 1, 1999 (the
"Cut-off Date"), among the Company, as depositor, GE Capital Loan Services,
Inc., as master servicer (the "Master Servicer"), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). The Certificates
will evidence the entire beneficial ownership of a trust fund (the "Trust Fund")
to be established by the Company pursuant to the Pooling and Servicing
Agreement. The Trust Fund will consist primarily of a pool (the "Mortgage Pool")
of conventional, monthly pay, commercial and multifamily mortgage loans (the
"Mortgage Loans") transferred by the Company to the Trust Fund and listed in an
attachment to the Pooling and Servicing Agreement. Multiple real estate mortgage
investment conduit ("REMIC") elections are to be made with respect to the Trust
Fund with the resulting REMICs being referred to as "REMIC I", "REMIC II",
"REMIC III" and the "Loan REMICs", respectively. The Company acquired certain of
the Mortgage Loans from Column Financial, Inc. ("Column") and the remaining
Mortgage Loans from GE Capital Access, Inc. ("GECA"; and collectively with
Column, the "Mortgage Loan Sellers"), in each case pursuant to a Mortgage Loan
Purchase and Sale Agreement (each, a "Mortgage Loan Purchase and Sale
Agreement") dated as of the date hereof, between the Company and the particular
Mortgage Loan Seller. The Offered Certificates and the Mortgage Loans are
described more fully in the Basic Prospectus and the Prospectus Supplement (each
of which terms is defined below) which the
<PAGE>
Company is furnishing to the Underwriters. Capitalized terms used but not
otherwise defined herein will have the respective meanings assigned thereto in
the Prospectus Supplement.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-82275) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of the offer and sale of the Offered Certificates, which registration
statement has become effective and copies of which have heretofore been
delivered to the Representative. Such registration statement meets the
requirements set forth in Rule 415(a)(1) under the Act and complies in all other
material respects with such Rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement, dated the date
specified in Schedule II hereto, to the prospectus, dated the date specified in
Schedule II hereto, relating to the Offered Certificates and the method of
distribution thereof and has previously advised you of all further information
(financial and other) with respect to the Offered Certificates set forth
therein. Such registration statement, including the exhibits thereto, as amended
at the date hereof is hereinafter called the "Registration Statement"; such
prospectus, in the form in which it will be filed with the Commission pursuant
to Rule 424 under the Act, is hereinafter called the "Basic Prospectus"; such
supplement to the Basic Prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424 under the Act, is hereinafter called the
"Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement
together are hereinafter called the "Prospectus". Any preliminary form of the
Prospectus Supplement which has heretofore been filed pursuant to Rule 402(a) or
Rule 424 under the Act is hereinafter called a "Preliminary Prospectus
Supplement"; and any such Preliminary Prospectus Supplement and the form of
prospectus that accompanied it are hereinafter together called a "Preliminary
Prospectus". References herein to the Prospectus or Prospectus Supplement shall
exclude information incorporated therein by reference pursuant to a filing made
in accordance with Section 9 hereof, but shall include any ABS Term Sheet (as
defined in Section 9) actually included therein other than by incorporation by
reference (and regardless of whether such ABS Term Sheet is also incorporated
therein by reference). The Company, as depositor with respect to the Trust Fund,
will file with the Commission within 15 days of the issuance of the Offered
Certificates a report on Form 8-K setting forth specific information concerning
the Offered Certificates.
(b) As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to Rule 424
under the Act, when, prior to the Closing Date (as defined in Section 3), any
other amendment to the Registration Statement becomes effective, when, prior to
the Closing Date, any supplement to the Prospectus Supplement is filed with the
Commission, and at the Closing Date, (i) the Registration Statement, as amended
as of any such time, and the Prospectus, as amended or supplemented as of any
such time, complied or will comply in all material respects with the applicable
requirements of the Act and the rules thereunder, (ii) the Registration
Statement, as amended as of any such time, did not and will not contain any
untrue statement of a material fact and did not and will not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) the Prospectus, as amended or supplemented as
of any such time, did not and will not contain an untrue statement of a material
fact and did not and will not omit to state a material fact necessary in order
to make the
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<PAGE>
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Company makes no representations or
warranties as to (A) the information contained in or omitted from the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by any Underwriter, directly for use therein, (B) the information
contained in or omitted from the Prospectus, or any amendment thereof or
supplement thereto, in reliance upon and conformity with (1) the Master Tape (it
being acknowledged that the Master Tape was used to prepare the Prospectus
Supplement, including, without limitation, Exhibit A-1 and Exhibit A-2 to the
Prospectus Supplement and the accompanying diskette), (2) the representations
and warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement, or (3) any other information
concerning the characteristics of the Mortgage Loans, the related borrowers (the
"Borrowers") or the related mortgaged properties (the "Mortgaged Properties")
furnished to the Company or the Underwriters by any Mortgage Loan Seller, (C)
the information regarding the Mortgage Loans, the related Borrowers and the
related Mortgaged Properties contained in or omitted from the Prospectus
Supplement, or any amendment thereof or supplement thereto, under the headings
"Summary of the Prospectus Supplement--The Mortgage Loans and the Underlying
Real Properties", "Risk Factors" and "Description of the Mortgage Pool" or on
Exhibit A-1 or Exhibit A-2 thereto or on the accompanying diskette, or (D) the
information contained in or omitted from any Computational Materials (as defined
in Section 9 hereof) or ABS Term Sheets, or any amendment thereof or supplement
thereto, incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any amendment thereof or supplement
thereto) by reason of a filing made in accordance with Section 9. The "Master
Tape" consists of the compilation of underlying information and data regarding
the Mortgage Loans covered by the Independent Accountants Report on Applying
Agreed Upon Procedures dated October 5, 1999, as supplemented to the Closing
Date, and rendered by Arthur Andersen LLP.
(c) The Company is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full power
and authority (corporate and other) to own its properties and conduct its
business, as described in the Prospectus, and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement, and is
conducting its business so as to comply in all material respects with all
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting business.
(d) The Company is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the Prospectus or for
any additional information, regarding the Offered Certificates (ii) the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose or (iii) any notification with respect to the suspension of the
qualification of the Offered Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
-3-
<PAGE>
(e) At or prior to the Closing Date, the Company will have entered
into the Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Company, and the Pooling and Servicing
Agreement, when delivered by the Company, will have been duly authorized,
executed and delivered by the Company; and this Agreement constitutes, and the
Pooling and Servicing Agreement, when delivered by the Company, will constitute,
valid and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, liquidation, moratorium, receivership,
reorganization or similar laws affecting the rights of creditors generally, (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of any provisions of this Agreement or the Pooling and Servicing
Agreement which purport or are construed to provide indemnification from
securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in the
Prospectus; the issuance and sale of the Offered Certificates have been duly and
validly authorized by the Company, and such Certificates will, when duly and
validly executed and authenticated by the Trustee in accordance with the Pooling
and Servicing Agreement, be entitled to the benefits of the Pooling and
Servicing Agreement.
(g) Neither the sale of the Offered Certificates to the Underwriters
pursuant hereto, nor the consummation of any other of the transactions
contemplated herein, nor the fulfillment of any of the terms of the Pooling and
Servicing Agreement or this Agreement, will result in the breach of any term or
provision of the certificate of incorporation or by-laws of the Company or
conflict with, result in a material breach, violation or acceleration of or
constitute a default under, the terms of any indenture or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it is bound, or any statute, order or regulation applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries is a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects the ability of the
Company to perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(h) There are no actions or proceedings against, or investigations
of, the Company pending, or, to the knowledge of the Company, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement or the Offered
Certificates, (ii) seeking to prevent the issuance of the Offered Certificates
or the consummation of any of the transactions contemplated by this Agreement or
the Pooling and Servicing Agreement, (iii) which might materially and adversely
affect the performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement, the Pooling and Servicing Agreement or the
Offered Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Offered Certificates described in the Prospectus.
-4-
<PAGE>
(i) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Company since the
date of its latest audited financial statements which would have a material
adverse effect on the ability of the Company to perform its obligations under
the Pooling and Servicing Agreement.
(j) There are no contracts, indentures or other documents of a
character required by the Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and the
Pooling and Servicing Agreement, except such as have been, or as of the Closing
Date will have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and offer and
sale of the Offered Certificates by the Underwriters and any recordation of the
respective assignments of the Mortgage Loan documents to the Trustee pursuant to
the Pooling and Servicing Agreement, that have not been completed.
(l) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company.
(m) Any taxes, fees and other governmental charges payable by the
Company in connection with the execution and delivery of this Agreement and the
Pooling and Servicing Agreement or the issuance and sale of the Offered
Certificates (other than such federal, state and local taxes as may be payable
on the income or gain recognized therefrom) have been or will be paid at or
prior to the Closing Date.
(n) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance; provided that this representation and warranty is
made on the basis of the assumption that the Mortgage Loan Sellers delivered to
the Company good title to each Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance.
(o) The transfer of the Mortgage Loans to the Trustee and the sale
of the Certificates by the Company, at the Closing Date, will be treated by the
Company for financial accounting and reporting purposes as a sale of assets and
not as a pledge of assets to secure debt.
-5-
<PAGE>
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, the principal or notional amount of
each Class of the Offered Certificates set forth opposite each such
Underwriter's name in Schedule I hereto..
The purchase price for each Class of the Offered Certificates as a
percentage of the aggregate principal or notional amount thereof as of the
Closing Date is set forth in Schedule II hereto. There will be added to the
purchase price of the Offered Certificates interest in respect of each Class of
the Offered Certificates at the interest rate applicable to such Class from the
Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and sale of
the Offered Certificates contemplated hereby (the "Closing"), shall be made at
the date, location and time of delivery set forth in Schedule II hereto, or such
later date as shall be mutually acceptable to the Representative and the Company
(such date and time of purchase and sale of the Offered Certificates being
herein called the "Closing Date"). Delivery of the Offered Certificates will be
made in book-entry form through the facilities of The Depository Trust Company
("DTC"). Each Class of Offered Certificates will be represented by one or more
definitive global Certificates to be deposited by or on behalf of the Company
with DTC. Delivery of the Offered Certificates shall be made to the Underwriters
against payment by the Underwriters of the purchase price thereof to or upon the
order of the Company by wire transfer of immediately available funds or by such
other method as may be acceptable to the Company.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that each Underwriter
proposes to offer its allocable share of the Offered Certificates for sale to
the public as set forth in the Prospectus. It is further understood that the
Company in reliance upon Policy Statement 105, has not filed and will not file
an offering statement pursuant to Section 352-e of the General Business Law of
the State of New York with respect to the Offered Certificates. As required by
Policy Statement 105, each Underwriter therefore covenants and agrees with the
Company that sales of the Offered Certificates made by such Underwriter in the
State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.
5. Agreements. The Company agrees with each Underwriter that:
(a) The Company will promptly advise the Underwriters (i) when,
during any period that a prospectus relating to the Offered Certificates is
required to be delivered under the Act, any amendment to the Registration
Statement affecting the Offered Certificates shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration Statement
or the Prospectus, or for any additional information, affecting or in respect of
the Offered Certificates, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement affecting the
Offered Certificates or the institution or threatening of any
-6-
<PAGE>
proceeding for that purpose and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will not file any amendment to the
Registration Statement affecting the Offered Certificates or any supplement to
the Prospectus unless the Company has furnished the Underwriters with a copy for
their review prior to filing, and will not file any such proposed amendment or
supplement to which the Representative may reasonably object, in any event until
after the end of the period during which a prospectus is required to be
delivered to purchasers of the Offered Certificates under the Act. Subject to
the foregoing sentence, the Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said Rule. The Company will use its best efforts to prevent the issuance of any
stop order suspending the effectiveness of the Registration Statement affecting
the Offered Certificates and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to the
Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company by
an Underwriter prior to 10:30 a.m. (New York City time) and (ii) the date on
which this Agreement is executed and delivered. The Company will cause one
Collateral Term Sheet (as defined in Section 9 below) with respect to the
Offered Certificates that is delivered by the Underwriters to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on a
Current Report pursuant to Rule 13a-11 under the Exchange Act on the business
day immediately following the day on which such Collateral Term Sheet is
delivered to counsel for the Company by the Underwriters prior to 10:30 a.m.
(New York City time). In addition, if at any time prior to the availability of
the Prospectus Supplement, the Underwriters have delivered to any prospective
investor a subsequent Collateral Term Sheet that reflects, in the reasonable
judgment of the Representative and the Company, a material change in the
characteristics of the Mortgage Loans from those on which a Collateral Term
Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet that
is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to 10:30
a.m. (New York City time). In each case, the Company will promptly advise the
Underwriters when such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing provisions of this Section 5(b), the
Company shall have no obligation to file any materials provided by any
Underwriter pursuant to Section 9 which, in the reasonable determination of the
Company, are not required to be filed pursuant to the Kidder Letters or the PSA
Letter (each as defined in Section 9 below), or contain erroneous information or
contain any untrue statement of a material fact or, when read in conjunction
with the Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any Computational
-7-
<PAGE>
Materials or ABS Term Sheets provided by any Underwriter to the Company pursuant
to Section 9 hereof. The Company shall give notice to the Underwriters of its
determination not to file any materials pursuant to the preceding sentence and
agrees to file such materials if the Representative reasonably object to such
determination within one business day after receipt of such notice.
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the rules under the Act, the
Company promptly will prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance and, if
such amendment or supplement is required to be contained in a post-effective
amendment to the Registration Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible; provided, however, that the Company will not be required to file any
such amendment or supplement with respect to any Computational Materials or ABS
Term Sheets incorporated by reference in the Prospectus other than any
amendments or supplements of such Computational Materials or ABS Term Sheets
that are furnished to the Company pursuant to Section 9 hereof which the Company
determines to file in accordance therewith.
(d) The Company will furnish to any Underwriter and counsel for the
Underwriters, without charge, for so long as delivery of a prospectus relating
to the Offered Certificates may be required by the Act, as many copies of the
Prospectus, the Preliminary Prospectus, if any, and any amendments and
supplements thereto as such Underwriter may reasonably request.
(e) The Company agrees that, so long as the Offered Certificates
shall be outstanding, it will deliver or cause to be delivered to the
Underwriters the annual statements as to compliance and the annual statements of
a firm of independent public accountants, furnished to the Trustee by the Master
Servicer and the Special Servicer pursuant to Sections 3.13 and 3.14 of the
Pooling and Servicing Agreement, as soon as such statements are furnished to the
Company.
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Representative may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(g) All costs and expenses in connection with the transactions
contemplated hereby will be payable in accordance with the Term Sheet for the
Joint Conduit Securitization between the Representative and GECA.
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<PAGE>
(h) The Company shall deliver to each Underwriter a copy or series
of copies of the Prospectus (exclusive of information incorporated therein and
further exclusive of the exhibits and annexes to the Prospectus Supplement) at
or prior to the printing thereof, marked to show changes from the Preliminary
Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Agreement shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company contained herein
as of the date hereof and as of the Closing Date, to the accuracy in all
material respects of the statements of the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance in all material
respects by the Company of its obligations hereunder and to the following
additional conditions with respect to the Offered Certificates:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened; and the Prospectus Supplement shall have been
filed with the Commission within the time period prescribed by the Commission.
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of the
Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(c) The Underwriters shall have received with respect to the Company
a good standing certificate from the Secretary of State of the State of
Delaware, dated not earlier than ten days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling and
Servicing Agreement or any other document or certificate delivered on or before
the Closing Date in connection with the transactions contemplated herein or in
the Pooling and Servicing Agreement, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (ii) no event (including, without limitation, any act or
omission on the part of the Company) has occurred since the date of the good
standing certificate referred to in paragraph (c) above which has affected the
good standing of the Company under the laws of the State of Delaware. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement and the Pooling and Servicing
Agreement.
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(e) The Underwriters shall have received from Sidley & Austin,
counsel for the Company, a favorable opinion, dated the Closing Date and
reasonably satisfactory in form and substance to counsel for the Underwriters,
to the effect that:
(i) The Registration Statement has become effective under the Act.
(ii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or threatened.
(iii) The Registration Statement, the Basic Prospectus and the
Prospectus Supplement, as of their respective effective or issue dates
(other than the financial statements, schedules and other financial and
statistical information contained therein or omitted therefrom, as to
which such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations thereunder.
(iv) To such counsel's knowledge, there are no material contracts,
indentures or other documents relating to the Offered Certificates of a
character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware and
has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and the Pooling and Servicing
Agreement.
(vi) Each of this Agreement and the Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the Company.
(vii) Each of the Pooling and Servicing Agreement and this Agreement
constitutes a valid, legal and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
(A) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance and injunctive relief, regardless
of whether considered in a proceeding in equity or at law, (B) the effect
of certain laws, regulations and judicial and other decisions upon the
availability and enforceability of certain remedies including the remedies
of specific performance and self-help and provisions purporting to waive
the obligation of good faith, materiality, fair dealing, diligence,
reasonableness or objection to venue or forum, to confer subject matter
jurisdiction on a federal court located within the State of New York to
adjudicate any controversy in any situation in which such court would not
have subject matter jurisdiction, to waive the right to jury trial, to
impose a penalty or forfeiture, to release, exculpate or exempt a party
from, or indemnify that party for, liability for its own action or
inaction to the extent that the action or inaction includes negligence,
recklessness or willful or unlawful conduct, to sever any provision of any
agreement, to restrict access to legal or
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equitable remedies, to establish evidentiary standards, to appoint any
person or entity as the attorney-in-fact of any other person or entity, to
require that any agreement may only be amended, modified or waived in
writing, to provide that all rights or remedies of any party are
cumulative and may be enforced in addition to any other right or remedy,
to provide that the election of a particular remedy does not preclude
recourse to one or more other remedies, to provide that the failure to
exercise or the delay in exercising rights or remedies will not operate as
a waiver of any such rights or remedies, to waive rights or remedies which
can not be waived as a matter of law, to provide for set-off unless there
is mutuality between the parties or to provide that any agreement is to be
governed by or construed in accordance with the laws of any jurisdiction
other than the State of New York, (C) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, fraudulent
conveyance and transfer, moratorium and other similar laws affecting the
rights of creditors or secured parties and (D) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of any provision of
any agreement which purports or is construed to provide indemnification
with respect to securities law violations.
(viii) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with this Agreement, will be entitled
to the benefits of the Pooling and Servicing Agreement.
(ix) Neither the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement nor the consummation of any of the
other transactions contemplated by, or the fulfillment by the Company of
the terms of, this Agreement and the Pooling and Servicing Agreement, will
conflict with or result in a breach or violation of any term or provision
of the certificate of incorporation or by-laws of the Company or any
federal or State of New York statute or regulation, except such counsel
need express no opinion as to compliance with the securities laws of the
State of New York and other particular States in connection with the
purchase and the offer and sale of the Offered Certificates by the
Underwriters.
(x) No consent, approval, authorization or order of any federal or
State of New York court, agency or other governmental body is required for
the consummation by the Company of the transactions contemplated by the
terms of this Agreement and the Pooling and Servicing Agreement, except
such as may be required under the securities laws of the State of New York
and other particular States in connection with the purchase and the offer
and sale of the Offered Certificates by the Underwriters as to which such
counsel need express no opinion, and except such as have been obtained.
(xi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended. The Trust
Fund is not required to be registered under the Investment Company Act of
1940, as amended.
(xii) The statements set forth in the Prospectus Supplement under
the headings "Description of the Offered Certificates" and "Servicing of
the Mortgage Loans" and in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing
Documents", insofar as such statements purport to summarize certain
material
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provisions of the Offered Certificates and the Pooling and Servicing
Agreement, are accurate in all material respects.
(xiii) The statements set forth in the Prospectus Supplement under
the headings "Certain ERISA Considerations", "Federal Income Tax
Consequences" and "Legal Investment", and in the Basic Prospectus under
the headings "ERISA Considerations", "Federal Income Tax Consequences" and
"Legal Investment", to the extent that they purport to describe certain
matters of federal law or legal conclusions with respect thereto, while
not discussing all possible consequences of an investment in the Offered
Certificates to all investors, provide in all material respects an
accurate summary of such matters and conclusions set forth under such
headings.
(xiv) As described in the Prospectus Supplement, and assuming
compliance with all the provisions of the Pooling and Servicing Agreement,
(A) REMIC I will qualify as a REMIC within the meaning of Sections 860A
through 860G of the Internal Revenue Code of 1986 in effect on the date
hereof (the "REMIC Provisions") and the REMIC I Regular Interests (as
defined in the Pooling and Servicing Agreement) will be "regular
interests" and the Class R-I Certificates will evidence the sole class of
"residual interests" in REMIC I (as both terms are defined in the REMIC
Provisions in effect on the Closing Date), (B) REMIC II will qualify as a
REMIC within the meaning of the REMIC Provisions, and the REMIC II Regular
Interests (as defined in the Pooling and Servicing Agreement) will be
"regular interests" and the Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II, and (C) REMIC III will qualify
as a REMIC within the meaning of the REMIC Provisions, and the Class S,
Class A-1A, Class A-1B, Class A-1C, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7, Class B-8, Class C and Class D Certificates will evidence
"regular interests" and the Class R-III Certificates will evidence the
sole class of "residual interests" in REMIC III.
(xv) The respective portions of the Trust Fund consisting of Grantor
Trust E and Grantor Trust R-I (each as defined in the Pooling and
Servicing Agreement) will each be classified as a grantor trust under
subpart E, part I of subchapter J of the Internal Revenue Code of 1986.
Such opinion (x) may express its reliance as to factual matters on
certificates of government and agency officials and the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement and the Pooling and Servicing Agreement, (y)
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto (other than the Company)
and may otherwise be based on such assumptions as may be reasonably acceptable
to counsel for the Underwriters, and (z) may be qualified as an opinion only on
the law of the State of New York, the federal laws of the United States of
America and the General Corporation Law of the State of Delaware.
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<PAGE>
Based on such counsel's participation in conferences with officers
and other representatives of the Company and of the Master Servicer, the Special
Servicer, the Trustee, the Underwriters, the Mortgage Loan Sellers, and their
respective counsel, at which the contents of the Registration Statement and the
Prospectus were discussed and, although such counsel need not pass upon or
assume responsibility for the actual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xii) and (xiii) above) and need not make an independent
check or verification thereof, on the basis of the foregoing, such counsel shall
also confirm that nothing has come to the attention of such counsel that would
lead such counsel to believe that the Registration Statement (other than (x)
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and (y) the documents incorporated
therein, as to which such counsel need express no opinion), as of its effective
date, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the Prospectus
Supplement and at the Closing Date, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (other than (x) financial statements, schedules and other
numerical, financial and statistical data included therein or omitted therefrom
and (y) the documents incorporated therein, as to which such counsel need
express no opinion).
(f) The Underwriters shall have received from counsel to each
Mortgage Loan Seller, a letter, dated the Closing Date, and reasonably
satisfactory in form and substance to counsel for the Underwriters, to the
effect that, based on such counsel's participation in conferences with officers
and other representatives of the Company, the Master Servicer, the Special
Servicer, the Trustee, the Underwriters, the Mortgage Loan Sellers, and their
respective counsel, at which the contents of the Prospectus Supplement were
discussed and, although such counsel need not pass upon or assume responsibility
for the actual accuracy, completeness or fairness of the statements contained in
the Prospectus Supplement and need not make an independent check or verification
thereof, nothing has come to the attention of such counsel that would lead such
counsel to believe that the Prospectus Supplement, as of the date of the
Prospectus Supplement and at the Closing Date, insofar as it relates to the
characteristics of the Mortgage Loans sold by such Mortgage Loan Seller to the
Company, the related Mortgaged Properties and/or the related Borrowers,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (other than
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and the documents incorporated
therein, as to which such counsel need express no opinion).
(g) The Underwriters shall have received from their counsel an
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to the Representative.
(h) The Underwriters shall have received, with respect to each of
the Master Servicer, the Special Servicer and the Trustee, a favorable opinion
of counsel, dated the Closing Date and satisfactory to counsel for the
Underwriters, addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and delivery
of the Pooling and Servicing Agreement by such party and, subject to the same
limitations as set forth in
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<PAGE>
Section 6(e)(vii), the enforceability of the Pooling and Servicing Agreement
against such party. Such opinion may express its reliance as to factual matters
on representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of parties to,
this Agreement and the Pooling and Servicing Agreement and on certificates
furnished by public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the party on behalf of which such opinion is
being rendered and be based upon such other assumptions as may be reasonably
acceptable to counsel for the Underwriters. Such opinion may be qualified as an
opinion only on the laws of the jurisdiction wherein the subject party is
organized, the laws of the State of New York and the federal laws of the United
States of America.
(i) The Underwriters shall have received from Arthur Andersen LLP,
certified public accountants, letters dated the date of the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, stating in effect that, using the assumptions and methodology used
by the Company, all of which shall be described in such letters, they have
recalculated such numbers and percentages set forth in the Preliminary
Prospectus Supplement and the Prospectus Supplement as the Representative may
reasonably request and as are agreed to by Arthur Andersen LLP, compared the
results of their calculations to the corresponding items in the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and found
each such number and percentage set forth in the Preliminary Prospectus
Supplement and the Prospectus Supplement, respectively, to be in agreement with
the results of such calculations.
(j) The Underwriters shall have received all opinions, certificates
and other documents required under the Mortgage Loan Sale and Purchase
Agreements to be delivered by the respective Mortgage Loan Sellers and their
counsel in connection with their sales of Mortgage Loans to the Company, and
each such opinion shall be dated the Closing Date and addressed to the
Underwriters.
(k) The Underwriters shall have received all opinions rendered to
the rating agency or agencies identified on Schedule II hereto, by counsel to
the Company and the Mortgage Loan Sellers, and each such opinion shall be dated
the Closing Date and addressed to the Underwriters.
(l) The Offered Certificates listed on Schedule II hereto shall have
been rated as indicated on such Schedule by the rating agency or agencies
identified on such Schedule and such ratings shall not have been rescinded.
(m) All proceedings in connection with the transactions contemplated
by this Agreement, and all documents incident hereto and thereto, shall be
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters.
(n) Subsequent to the date hereof, there shall not have occurred any
change, or development including a prospective change, in or affecting the
business or properties of the Company which, in the judgment of the
Representative after consultation with the Company, materially impairs the
investment quality of the Offered Certificates so as to make it impractical or
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<PAGE>
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates as contemplated in the Prospectus.
7. Cancellation for Failure to Perform. If any of the conditions
specified in Section 6 shall not have been fulfilled in all material respects
when and as provided by this Agreement, or if any of the opinions and
certificates mentioned in Section 6 or elsewhere in this Agreement shall not be
in all material respects reasonably satisfactory in form and substance to the
Representative and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representative. Notice of such cancellation
shall be given to the Company in writing, or by telephone or by either telegraph
or telecopier confirmed in writing.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the meaning of
the Act or the Exchange Act, against any and all losses, claims, damages,
liabilities, costs and expenses, joint or several, to which such Underwriter or
any such controlling person may become subject, under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment of or supplement to any such document, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending against such loss, claim, damage, liability, cost, expense or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability, cost or expense (A) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein, (B) arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto) in reliance upon and
in conformity with (1) the Master Tape (it being acknowledged that the Master
Tape was used to prepare any Preliminary Prospectus Supplement and the
Prospectus Supplement, including, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the accompanying diskette), (2) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement or (3) any other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers furnished to the Company by any Mortgage Loan Seller, or (C)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment thereof or supplement thereto) with
respect to the Mortgage Loans, the Mortgaged Properties, the Borrowers and/or
the Mortgage Loan Sellers under the headings "Summary of the Prospectus
Supplement--The Mortgage Loans and the Underlying Real Properties", "Risk
Factors"
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<PAGE>
and "Description of the Mortgage Pool" therein or on Exhibit A-1 or Exhibit A-2
thereto or on the accompanying diskette, or (D) arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Computational Materials or ABS Term Sheets (or any amendments
thereof or supplements thereto) furnished to prospective investors and made a
part of, or incorporated by reference into, the Registration Statement or in any
Preliminary Prospectus or the Prospectus (or any amendment thereof or supplement
thereto) by reason of a filing made pursuant to Section 9 (it being understood
and agreed that if any ABS Term Sheet is both incorporated by reference into the
Prospectus or any Preliminary Prospectus and also actually included therein,
this clause (D) is intended solely to exclude the version of such ABS Term Sheet
that is incorporated by reference therein); and provided, further, that such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling an Underwriter) from whom
the person asserting any such loss, claim, damage, liability, cost or expense
purchased the Offered Certificates which are the subject thereof if (w) such
Underwriter did not deliver to such person a copy of the Prospectus (or the
Prospectus as most recently amended or supplemented) at or prior to the
confirmation of the sale of such Certificates to such person in any case where
such delivery is required by the Act, (x) the Company has previously furnished
to such Underwriter copies thereof in sufficient quantity, (y) the untrue
statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as most recently
amended or supplemented) and (z) such correction would have cured the defect
giving rise to any such loss, claim, damage, liability, cost or expense. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, against any and all
losses, claims, damages, liabilities, costs and expenses to which the Company or
any such director, officer or controlling person may become subject under the
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities, costs and expenses (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in (i) any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto), or (ii) any
Computational Materials or ABS Term Sheets (or amendments thereof or supplements
thereto) delivered to prospective investors by such Underwriter, which were also
furnished to the Company by such Underwriter pursuant to or as contemplated by
Section 9 and made a part of, or incorporated by reference in, the Registration
Statement or in any Preliminary Prospectus Supplement or the Prospectus (or any
amendment thereof or supplement thereto) by reason of a filing made pursuant to
Section 9, or arise out of or are based on the omission or alleged omission to
state in any such document a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made (and, in
the case of Computational Materials and ABS Term Sheets, when read in
conjunction with the Prospectus), not misleading; provided, however, that no
Underwriter shall be liable for any such loss, claim, damage, liability, cost or
expense that arises out of an untrue statement or alleged untrue statement or
omission or alleged omission in any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto),
including, without limitation, any ABS Term Sheet actually included therein,
except to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information relating to such Underwriter furnished to the Company by
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such Underwriter specifically for use in such document; and provided, further,
that no Underwriter shall be liable to the extent that any loss, claim, damage,
liability, cost or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in any Computational
Materials or ABS Term Sheets (or any amendment thereof or supplement thereto)
made in reliance upon and in conformity with (A) the Master Tape (it being
acknowledged that the Master Tape was used to prepare any Computational
Materials and ABS Term Sheets), (B) the representations and warranties of any
Mortgage Loan Seller set forth in or made pursuant to the related Mortgage Loan
Purchase and Sale Agreement or (C) any other information concerning the
characteristics of the Mortgage Loans, the Mortgaged Properties or the Borrowers
furnished to the Underwriters by the Company or any Mortgage Loan Seller (the
error in the Master Tape or any such other information concerning the
characteristics of the Mortgage Loans, the Mortgaged Properties or the Borrowers
or the breach in such representations and warranties that gave rise to such
untrue statement or omission, a "Collateral Error"), except to the extent that
the related Mortgage Loan Seller or the Company notified such Underwriter in
writing of such Collateral Error or provided in written or electronic form
information superseding or correcting such Collateral Error (in any case, a
"Corrected Collateral Error") prior to the time of confirmation of sale to the
person that purchased the Offered Certificates that are the subject of any such
loss, claim, damage, liability, cost or expense, or action in respect thereof,
and such Underwriter failed to deliver to such person corrected Computational
Materials or ABS Term Sheets (or, if the superseding or correcting information
was contained in the Prospectus, failed to deliver to such person the Prospectus
as amended or supplemented) at or prior to confirmation of such sale to such
person. This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. For all purposes of this Agreement, the Company
acknowledges that the statements set forth in the second sentence of the last
paragraph of the cover page, and the first sentence of the third paragraph, the
first sentence of the fifth paragraph and the first sentence of the sixth
paragraph under the heading "Method of Distribution" in the Prospectus
Supplement and any Preliminary Prospectus Supplement constitute the only
information furnished in writing by or on behalf of the Underwriters for
inclusion in the documents referred to in the foregoing indemnity (other than
any Computational Materials or ABS Term Sheets (or amendments thereof or
supplements thereto) furnished to the Company by any Underwriter for filing
pursuant to Section 9, any such ABS Term Sheet to be treated separately from any
version thereof actually included in the Prospectus as described in Section 1(a)
hereof), and the Underwriters confirm that such statements are correct. Any
Computational Materials or ABS Term Sheets (or amendments thereof or supplements
thereto) so furnished to the Company by any particular Underwriter shall relate
exclusively to and be, to the extent provided herein, the several responsibility
of such Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under paragraph
(a) or (b) of this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under paragraph (a) or (b) of this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under paragraph (a) or (b), as
applicable, of this Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory
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to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party); provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by the Representative in the case of paragraph (a) of this Section 8
and by the Company in the case of paragraph (b) of this Section 8, representing
the indemnified parties under such paragraph (a) or (b), as the case may be, who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages,
liabilities, costs or expenses referred to in and intended to be covered under
such paragraph (a) or (b), as the case may be, above, then the indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities, costs or expenses as
follows:
(i) in the case of any such losses, claims, damages, liabilities,
costs and expenses (or actions in respect thereof) referred to in and
intended to be covered under paragraph (a) above, in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such
discount and the purchase price of the Offered Certificates specified in
Schedule II hereto and the Company is responsible for the balance (or, if
such allocation is not permitted by applicable law or if the indemnified
party failed to give the notice required in Section 8(c) or in the last
paragraph of this Section 8(d), in such proportion as would be determined
pursuant
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<PAGE>
to the immediately following clause (ii)); provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Offered Certificates)
be responsible under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Offered Certificates purchased by
such Underwriter hereunder; and
(ii) in the case of any losses, claims, damages, liabilities, costs
and expenses (or actions in respect thereof) referred to in and intended
to be covered under paragraph (b) above, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the statement or
omissions which resulted in such losses, claims, damages, liabilities,
costs or expenses (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact that is the basis for such loss, claim, damage, liability,
cost or expense, results from information prepared by the Company on the
one hand or an Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities, costs
or expenses (or actions in respect thereof) referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that the
indemnifying party will be ultimately obligated to pay such expenses. If any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the indemnified party
that received such payment shall promptly refund the amount so paid to the
indemnifying party.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8(d), each person who controls an Underwriter within the meaning of the
Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding sentence of this Section 8(d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 8(d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any liability it or they may have otherwise than
under this Section 8(d).
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<PAGE>
9. Computational Materials and ABS Term Sheets. (a) Not later than
10:30 a.m., New York City time, on the date hereof, the Underwriters shall
deliver to the Company and its counsel, as provided below, a complete copy of
all materials provided by the Underwriters to prospective investors in the
Offered Certificates which constitute either (i) "Computational Materials"
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to Kidder, Peabody Acceptance
Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder Structured Asset
Corporation and the no-action letter dated May 27, 1994 issued by the Division
of Corporation Finance of the Commission to the Public Securities Association
(together, the "Kidder Letters") or (ii) "ABS Term Sheets" within the meaning of
the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Kidder Letters, the "No-Action Letters"), if
the filing of such materials with the Commission is a condition of the relief
granted in such letters and, in the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, such Collateral
Term Sheets have not previously been delivered to the Company as contemplated by
Section 9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company and its counsel
pursuant to this paragraph (a) shall be made in paper form and, in the case of
ABS Term Sheets, electronic format suitable for filing with the Commission.
(b) Each Underwriter represents and warrants to and agrees with the
Company, as of the date hereof and as of the Closing Date, as applicable, that:
(i) if such Underwriter has provided any Collateral Term Sheets to
potential investors in the Offered Certificates prior to the date hereof
and if the filing of such materials with the Commission is a condition of
the relief granted in the PSA Letter, then in each such case such
Underwriter delivered to the Company and its counsel, in the manner
contemplated by Section 9(a), a copy of such materials no later than 10:30
a.m., New York City time, on the first business day following the date on
which such materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant
to Section 9(a) or as contemplated in Section 9(b)(i) constitute all of
the materials relating to the Offered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to
prospective investors in the Offered Certificates prior to the date
hereof, except for any Preliminary Prospectus and any Computational
Materials and ABS Term Sheets with respect to the Offered Certificates
which are not required to be filed with the Commission in accordance with
the No-Action Letters, and all Computational Materials and ABS Term Sheets
provided by such Underwriter to potential investors in the Offered
Certificates comply with the requirements of the No-Action Letters;
-20-
<PAGE>
(iii) on the respective dates any such Computational Materials
and/or ABS Term Sheets with respect to the Offered Certificates referred
to in Section 9(b)(ii) were last furnished by such Underwriter to each
prospective investor, on the date of delivery thereof to the Company
pursuant to or as contemplated by this Section 9 and on the Closing Date,
such Computational Materials and/or ABS Term Sheets did not and will not
include any untrue statement of a material fact or, when read in
conjunction with the Prospectus, omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates were furnished to a prospective
investor and on the date hereof, such Underwriter possessed, and on the
date of delivery of such materials to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, such Underwriter
will possess, the capability, knowledge, expertise, resources and systems
of internal control necessary to ensure that such Computational Materials
and/or ABS Term Sheets conform to the representations and warranties of
such Underwriter contained in subparagraphs (ii) and (iii) above of this
Section 9(b);
(v) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to prospective investors
contained and will contain a legend, prominently displayed on the first
page thereof, indicating that the information contained therein will be
superseded by the description of the Mortgage Loans contained in the
Prospectus and, except in the case of the initial Collateral Term Sheet,
that such information supersedes the information in all prior Collateral
Term Sheets;
(vi) all Computational Materials and ABS Term Sheets with respect to
the Offered Certificates furnished by such Underwriter to prospective
investors contained and will contain a legend generally to the effect that
the Company has not participated in the preparation of or authorized the
distribution of such Computational Materials or ABS Term Sheets; and
(vii) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS Term
Sheets or other materials relating to the Offered Certificates (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time
as the delivery of such Computational Materials, ABS Term Sheets or other
materials;
provided that no Underwriter makes any representation or warranty as to whether
any Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement or omission resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriter from the
related Mortgage Loan Seller or the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
-21-
<PAGE>
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Representative or counsel for the Underwriters to amend or
supplement the Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or ABS Term Sheets provided by any
Underwriter pursuant to or as contemplated by this Section 9 or the omission to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made (and when read in conjunction with
the Prospectus), not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the Exchange Act or the
rules thereunder, the Underwriters, at their expense (or, if such amendment or
supplement is necessary in order for any Current Report to comply with the Act
or the Exchange Act or the rules thereunder, at the expense of the Company),
shall prepare and furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and shall distribute such amendment
or supplement to each prospective investor in the Offered Certificates that
received such information being amended or supplemented. The Company shall have
no obligation to file such amendment or supplement if the Company determines
that (i) such amendment or supplement contains any untrue statement of a
material fact or, when read in conjunction with the Prospectus, omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood,
however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any such amendment or supplement
provided by the Underwriters to the Company pursuant to this paragraph (c)) or
(ii) such filing is not required under the Act. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, no Underwriter makes any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriter from the related
Mortgage Loan Seller or the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Corrected Collateral Error).
(d) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Company or its counsel to amend or supplement the Prospectus
as a result of an untrue statement of a material fact contained in any
Computational Materials or ABS Term Sheets provided by any Underwriter pursuant
to or as contemplated by this Section 9 or the omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they made (and when read in conjunction with the
Prospectus), not misleading, or if it shall be necessary to amend or supplement
any Current Report to comply with the Act or the Exchange Act or the rules
thereunder, the Company promptly will notify each Underwriter of the necessity
of such amendment or supplement, and the Underwriters, at their expense (or, if
such amendment or supplement is necessary in order for any Current Report to
comply with the Act or the Exchange Act or the rules thereunder, at the expense
of the Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which
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<PAGE>
will effect such compliance and shall distribute such amendment or supplement to
each prospective investor in the Offered Certificates that received such
information being amended or supplemented. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, no Underwriter makes any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriter from the related
Mortgage Loan Seller or the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Corrected Collateral Error).
(e) The Underwriters further agree to provide to the Company, at
their own expense, any accountants' letters obtained relating to the
Computational Materials and/or ABS Term Sheets, which accountants' letters shall
be addressed to the Company or shall state that the Company may rely thereon;
provided that the Underwriters shall have no obligation to procure any such
letter.
10. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the amount
of the Offered Certificates agreed by such Underwriter to be purchased under
this Agreement, upon tender of such Offered Certificates in accordance with the
terms hereof, and the amount of the Offered Certificates not purchased does not
aggregate more than 10% of the total amount of the Offered Certificates set
forth in Schedule I hereof (based on aggregate purchase price), the remaining
Underwriters shall be obligated to take up and pay for the Offered Certificates
that the withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the amount
of the Offered Certificates agreed by such Underwriter to be purchased under
this Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender
of such Offered Certificates in accordance with the terms hereof, and the amount
of the Offered Certificates not purchased aggregates more than 10% of the total
amount of the Offered Certificates set forth in Schedule I hereto (based on
aggregate price), and arrangements satisfactory to the remaining Underwriter(s)
and the Company for the purchase of such Certificates by other persons are not
made within 36 hours thereafter, this Agreement shall terminate. In the event of
any such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g) and Section 8 hereof)
nor shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some reason permitted under this Agreement, to purchase the
amount of the Offered Certificates such Underwriter agreed to purchase
hereunder) be under any liability to the Company (except to the extent provided
in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve any
Defaulting Underwriter from any liability it may have to the Company or to the
other Underwriter(s) by reason of its failure to take up and pay for Offered
Certificates as agreed by such Defaulting Underwriter.
-23-
<PAGE>
11. Termination Upon the Occurrence of Certain Events. This
Agreement shall be subject to termination in the absolute discretion of the
Representative by notice given to the Company prior to delivery of and payment
for all Offered Certificates if prior to such time (i) trading in securities of
the Company or any affiliate on the New York Stock Exchange shall have been
suspended or limited, or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared by either federal
or New York State authorities, or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Representative, impractical to market the Offered
Certificates.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Offered Certificates. The
provisions of Sections 5(g), 7, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any Underwriter, will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to it
at its address set forth on Schedule I hereto (or, at such other address as may
be furnished by such Underwriter to the Company in accordance with this Section
13); or, if sent to the Company, will be mailed, delivered or either telegraphed
or transmitted by telecopier and confirmed to it at 277 Park Avenue, 9th Floor,
New York, New York 10172, Attention: N. Dante LaRocca (or at such other address
as may be furnished by the Company to each Underwriter in accordance with this
Section 13); or, if sent to the Additional Party, will be mailed, delivered or
either telegraphed or transmitted by telecopier and confirmed to it at 277 Park
Avenue, 9th Floor, New York, New York 10172, Attention: N. Dante LaRocca (or at
such other address as may be furnished by the Additional Party to each
Underwriter in accordance with this Section 13).
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors, heirs and legal representatives, and no other person will have
any right or obligation hereunder.
15. Miscellaneous. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York applicable to
agreements made and to be performed entirely in said State. This Agreement may
be executed in any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together constitute but one
and the same instrument. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought.
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<PAGE>
16. Obligations of the Additional Party. The Additional Party
agrees, in consideration of and as an inducement to the Underwriters' purchase
of the Offered Certificates from the Company, to indemnify and hold harmless
each Underwriter, and each person who controls each Underwriter within the
meaning of the Act or the Exchange Act, against any failure by the Company to
perform any of its obligations under Section 8 hereof (as they relate to the
indemnity agreement of the Company in Section 8(a) and the corresponding
contribution obligations in Section 8(d) (the "Covered Obligations")), promptly
after receipt from any Underwriter of written notice of any such failure. The
Additional Party hereby waives notice of acceptance of its obligations hereunder
and notice of any obligation or liability to which it may apply, and waives
presentment, demand for payment, protest, notice of dishonor or non-payment of
any such obligation or liability, suit or the taking of other action by any
party hereto against, and any other notice to, the Additional Party. The
Additional Party's obligations hereunder shall not be affected by any events,
occurrences or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor or surety, and such obligations
will only be discharged by full, complete and final payment of the Covered
Obligations.
[SIGNATURE PAGE FOLLOWS]
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Additional Party and the Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/ N. Dante La Rocca
-----------------------------------------
Name: N. Dante La Rocca
Title: Senior Vice President
DLJ MORTGAGE CAPITAL, INC.*
By: /s/ N. Dante La Rocca
-----------------------------------------
Name: N. Dante La Rocca
Title: Senior Vice President
Accepted at New York, New York,
as of the date first written above, on
behalf of each of the underwriters
identified on Schedule I hereto.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ N. Dante La Rocca
-----------------------------
Name: N. Dante La Rocca
Title: Senior Vice President
* DLJ Mortgage Capital, Inc. is executing this Underwriting Agreement solely
with respect to its obligations set forth in Section 16 and with respect
to the matters set forth in Section 12, Section 13, Section 14 and Section
15.
<PAGE>
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
- ---------------------------- ----- ----------------------------
Donaldson, Lufkin & Jenrette Class S $899,289,205(1)
Securities Corporation Class A-1A $140,618,000
277 Park Avenue Class A-1B $509,118,000
New York, New York 10172 Class A-1C $17,716,000
Attention: N. Dante LaRocca Class A-2 $25,000,000
Class A-3 $49,461,000
Class A-4 $13,489,000
Class A-5 $15,738,000
Class B-1 $17,986,000
Class B-2 $15,737,000
- ----------
(1) Notional Amount
<PAGE>
SCHEDULE II
Registration Statement No. 333-82275
Basic Prospectus dated October 5, 1999
Prospectus Supplement dated October 5, 1999
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, Class S,
Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class A-3, Class A-4,
Class A-5, Class B-1 and Class B-2
Cut-off Date: October 1, 1999
Closing: 10:00 a.m. on October 12, 1999
at the offices of
Sidley & Austin
875 Third Avenue
New York, New York 10022
<PAGE>
Schedule II (continued)
<TABLE>
<CAPTION>
Initial
Aggregate Certificate
Principal Balance
or Notional Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating (3)
- ----------------- ------------------ ----------------- ----------------- ----------
<S> <C> <C> <C> <C>
Class S $899,289,205(4) 0.8943% 4.4238% Aaa/AAA
Class A-1A $140,618,000 7.1200% 100.515625% Aaa/AAA
Class A-1B $509,118,000 7.3400% 100.484375% Aaa/AAA
Class A-1C $17,716,000 7.4400% 100.140625% Aa1/AAA
Class A-2 $25,000,000 7.5400% 100.53125% Aa2/AA
Class A-3 $49,461,000 7.7300% 100.5000% A2/A
Class A-4 $13,489,000 7.8300% 100.453125% A3/A
Class A-5 $15,738,000 8.1200% 100.53125% Baa1/A-
Class B-1 $17,986,000 8.2400% 98.609375% Baa2/BBB
Class B-2 $15,737,000 8.2400% 93.015625% Baa3/BBB-
</TABLE>
- ----------
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Offered Certificates to be purchased.
The purchase price for each class of the Offered Certificates will include
accrued interest at the initial Pass-Through Rate therefor on the
aggregate stated or notional amount, as applicable, thereof to be
purchased from the Cut-off Date to but not including the Closing Date.
(3) By each of Moody's Investors Service, Inc. and Fitch IBCA, Inc.,
respectively
(4) Aggregate Notional Amount.
<PAGE>
[LETTERHEAD OF SIDEY & AUSTIN]
October 12, 1999
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Dear Sirs:
Reference is made to the prospectus supplement dated October 5, 1999
(the "Prospectus Supplement") and the accompanying prospectus (the "Prospectus")
dated October 5, 1999, relating to the offering of ten classes of DLJ Commercial
Mortgage Trust 1999-CG3, Commercial Mortgage Pass-Through Certificates, Series
1999-CG3 (the "Offered Certificates").
We have acted as tax counsel to DLJ Commercial Mortgage Corp. (the
"Company") in connection with the issuance of the Offered Certificates. We have
reviewed the statements under the heading "Federal Income Tax Consequences" in
the Prospectus and the Prospectus Supplement; and, to the extent they constitute
matters of Federal tax law or legal conclusions with respect thereto, we hereby
confirm our opinion that such statements while not discussing all possible
consequences of an investment in the Offered Certificates to all investors, are
correct in all material respects and constitute our opinion regarding such
matters of Federal tax law. In rendering this opinion, we have relied without
independent investigation on the description of the Offered Certificates set
forth in the Prospectus Supplement. We hereby consent to the filing of this
opinion as part of the Company's Registration Statement on Form S-3 (No.
333-82275) as an exhibit to a Current Report on Form 8K.
We assume no obligation to update or supplement this letter to
reflect any facts or circumstances which may hereafter come to our attention
with respect to the opinion expressed above, including any changes in applicable
law which may hereafter occur.
Very truly yours,
/s/ Sidley & Austin
