SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: November 4, 1999
(Date of earliest event reported)
Asset Securitization Corporation,
Commercial Mortgage Asset Trust
Commercial Mortgage Pass-Through Certificates, Series 1999-C2
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(Exact name of registrant as specified in its charter)
Delaware 333-53859 13-3672337
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(State or Other (Commission (I.R.S. Employer
Jurisdiction File Number) Identification No.)
of Incorporation)
Two World Financial Center, Building B, New York, New York 10281
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Address of Principal Executive Office
Registrant's telephone number, including area code: (212) 667-9300
<PAGE>
ITEM 5. OTHER EVENTS.
Attached as Exhibit 99.1 is the Pooling and Servicing Agreement (as
defined below) for the Certificates. On October 11, 1999, the Company caused the
issuance, pursuant to a Pooling and Servicing Agreement, dated as of October 11,
1999, by and among the Company, as depositor, BNY Asset Solutions LLC, as
servicer, Lennar Partners, Inc., as special servicer, LaSalle Bank National
Association, as trustee, and ABN AMRO Bank, N.V., as fiscal agent, of the
Certificates, issued in twenty-one classes: the Class A-1, the Class A-2, the
Class A-3, the Class CS-1, the Class X, the Class B, the Class C, the Class D,
the Class E, the Class F, the Class G, the Class H, the Class J, the Class K,
the Class L, the Class M, the Class N, the Class Q-1, the Class Q-2, the Class R
and the Class LR Certificates.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
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Item 601(a) of
Exhibit No. Regulation S-K Description
Exhibit No.
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99.1 4 Pooling and Servicing
Agreement, dated as of
October 11, 1999
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<PAGE>
Pursuant to the requirements of the Securities Act of 1934, the
Registrant has duly caused this report to be signed on behalf of the Registrant
by the undersigned thereunto duly authorized.
ASSET SECURITIZATION CORPORATION
By: /s/ Brad Altberger
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Name: Brad Altberger
Title: Vice President
Date: November 4, 1999
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Paper (P) or Electronic(E)
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99.1 Pooling and Servicing Agreement E
EXECUTION COPY
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ASSET SECURITIZATION CORPORATION,
DEPOSITOR
BNY ASSET SOLUTIONS LLC,
SERVICER
LENNAR PARTNERS, INC.,
INITIAL SPECIAL SERVICER
LASALLE BANK NATIONAL ASSOCIATION,
TRUSTEE
and
ABN AMRO BANK N.V.,
FISCAL AGENT
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POOLING AND SERVICING AGREEMENT
Dated as of October 11, 1999
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Commercial Mortgage Asset Trust
Commercial Mortgage Pass-Through Certificates, Series 1999-C2
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<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
Section 1.03 Certain Constructions........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans and Loan REMIC
Interests; Assignment of Mortgage Loan Purchase and
Sale Agreements..............................................
Section 2.02 Acceptance by Custodian and the Trustee......................
Section 2.03 Representations, Warranties and Covenants of the
Depositor....................................................
Section 2.04 Representations, Warranties and Covenants of the
Servicer, Special Servicer and Trustee.......................
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.................................
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions.............
Section 2.07 Year 2000 Readiness..........................................
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Servicer to Act as Servicer; Special Servicer to
Act as Special Servicer; Administration of the
Mortgage Loans...............................................
Section 3.02 Liability of the Servicer and Special Servicer...............
Section 3.03 Collection of Certain Mortgage Loan Payments.................
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..............................................
Section 3.05 Collection Account, Distribution Account,
Upper-Tier Distribution Account, Excess Interest
Distribution Account and Repurchase Price Return of
Premium Distribution Account.................................
Section 3.06 Permitted Withdrawals from the Collection Account............
Section 3.07 Investment of Funds in the Collection Account and
Borrower Accounts............................................
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage..............................
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions............................
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage
Loans........................................................
Section 3.11 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation.................................................
Section 3.13 Reports to the Trustee; Collection Account
Statements...................................................
Section 3.14 Annual Statement as to Compliance............................
Section 3.15 Annual Independent Public Accountants' Servicing
Report.......................................................
Section 3.16 Access to Certain Documentation..............................
Section 3.17 Title and Management of REO Properties.......................
Section 3.18 Sale of Specially Serviced Mortgage Loans and REO
Properties...................................................
Section 3.19 Additional Obligations of the Servicer and Special
Servicer; Inspections........................................
Section 3.20 Authenticating Agent.........................................
Section 3.21 Appointment of Custodians....................................
Section 3.22 Reports to the Securities and Exchange Commission;
Available Information........................................
Section 3.23 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts................................
Section 3.24 Property Advances............................................
Section 3.25 Appointment of Special Servicer..............................
Section 3.26 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping.....................................
Section 3.27 Interest Reserve Account.....................................
Section 3.28 Limitations on and Authorizations of the Servicer
and Special Servicer with Respect to Certain
Mortgage Loans...............................................
Section 3.29 Modification, Waiver, Amendment and Consents.................
Section 3.30 [Reserved]...................................................
Section 3.31 Servicing of Mortgage Loans Subject to Co-Lender
Agreements...................................................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; Reports by
Trustee; Other Information Available to the Holders
and Others...................................................
Section 4.03 Compliance with Withholding Requirements.....................
Section 4.04 REMIC Compliance.............................................
Section 4.05 Imposition of Tax on the Trust Fund..........................
Section 4.06 Remittances; P&I Advances....................................
Section 4.07 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration, Transfer and Exchange of Certificates..........
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.04 Appointment of Paying Agent..................................
Section 5.05 Access to Certificateholders' Names and Addresses............
Section 5.06 Actions of Certificateholders................................
ARTICLE VI
THE DEPOSITOR, THE SERVICER
AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.............................................
Section 6.02 Merger or Consolidation of the Servicer or the
Special Servicer.............................................
Section 6.03 Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and Others....................
Section 6.04 Limitation on Resignation of the Servicer and the
Special Servicer; Termination of the Servicer and
the Special Servicer.........................................
Section 6.05 Rights of the Depositor and the Trustee in Respect
of the Servicer and the Special Servicer.....................
Section 6.06 Servicer or Special Servicer as Owner of a
Certificate..................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Other Remedies of Trustee....................................
Section 7.05 Waiver of Past Events of Default; Termination................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee and Fiscal Agent Not Liable for
Certificates or Mortgage Loans...............................
Section 8.04 Trustee and Fiscal Agent May Own Certificates................
Section 8.05 Payment of Trustee's Fees and Expenses;
Indemnification..............................................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee and Fiscal Agent...........................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Fiscal Agent Appointed; Concerning the Fiscal Agent..........
ARTICLE IX
TERMINATION
Section 9.01 Termination..................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Counterparts.................................................
Section 10.02 Limitation on Rights of Certificateholders...................
Section 10.03 Governing Law................................................
Section 10.04 Notices......................................................
Section 10.05 Severability of Provisions...................................
Section 10.06 Notice to the Depositor and Each Rating Agency...............
Section 10.07 Amendment....................................................
Section 10.08 Confirmation of Intent.......................................
Section 10.09 [Reserved]...................................................
Section 10.10 Intended Third-Party Beneficiaries...........................
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class CS-1 Certificate
Exhibit A-5 Form of Class X Certificate
Exhibit A-6 Form of Class B Certificate
Exhibit A-7 Form of Class C Certificate
Exhibit A-8 Form of Class D Certificate
Exhibit A-9 Form of Class E Certificate
Exhibit A-10 Form of Class F Certificate
Exhibit A-11 Form of Class G Certificate
Exhibit A-12 Form of Class H Certificate
Exhibit A-13 Form of Class J Certificate
Exhibit A-14 Form of Class K Certificate
Exhibit A-15 Form of Class L Certificate
Exhibit A-16 Form of Class M Certificate
Exhibit A-17 Form of Class N Certificate
Exhibit A-18 Form of Class Q-1 Certificate
Exhibit A-19 Form of Class Q-2 Certificate
Exhibit A-20 Form of Class R Certificate
Exhibit A-21 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Form of Custodial Agreement
Exhibit G Securities Legend
Exhibit H-1 CCA Mortgage Loan Purchase and Sale Agreement
Exhibit H-2 NHA Mortgage Loan Purchase and Sale Agreement
Exhibit I [Reserved]
Exhibit J [Reserved]
Exhibit K [Reserved]
Exhibit L [Reserved]
Exhibit M-1 Form of Comparative Financial Status Report
Exhibit M-2 Form of Delinquent Loan Status Report
Exhibit M-3 Form of Historical Loan Modification Report
Exhibit M-4 Form of Historical Loss Estimate Report
Exhibit M-5 Form of REO Status Report
Exhibit M-6 Form of Watch List
Exhibit M-7 Form of Loan Payoff Notification Report
Exhibit M-8 Form of Operating Statement Analysis Report
Exhibit M-9 Form of NOI Adjustment Worksheet
Exhibit M-10 CSSA 100.1 Set-Up Data Record Layout
Exhibit M-11 CSSA 100.1 Periodic Data Record Layout
Exhibit M-12 CSSA 100.1 Property Data File
Exhibit M-13 Premium Loan Report
Exhibit N Form of Certificateholder Confirmation Certificate
Request by Beneficial Holder
<PAGE>
Pooling and Servicing Agreement, dated as of October 11, 1999, among
Asset Securitization Corporation, as Depositor, BNY Asset Solutions LLC, as
Servicer, Lennar Partners, Inc., as Initial Special Servicer, LaSalle Bank
National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have
the meanings specified in Article I hereof.)
The Depositor intends that the Geneva Crossing Loan and the Henry W.
Oliver Loan be held as assets of single-loan REMICs (each, a "Loan REMIC"), that
the related Loan REMIC Regular Interests be held as assets of the Lower-Tier
REMIC (defined below), and that the Loan REMIC Residual Interests be held by the
Trustee on behalf of the Holders of the Class LR Certificates. The Depositor
intends to sell pass-through certificates to be issued hereunder in multiple
Classes which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund consisting primarily of the Mortgage Loans. As
provided herein, the Trustee will elect that the Trust Fund, exclusive of the
Loan REMICs, the Loan REMIC Residual Interests, the Excess Interest, the Excess
Interest Distribution Account, the Repurchase Return of Premium Amount and the
Repurchase Price Return of Premium Distribution Account, (such portion of the
Trust Fund, the "Trust REMICs"), be treated for federal income tax purposes as
two separate real estate mortgage investment conduits (each, a "REMIC" or, in
the alternative, the "Lower-Tier REMIC" and the "Upper-Tier REMIC,"
respectively). The Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class Q-1 and Class Q-2 Certificates represent "regular
interests" in the Upper-Tier REMIC and the Class R Certificates represent the
sole Class of "residual interests" in the Upper-Tier REMIC for purposes of the
REMIC Provisions. The Class LR Certificates represent the sole Class of
"residual interests" in the Lower-Tier REMIC and in each of the Loan REMIC
Residual Interests for purposes of the REMIC Provisions. There are also 18
Classes of uncertificated Lower-Tier Regular Interests issued under this
Agreement (the Class A-1-LA, Class A-1-LB, Class A-2-L, Class A-3-L, Class B-L,
Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class H-L, Class J-L,
Class K-L, Class L-L, Class M-L, Class N-L, Class Q-1-L and Class Q-2-L
Interests), each of which will constitute a regular interest in the Lower-Tier
REMIC. All such Lower-Tier Regular Interests will be held by the Trustee as
assets of the Upper-Tier REMIC. The parties intend (i) that the portions of the
Trust Fund representing the Loan REMIC Residual Interests, the Excess Interest,
the Excess Interest Distribution Account, the Repurchase Return of Premium
Amount, and the Repurchase Price Return of Premium Distribution Account will be
treated as a grantor trust under Subpart E of Part 1 of Subchapter J of the
Code, (ii) that the Class X Certificates represent pro rata undivided beneficial
interests in the portion of the Trust Fund consisting of the right to receive
the Repurchase Return of Premium Amount and the Repurchase Price Return of
Premium Distribution Account and (iii) that the Class A-2, Class A-3, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class Q-1 and Class Q-2 Certificates represent pro rata
undivided beneficial interests in the portion of the Trust Fund consisting of
the Excess Interest and the Excess Interest Distribution Account based upon
their respective initial Certificate Balances.
The following table sets forth the designation and aggregate initial
Certificate Balance (or, with respect to the Class X and Class CS-1
Certificates, Class X and Class CS-1 Notional Balance, respectively) for each
Class of Certificates comprising regular interests in the Upper-Tier REMIC.
INITIAL CERTIFICATE BALANCE
OR CLASS CS-1 AND CLASS X
CLASS NOTIONAL BALANCE INITIAL RATING(3)
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Class A-1 $125,650,000 AAA/Aaa/AAA
Class A-2 $319,833,000 AAA/Aaa/AAA
Class A-3 $108,770,000 AAA/Aaa/AAA
Class CS-1(2) $48,000,000 AAA/Aaa/AAAr
Class X(1) $775,180,294 AAA/Aaa/AAAr
Class B $38,759,000 AA/Aa2/AA
Class C $38,759,000 A/A2/A
Class D $11,627,000 A-/A3/A-
Class E $29,069,000 BBB/Baa2/BBB
Class F $15,503,000 BBB-/Baa3/BBB-
Class G $15,503,000 NR/Ba1/BB+
Class H $15,503,000 NR/Ba2/BB+
Class J $7,751,000 NR/Ba2/BB
Class K $11,627,000 NR/Ba3/NR
Class L $7,751,000 NR/B1/NR
Class M $7,751,000 NR/B2/NR
Class N $5,813,000 NR/B3/NR
Class Q-1 $15,510,294 NR
Class Q-2 $1,000 NR
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(1) The initial Notional Balance of Class X Certificates is equal to the
aggregate initial Certificate Balance of the Sequential Certificates as of the
Cut-off Date.
(2) The initial Notional Balance of the Class CS-1 Certificates is equal to
$48,000,000 (the initial Certificate Balance of the Class A-1 Certificates minus
$77,650,000).
(3) Rating Agencies (Fitch/Moody's/S&P).
Each of the Class R and Class LR Certificates do not have a
Certificate Balance or a notional balance. The Certificate Balance of any Class
of Certificates outstanding at any time represents the maximum amount which
holders thereof are entitled to receive as distributions allocable to principal
from the cash flow on the Mortgage Loans and the other assets in the Trust Fund;
provided, however, that in the event that amounts previously allocated as
Realized Losses to a Class of Certificates in reduction of the Certificate
Balance thereof are subsequently recovered (including without limitation after
the reduction of the Certificate Balance of such Class to zero), such Class may
receive distributions in respect of such recoveries in accordance with the
priorities set forth in Section 4.01.
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $775,180,294.27.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Trustee and the Fiscal Agent
agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Article.
"ACCOR Credit Lease Loan": The Mortgage Loan secured by, among other
things, a Mortgaged Property subject to a credit lease having ACCOR, a French
corporation, as the guarantor, which Mortgage Loan is identified as Loan Number
3 on the Mortgage Loan Schedule.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Administrative Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Collection Period equal to the sum of the
Servicing Fee and the Trustee Fee for such Distribution Date.
"Administrative Fee Rate": A rate equal to 0.0535% per annum, which
is equal to the sum of the Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the
aggregate amount of Advances for which the Servicer, the Trustee or the Fiscal
Agent, as applicable, has not been reimbursed and Servicing Fees, Trustee Fees
and Special Servicing Compensation for which the Servicer, the Trustee or the
Special Servicer, as applicable, has not been timely paid or reimbursed for the
number of days from (and including) the date on which such Advance was made or
such Servicing Fees, Trustee Fees, Special Servicing Compensation were due to
(but excluding) the date of payment or reimbursement of the related Advance or
other such amount, less any amount of interest previously paid on such Advance
or Servicing Fees, Trustee Fees or Special Servicing Compensation; provided,
that, with respect to a P&I Advance, in the event that the related Borrower
makes payment of the amount in respect of which such P&I Advance was made with
interest at the Default Rate, the Advance Interest Amount payable to the
Servicer, the Trustee or the Fiscal Agent shall be paid (i) first from the
amount of Default Interest paid by the Borrower and (ii) to the extent such
amounts are insufficient therefor, from amounts on deposit in the Collection
Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most
recently published in the "Money Rates" section of The Wall Street Journal, New
York edition, on or before the related Record Date), compounded monthly as of
each Servicer Remittance Date.
"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. The Trustee may obtain
and rely on an Officers' Certificate of the Servicer, the Special Servicer or
the Depositor to determine whether any Person is an Affiliate of such party.
"Affiliated Person": Any Person (other than a Rating Agency)
involved in the organization or operation of the Depositor or an affiliate, as
defined in Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in, the
Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property,
the portion of the principal amount of the related Mortgage Loan allocated to
such Mortgaged Property in the applicable Mortgage, Loan Agreement or the
Mortgage Loan Schedule.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 3.14 hereof and an annual report of
an Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
upon which such Mortgage Loan commences accruing interest at the related Revised
Mortgage Rate as indicated on the Mortgage Loan Schedule.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii).
"Applicant": As defined in Section 5.05(a).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the outstanding Stated Principal Balance of
such Mortgage Loan as of the day immediately preceding such Distribution Date
over (b) the excess of (i) 90% of the sum of the appraised values of the related
Mortgaged Properties (or, with respect to each Split Note, the pro rata portion
of the Mortgaged Properties allocable to the related Split Note) as determined
(A) with respect to any Mortgage Loan with an outstanding principal balance
equal to or greater than $2,000,000, by one or more Updated Appraisals (the
costs of which shall be paid by the Servicer as a Property Advance) or (B) with
respect to any Mortgage Loan with an outstanding principal balance less than
$2,000,000, by an appraisal or an Updated Appraisal or an internal valuation
performed by the Special Servicer of the Mortgaged Properties securing such
Mortgage Loan (the costs of which shall be paid by the Servicer as a Property
Advance) over (ii) the sum of (A) to the extent not previously advanced by the
Servicer, the Trustee or the Fiscal Agent, all unpaid interest on such Mortgage
Loan at a per annum rate equal to its Mortgage Rate, (B) all unreimbursed
Property Advances, the principal portion of all unreimbursed P&I Advances (in
each case, without duplication of any amounts in clause (A)), and all unpaid
interest on Advances at the Advance Rate, in respect of such Mortgage Loan and
(C) all currently due and unpaid real estate taxes, ground rents and assessments
and insurance premiums and all other amounts due and unpaid with respect to such
Mortgage Loan (not including any such amounts for which funds are held in escrow
or any such taxes, premiums and other amounts which have been advanced by the
Servicer, the Trustee or the Fiscal Agent, as applicable). Within 60 days after
the Special Servicer receives notice or is otherwise aware of the Appraisal
Reduction Event, the Special Servicer shall obtain an Updated Appraisal. If no
Updated Appraisal has been received within 60 days after the first Distribution
Date as of which an Appraisal Reduction Event has occurred in respect of any
Mortgage Loan, the Appraisal Reduction Amount for such Mortgage Loan shall be
equal to 30% of the Stated Principal Balance of such Mortgage Loan as of the
date of the related Appraisal Reduction Event (the "Special Servicer's Appraisal
Reduction Amount Estimate"). On the first Distribution Date occurring on or
after the delivery of such Updated Appraisal, the Special Servicer shall (i)
adjust the Appraisal Reduction Amount to take into account such appraisal
(regardless of whether the adjusted Appraisal Reduction Amount is higher or
lower than the Special Servicer's Appraisal Reduction Amount Estimate) and (ii)
give written notice to the Servicer setting forth such adjusted Appraisal
Reduction Amount. Each Appraisal Reduction Amount shall also be adjusted to take
into account any subsequent Updated Appraisal and annual letter updates, as of
the date of each such subsequent Updated Appraisal or letter update. The Special
Servicer shall, not later than 15 days after its receipt thereof, deliver copies
of all appraisals and Updated Appraisals to the Servicer.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
first Distribution Date following the earliest of (i) the third anniversary of
the date on which an extension of the Maturity Date of such Mortgage Loan
becomes effective as a result of a modification of such Mortgage Loan by the
Special Servicer pursuant to the terms hereof, which extension does not change
the amount of Monthly Payments on the Mortgage Loan, (ii) 60 days after an
uncured Delinquency (without regard to the application of any grace period)
occurs in respect of such Mortgage Loan, (iii) the date on which a reduction in
the amount of Monthly Payments on such Mortgage Loan, or a change in any other
material economic term of such Mortgage Loan (other than an extension of the
Maturity Date), becomes effective as a result of a modification of such Mortgage
Loan by the Special Servicer, (iv) the date a receiver has been appointed, (v)
the date a Borrower declares bankruptcy or 60 days after the Borrower becomes
the subject of involuntary bankruptcy proceedings and such proceedings are not
dismissed, (vi) the date a Mortgage Loan becomes an REO Mortgage Loan, (vii) 60
days after a default in the payment of a Balloon Payment, or (viii) any other
event which, in the discretion of the Special Servicer and of which the Special
Servicer becomes aware in performing its obligations hereunder, in accordance
with the Servicing Standard, would materially and adversely impair the value of
a Mortgaged Property as security for the related Mortgage Loan. The Servicer
shall notify the Special Servicer within five (5) Business Days of its becoming
aware of the occurrence of any of the foregoing events.
"ARD Loan": A Mortgage Loan that bears interest at its Mortgage Rate
until, or within three months after, its Anticipated Repayment Date, after which
it will bear interest at its Revised Mortgage Rate.
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian, the
Special Servicer or the Servicer shall be responsible for determining whether
any assignment is legally sufficient or in recordable form.
"Assumed Final Distribution Date": With respect to each Class of
Certificates shall be as follows:
Assumed Final
Class Distribution Date
----- -----------------
A-1 December 17, 2007
A-2 January 17, 2010
A-3 December 17, 2012
CS-1 April 17, 2005
X June 17, 2020
B April 17, 2013
C July 17, 2013
D December 17, 2013
E January 17, 2014
F January 17, 2014
G February 17, 2014
H June 17, 2014
J May 17, 2015
K November 17, 2016
L October 17, 2017
M May 17, 2018
N May 17, 2018
Q-1 June 17, 2020
Q-2 June 17, 2020
R N/A
LR N/A
"Assumed Scheduled Payment": With respect to any Mortgage Loan that
is delinquent in respect of its Balloon Payment (including any REO Mortgage Loan
as to which the Balloon Payment would have been past due), an amount equal to
the sum of (a) the principal portion of the Monthly Payment that would have been
due on such Mortgage Loan on the related Due Date (or portion thereof not
received), based on the constant payment required by the related Note or the
original amortization or payment schedule thereof (as calculated with interest
at the related Mortgage Rate) (if any), assuming such Balloon Payment had not
become due, after giving effect to any prior modification, and (b) interest on
the Stated Principal Balance of such Mortgage Loan at the applicable Net
Mortgage Pass-Through Rate.
"Assumption Fees": Any fees (other than processing fees) collected
by the Servicer or Special Servicer in connection with an assumption of a
Mortgage Loan or substitution of a Borrower thereunder permitted to be executed
under the provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the
Trustee pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments or other receipts on account of
principal and interest (including Unscheduled Payments and any Net REO Proceeds
transferred from an REO Account pursuant to Section 3.17(b)) on or in respect of
the Mortgage Loans, received by the Servicer in the Collection Period relating
to such Distribution Date, (ii) all other amounts received by the Servicer in
such Collection Period and required to be placed in the Collection Account by
the Servicer pursuant to Section 3.05 allocable to such Mortgage Loans,
including all P&I Advances made by the Servicer, the Trustee or the Fiscal Agent
in respect of such Distribution Date, (iii) for the Distribution Date occurring
in each March, the Withheld Amounts remitted to the Distribution Account
pursuant to Section 3.27(b), (iv) any late payments of Monthly Payments received
after the end of the Collection Period relating to such Distribution Date but
prior to the close of business on the Business Day prior to the related Servicer
Remittance Date and (v) any Prepayment Interest Excesses up to an amount equal
to any Prepayment Interest Shortfalls for all Mortgage Loans other than Mortgage
Loans that permit prepayments on a date other than a Due Date and other than the
Specially Serviced Mortgage Loans and any Servicer Prepayment Interest
Shortfalls remitted by the Servicer to the Collection Account, but excluding
(without duplication) the following:
(a) amounts permitted to be used to reimburse the
Servicer, the Trustee or the Fiscal Agent, as applicable, for
previously unreimbursed Advances and interest thereon as
described in Section 3.06(ii) and (iii);
(b) the applicable Servicing Fee and Trustee Fee and
any amount representing any other Servicing Compensation,
applicable Special Servicing Compensation or other amounts
withdrawn from the Collection Account pursuant to Section
3.06(iv);
(c) all amounts in the nature of late fees (subject to
Section 3.12 hereof), loan modification fees, extension fees,
loan service transaction fees, demand fees, beneficiary
statement charges, Assumption Fees and similar fees, which the
Servicer or the Special Servicer is entitled to retain as
Servicing Compensation or Special Servicing Compensation,
respectively;
(d) all amounts representing scheduled Monthly
Payments due after the related Due Date;
(e) that portion of Net Liquidation Proceeds or Net
Insurance Proceeds with respect to a Mortgage Loan which
represents any unpaid Servicing Fee, Trustee Fee or Special
Servicing Compensation to which the Servicer, Trustee and the
Special Servicer, respectively, are entitled;
(f) all amounts representing certain expenses
reimbursable or payable to the Servicer, the Special Servicer,
the Trustee or the Fiscal Agent and other amounts permitted to
be retained by the Servicer or withdrawn by the Servicer from
the Collection Account to the extent expressly set forth in
this Agreement (including, without limitation, as provided in
Section 3.06 and including any indemnities provided for
herein), including interest thereon as provided in this
Agreement;
(g) any interest or investment income on funds on
deposit in the Collection Account, the Upper-Tier Distribution
Account, the Distribution Account, the Excess Interest
Distribution Account, the Repurchase Price Return of Premium
Distribution Account, the Interest Reserve Account, or any REO
Account or, to the extent payable to the Trustee or the
Servicer under the terms of the related Mortgage Loan, any
Cash Collateral Account, any Lock-Box Account or any Reserve
Account or, in each case, in Permitted Investments in which
such funds may be invested;
(h) any Withheld Amounts deposited into the Interest
Reserve Account on the related Servicer Remittance Date;
(i) all amounts received with respect to each Mortgage
Loan previously purchased or repurchased pursuant to Sections
2.03(d), 2.03(e), 3.18 or 9.01 during the related Collection
Period and subsequent to the date as of which the amount
required to effect such purchase or repurchase was determined;
(j) the amount reasonably determined by the Trustee to
be necessary to pay any applicable federal, state or local
taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or
any Loan REMIC under the circumstances and to the extent
described in Section 4.05;
(k) Prepayment Premiums and any Repurchase Return of
Premium Amount;
(l) Default Interest;
(m) Excess Interest; and
(n) Prepayment Interest Excesses in excess of the
amount of Prepayment Interest Shortfalls on Mortgage Loans
(other than Mortgage Loans that permit prepayments on a date
other than a Due Date and other than Specially Serviced
Mortgage Loans).
"Balloon Loan": Any Mortgage Loan that requires a payment of
principal on the maturity date in excess of its constant Monthly Payment.
"Base Interest Rate": With respect to each Premium Loan, the rate
set forth on the Mortgage Loan Schedule.
"Balloon Payment": With respect to each Mortgage Loan, the scheduled
payment of principal due on the Maturity Date.
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. Each of the Trustee and the Servicer shall have the
right to require, as a condition to acknowledging the status of any Person as a
Beneficial Owner under this Agreement, that such Person provide evidence at its
expense of its status as a Beneficial Owner hereunder.
"Beneficial Title Exceptions": As defined in Section 3.09(b).
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Bloomfield Purchase Agreement": With respect to certain Mortgage
Loans not originated by CCA, the agreement between CCA and Bloomfield Acceptance
Company, LLC pursuant to which CCA acquired such Mortgage Loans.
"Borrower": With respect to any Mortgage Loan, any obligor or
obligors on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any day
on which banking institutions in the States of Delaware, Texas, Illinois, or New
York are authorized or obligated by law, executive order or governmental decree
to be closed.
"Cash Collateral Account": With respect to any Mortgage Loan that
has a Lock-Box Account, any account or accounts created pursuant to the related
Mortgage, Loan Agreement, Cash Collateral Account Agreement or other loan
document into which the Lock-Box Account monies are swept on a regular basis for
the benefit of the Trustee as successor to the Mortgage Loan Seller. Any Cash
Collateral Account shall be beneficially owned for federal income tax purposes
by the Person who is entitled to receive all reinvestment income or gain thereon
in accordance with the terms and provisions of the related Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon in accordance with the terms of the related Mortgage Loan. The Servicer
shall be permitted to make withdrawals therefrom for deposit into the Collection
Account. To the extent not inconsistent with the terms of the related Mortgage
Loan, each such Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage
Loan, the cash collateral account agreement, if any, between the Originator and
the related Borrower, pursuant to which the related Cash Collateral Account, if
any, may have been established.
"Cash Deposit": An amount equal to all cash payments of principal
and interest received by the Mortgage Loan Seller in respect of the Mortgage
Loans prior to or on the Closing Date that are due after the Cut-off Date, to
the extent transferred to the Trust Fund pursuant to Section 2.01.
"CCA": The Capital Company of America LLC, a Delaware limited
liability company, or its successor. As applicable, "CCA" shall refer to Nomura
Asset Capital Corporation, a Delaware corporation, as predecessor of The Capital
Company of America LLC.
"CCA Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan
Purchase and Sale Agreement dated as of the Cut-off Date, by and between the
Depositor and CCA, a copy of which is attached hereto as Exhibit H-1.
"Cedel": Citibank, N.A., as depositary for Cedel Bank, societe
anonyme, or its successor in such capacity.
"Certificate": Any Class A-1, Class A-2, Class A-3, Class CS-1,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class Q-1, Class Q-2, Class R or Class LR
Certificate issued, authenticated and delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Class CS-1, Class X, Class R and Class LR Certificates) (a) on
or prior to the first Distribution Date, an amount equal to the aggregate
initial Certificate Balance of such Class, as specified in the Preliminary
Statement hereto, (b) as of any date of determination after the first
Distribution Date, the Certificate Balance of such Class on the Distribution
Date immediately prior to such date of determination after distributions
allocable to principal have been made thereon and Realized Losses have been
allocated thereto on such prior Distribution Date; provided that for purposes of
determining Voting Rights, the Certificate Balance of the Class (other than the
Class A-1, Class A-2 and Class A-3 Certificates) shall be deemed to have been
reduced by an amount equal to the amount of Appraisal Reduction Amounts
allocated to the Class pursuant to Section 4.01(h); provided that no such
reduction shall apply to the Voting Rights of the Class CS-1 or Class X
Certificates. With respect to any Class of Lower-Tier Regular Interests, the
Certificate Balance thereof shall, at all times, be equal to (a) in the case of
the Class A-1-LA Interest, the Class A-1 Component 1 Balance, (b) in the case of
the Class A-1-LB Interest, the Class A-1 Component 2 Balance and (c) in the case
of each other Class of Lower-Tier Regular Interest, the Certificate Balance of
the Related Certificates. The Certificate Balance of each Loan REMIC Regular
Interest corresponds to the Stated Principal Balance of the related Mortgage
Loan.
"Certificate Custodian": Initially, LaSalle Bank National
Association; thereafter any other Certificate Custodian acceptable to the
Depository and selected by the Trustee.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the
Certificate Register subject to the following:
(i) except as provided in clause (ii), for the purpose of giving
any consent or taking any action pursuant to this Agreement,
any Certificate beneficially owned by the Depositor, the
Servicer, the Trustee (in its individual capacity), a Manager
or a Borrower or any Person known to a Responsible Officer of
the Certificate Registrar to be an Affiliate of any thereof
shall be deemed not to be outstanding and the Voting Rights to
which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights
necessary to effect any such consent or take any such action
has been obtained;
(ii) for purposes of obtaining the consent of Certificateholders to
an amendment of this Agreement, any Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate
thereof shall be deemed to be outstanding unless such
amendment does not relate to an increase in the compensation
of the Servicer or the Special Servicer or benefits the
Servicer or the Special Servicer (in its capacity as such) or
any Affiliate thereof (other than solely in its capacity as
Certificateholder) in any material respect, in which case such
Certificates shall be deemed not to be outstanding;
(iii) except as provided in clause (iv) below, for purposes of
obtaining the consent of Certificateholders to any action
proposed to be taken by the Special Servicer with respect to a
Specially Serviced Mortgage Loan, any Certificates
beneficially owned by the Servicer or an Affiliate thereof
shall be deemed to be outstanding if the Special Servicer is
not the Servicer or an Affiliate;
(iv) for purposes of Section 3.29 (for purposes of determining who
the Directing Holders are), Certificates owned by the Special
Servicer or an Affiliate shall be deemed to be outstanding;
and
(v) for purposes of providing or distributing any reports,
statements or other information required or permitted to be
provided to a Certificateholder hereunder, a Certificateholder
shall include any Beneficial Owner, or any Person identified
by a Beneficial Owner as a prospective transferee of a
Certificate beneficially owned by such Beneficial Owner, but
only if the Trustee or another party hereto furnishing such
report, statement or information has been provided with the
name of the Beneficial Owner of the related Certificate or the
Person identified as a prospective transferee thereof. For
purposes of the foregoing, the Depositor, the Servicer, the
Special Servicer, the Trustee, the Paying Agent, the Fiscal
Agent or other such Person may rely, without limitation, on a
Depository Participant listing from the Depository or
statements furnished by a Person that on their face appear to
be statements from a Depository Participant to such Person
indicating that such Person beneficially owns Certificates.
"Circuit City Credit Lease Loans": The Mortgage Loans secured by,
among other things, a Mortgaged Property subject to a credit lease having
Circuit City Corporation as the guarantor, which Mortgage Loans are identified
as Loan Number 37, 44, 48, 55, 57 and 58 on the Mortgage Loan Schedule.
"Class": With respect to the Certificates or Lower-Tier Regular
Interests, all of the Certificates or Lower-Tier Regular Interests bearing the
same alphabetical and numerical Class designation.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Component 1 Balance": (a) On or prior to the Distribution
Date in November 1999, an amount equal to $48,000,000, and (b) as of any date of
determination after the first Distribution Date, the balance thereof on the
Distribution Date immediately prior to such date of determination minus (i) all
distributions allocable to principal made on the Class A-1 Certificates on such
prior Distribution Date if such prior Distribution Date occurred prior to the
Crossover Date and a pro rata portion of all distributions allocable to
principal made on the Class A-1 Certificates on such prior Distribution Date if
such prior Distribution Date occurred on or after the Crossover Date and (ii) a
pro rata portion of any Realized Losses allocated to the Class A-1 Certificates
on such prior Distribution Date (in the case of both clauses (i) and (ii), such
pro rata portion to be determined in accordance with the Class A-1 Component 1
Balance and the Class A-1 Component 2 Balance, in each case, prior to
distributions on such prior Distribution Date).
"Class A-1 Component 2 Balance": (a) On or prior to the Distribution
Date in November 1999, an amount equal to $77,650,000, and (b) as of any date of
determination after the first Distribution Date and (i) prior to the reduction
of the Class A-1 Component 1 Balance to zero, the balance thereof on the
Distribution Date immediately prior to such date of determination minus the sum
of (x) a pro rata portion of all distributions allocable to principal made on
the Class A-1 Certificates on such prior Distribution Date if such prior
Distribution Date occurred on or after the Cross-over Date and (y) a pro rata
portion of any Realized Losses allocated to the Class A-1 Certificates on such
prior Distribution Date (in the case of both clauses (x) and (y), such pro rata
portion to be determined in accordance with the Class A-1 Component 1 Balance
and the Class A-1 Component 2 Balance, in each case, prior to distributions on
such prior Distribution Date) and (ii) after the reduction of the Class A-1
Component 1 Balance to zero, the Certificate Balance of the Class A-1
Certificates.
"Class A-1 Pass-Through Rate": A per annum rate equal to 7.285000%.
"Class A-1-LA Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1-LB Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to the lesser
of 7.546000% and the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date.
"Class A-2-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to the lesser
of 7.737000% and the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date.
"Class A-3-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the lesser of
7.800000% and the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date.
"Class B-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the lesser of
7.800000% and the Weighted Average Net Mortgage Pass-Through Rate for the
related Distribution Date.
"Class C-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class CS-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class CS-1 Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 7.2850000%.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the lesser of
7.800000% and the Weighted Average Net Mortgage Pass-Through Rate for the
related Distribution Date.
"Class D-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the lesser of
7.640000% and the Weighted Average Net Mortgage Pass-Through Rate for the
related Distribution Date.
"Class E-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the lesser of
7.640000% and the Weighted Average Net Mortgage Pass-Through Rate for the
related Distribution Date.
"Class F-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class G Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class G-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class H Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class H-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Distribution Amount": With respect to any
Distribution Date and any Class of Certificates (other than the Class R and
Class LR Certificates), an amount equal to the Interest Accrual Amount thereof
for such Distribution Date.
"Class Interest Shortfall": For any Distribution Date for any Class
of Certificates the amount of interest (other than Excess Interest) required to
be distributed to the Holders of such Class pursuant to Section 4.01(b) on all
prior Distribution Dates, if any, minus the amount of interest (other than
Excess Interest) actually distributed to such Holders pursuant to such Section
on all prior Distribution Dates, if any.
"Class J Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class J Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class J-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class K Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class K-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class L Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
"Class L Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class L-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-21 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or notional
balance.
"Class M Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto.
"Class M Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class M-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class N Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto.
"Class N Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class N-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Q-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto.
"Class Q-1 Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class Q-1-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Q-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-19 hereto.
"Class Q-2 Pass-Through Rate": A per annum rate equal to 6.000000%.
"Class Q-2-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-20 hereto. The Class
R Certificates have no Pass-Through Rate, Certificate Balance or notional
balance.
"Class X Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class X Pass Through Rate": With respect to any Distribution Date,
a per annum rate equal to the excess of the Weighted Average Net Mortgage
Pass-Through Rate over the then applicable Weighted Average Pass-Through Rate.
"Closing Date": October 28, 1999.
"Co-Lender": With respect to any Split Loan, the holder of any note
which by the terms of the related Co-Lender Agreement is not entitled to direct
the administration of such Split Loan.
"Co-Lender Agreement": With respect to each Split Note and the
related Other Note or Other Notes, the agreement between the Trustee and the
holder of the related Other Note or Other Notes, regarding the administration of
the Split Loans and the allocation of all amounts received by the holders of the
notes comprising any portion thereof.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, any successor statute thereto, and any temporary or final regulations of
the United States Department of the Treasury promulgated pursuant thereto.
"Collection Account": The trust account or accounts created and
maintained by the Servicer pursuant to Section 3.05(a), which shall be entitled
"BNY Asset Solutions LLC, in trust for LaSalle Bank National Association, as
Trustee, in trust for Holders of Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2, Collection Account," and
which must be an Eligible Account.
"Collection Period": With respect to a Distribution Date and each
Mortgage Loan, the period beginning on the day after the last day of the
preceding Collection Period (or, with respect to the first Collection Period,
October 12, 1999) and ending at the close of business on the 11th day of the
month in which such Distribution Date occurs (or, if such day is not a Business
Day, on the following Business Day).
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit M-1 attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income or net cash
flow, as applicable, and Debt Service Coverage Ratio for each Mortgage Loan
(where the net operating income and Debt Service Coverage Ratio are calculated
using the "MBA/CSSA methodology for Analyzing and Reporting Property Income
Statements") as of the date of the latest financial information available
immediately preceding the preparation of such report for each of the following
periods (to the extent such information is available): (i) the most current
available year-to-date, (ii) the most recent twelve months, (iii) the previous
two full fiscal years, and (iv) the "base year" (representing the original
analysis of information used as of the Cut-off Date); provided, however, that
Debt Service Coverage Ratio shall not be calculated for any Mortgaged Property
for which twelve months of operating information is not available (including for
purposes of clause (i)). For the purposes of the Servicer's production of any
such report that is required to state information for any period prior to the
Cut-off Date, the Servicer may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
Mortgage Loan Sellers.
"Corporate Trust Office": The principal office of the Trustee
located at 135 South LaSalle Street, Suite 1625, Chicago, Illinois 60603,
Attention: Asset-Backed Securities Trust Services Group - CMAT 1999-C2 or the
principal trust office of any successor trustee qualified and appointed pursuant
to Section 8.08.
"Corrected Mortgage Loan": A Mortgage Loan that was, but has ceased
to be, a Specially Serviced Mortgage Loan and that is still outstanding and part
of the Trust Fund.
"Credit Lease Loans": The Mortgage Loans identified on the Mortgage
Loan Schedule as Credit Lease Loans.
"Cross-Indemnified Party": As defined in Section 8.05(c).
"Cross-Indemnifying Party": As defined in Section 8.05(c).
"Crossover Date": means the Distribution Date on which the
Certificate Balance of each Class of Certificates other than the Class A-1,
Class A-2 and Class A-3 Certificates has been reduced to zero.
"CSSA Reports": Data files which contain the information
substantially in the forms of the CSSA standard reporting package attached as
Exhibit M-10, Exhibit M-11 and Exhibit M-12, as the same may be modified from
time to time.
"Custodial Agreement": The Custodial Agreement, if any, from time to
time in effect between the Custodian named therein and the Trustee,
substantially in the form of Exhibit F hereto, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and,
unless the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee or Servicer or any Affiliate of the
Trustee or the Servicer, but may not be the Depositor or any Affiliate thereof.
"Cut-off Date": October 11, 1999, except with respect to the ACCOR
Credit Lease Loan, for which the Cut-off Date is October 1, 1999.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan as
of any date of determination and for any period, the ratio calculated by
dividing the net operating income or net cash flow, as applicable, of the
related Mortgaged Property or Mortgaged Properties, as the case may be, for the
most recently ended one-year period for which data is available from the related
Borrower, before payment of any scheduled payments of principal and interest on
such Mortgage Loan but after funding of required reserves and "normalized" by
the Servicer pursuant to Section 3.13, by the annual debt service required by
such Mortgage Loan. Annual debt service shall be calculated by multiplying the
Monthly Payment in effect on such date of determination for such Mortgage Loan
by 12. For purposes of calculating Debt Service Coverage Ratio for any of the
Split Loans, all pari passu notes secured by the related Mortgaged Property are
included.
"Default Interest": With respect to any Mortgage Loan, interest
accrued on such Mortgage Loan at the excess of (i) the related Default Rate over
(ii) the sum of the related Mortgage Rate and, if applicable, the related Excess
Rate.
"Default Rate": With respect to each Mortgage Loan, the per annum
rate at which interest accrues on such Mortgage Loan following any event of
default on such Mortgage Loan, including a default in the payment of a Monthly
Payment or a Balloon Payment.
"Defeasance Collateral": As defined in Section 3.09(e).
"Delinquency": Any failure of a Borrower to make a scheduled payment
on a Due Date.
"Delinquent Loan Status Report": A report substantially containing
the content described in Exhibit M-2 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, were delinquent 30-59
days, delinquent 60-89 days, delinquent 90 days or more, current but specially
serviced, or were in foreclosure but were not REO Property, without regard to
any notice and cure or other grace periods.
"Denomination": As defined in Section 5.01(a).
"Depositor": Asset Securitization Corporation, a Delaware
corporation, and its successors and assigns.
"Depositor/NSI Transfer": As defined in Section 2.03(j)(xi).
"Depositor/Trustee Transfer": As defined in Section 2.03(j)(xi).
"Depository": The Depository Trust Company or a successor appointed
by the Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Determination Date": The 11th day of each month or, if such day is
not a Business Day, the next succeeding Business Day.
"Directing Holders": As defined in Section 3.29(b).
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof that are not customarily
provided to tenants in connection with the rental of space for occupancy only
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers in the ordinary course of a trade or business,
or any use of such REO Property in a trade or business conducted by the Trust
Fund, or the performance of any construction work on the REO Property (unless
such construction was at least 10% completed when default on the related
Mortgage Loan became imminent); provided, however, that the Special Servicer, on
behalf of the Trust Fund, shall not be considered to Directly Operate an REO
Property solely because the Special Servicer, on behalf of the Trust Fund,
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property or takes other actions consistent
with Treasury Regulations Section 1.856-4(b)(5)(ii) of the regulations of the
United States Department of the Treasury.
"Discount Rate": With respect to any Class of Certificates, the rate
determined by the Trustee, in its good faith, to be the yield (compounded
monthly) on the U.S. Treasury issue (primary issue) with a maturity date closest
to the Assumed Final Distribution Date of such Class.
"Discount Rate Fraction": As defined in Section 4.01(c)(i)(I).
"Disqualified Non-U.S. Person": With respect to a Residual Interest,
any Non-U.S. Person or agent thereof other than (i) a Non-U.S. Person that holds
the Residual Interest in connection with the conduct of a trade or business
within the United States and has furnished the transferor and the Certificate
Registrar with an effective IRS Form 4224 (or successor form) or (ii) a Non-U.S.
Person that has delivered to both the transferor and the Certificate Registrar
an opinion of a nationally recognized tax counsel to the effect that the
transfer of the Residual Interest to it is in accordance with the requirements
of the Code and the regulations promulgated thereunder and that such transfer of
the Residual Interest will not be disregarded for federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State
or any political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax, except for FHLMC, and a majority of its board of directors is not selected
by any such governmental unit), (b) a foreign government, International
Organization or agency or instrumentality of either of the foregoing, (c) an
organization (except certain farmers' cooperatives described in Code Section
521) that is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Code Section 511 on unrelated business taxable income) on any excess
inclusions (as defined in Code Section 860E(c)(1)) with respect to the Residual
Interests, (d) rural electric and telephone cooperatives described in Code
Section 1381(a)(2), or (e) any other Person so designated by the Certificate
Registrar based upon an Opinion of Counsel to the effect that any Transfer to
such Person may cause the Upper-Tier REMIC, Lower-Tier REMIC or any Loan REMIC
to be subject to tax or to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained as a separate trust account or accounts by the Trustee pursuant to
Section 3.05(b), which shall be entitled "LaSalle Bank National Association, as
Trustee, in trust for Holders of Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2, Distribution Account" and
which must be an Eligible Account.
"Distribution Date": The 17th day of each month; provided, that if
the 17th day of any month is not a Business Day, the Distribution Date will be
the following Business Day. The first Distribution Date will be November 17,
1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": Except with respect to the ACCOR Credit Lease Loan, with
respect to any Distribution Date and/or any Mortgage Loan, as the case may be,
the 11th day of the month in which such Distribution Date occurs (or in the case
of certain of the Mortgage Loans, if the 11th day is not a business day, as
defined in the related Loan Documents, either the next business day or the first
preceding business day). With respect to the ACCOR Credit Lease Loan, the Due
Date is the 1st day of the month (or, if the 1st day is not a business day, as
defined in the related Loan Documents, the following business day).
"Early Termination Notice Date": Any date as of which the aggregate
Stated Principal Balance of the Mortgage Loans is less than 1.0% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Eligible Account": Any of (i) (A) an account or accounts maintained
with a federal or state chartered depository institution or trust company the
short term unsecured debt obligations or commercial paper of which are rated at
least "F-1+" by Fitch, "P-1" by Moody's and "A-1" by S&P in the case of accounts
in which funds are held for 30 days or less or, in the case of accounts in which
funds are held for more than 30 days, the long term unsecured debt obligations
of which are rated at least "AA-" by S&P (or if such depository institution or
trust company does not have a rating of "AA-" by S&P for its long term unsecured
debt obligations, then a rating of "A-1" for its short-term unsecured debt
obligations or commercial paper and a rating of at least "A-" for its long-term
unsecured debt obligations), "AA" by Fitch and "Aa3" by Moody's or (B) as to
which the Trustee has received written confirmation from each of the Rating
Agencies that holding funds in such account would not cause any Rating Agency to
qualify, withdraw or downgrade any of its ratings on the Certificates; (ii) a
segregated trust account or accounts 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 substantially similar to 12 C.F.R. Section
9.10(b), having in either case a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal and state
authority; or (iii) any other account that, as evidenced by a written
confirmation from each Rating Agency would not, in and of itself, cause a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates, which may be an account maintained with the Trustee. Eligible
Accounts may bear interest.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) except in the case of a Class R or
Class LR Certificate, an Institutional Accredited Investor.
"Environmental Report": The environmental audit report or reports
with respect to each Mortgaged Property delivered to the Mortgage Loan Seller in
connection with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account
may be a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Servicer
pursuant to the related Mortgage, Cash Collateral Agreement, Lock-Box Agreement
or Loan Agreement for the account of such Borrower for application toward the
payment of taxes, insurance premiums, assessments and similar items in respect
of the related Mortgaged Property.
"Euroclear": Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Servicer Event of Default or Special Servicer
Event of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Mortgage Rate,
interest accrued on such Mortgage Loan allocable to the Excess Rate. The Excess
Interest shall not be an asset of the Loan REMICs or the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate trust account or accounts by the
Trustee pursuant to Section 3.05(d), which shall be entitled "LaSalle Bank
National Association, as Trustee, in trust for Holders of Commercial Mortgage
Asset Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2,
Excess Interest Distribution Account" and which must be an Eligible Account. The
Excess Interest Distribution Account shall not be an asset of the Loan REMICs or
the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Mortgage Rate, the excess of
(i) the applicable Revised Mortgage Rate over (ii) the applicable Mortgage Rate,
each as set forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as it may be
amended from time to time.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Loss Estimate Report, Historical Loan Modification Report, REO Status Report,
Operating Statement Analysis, NOI Adjustment Worksheet, Watch List, Loan Payoff
Notification Report, Premium Loan Report or report pursuant to Section 4.02(b)
or Annual Compliance Report to be filed with the Commission, under cover of the
related form required by the Exchange Act.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Mortgage Loan, REO Mortgage Loan or Mortgage Loan subject to repurchase
by the Depositor or the Mortgage Loan Seller pursuant to Sections 2.03(d) or
2.03(e), the recovery of all Insurance Proceeds, Liquidation Proceeds, the
related Repurchase Price and other payments or recoveries (including proceeds of
the final sale of any REO Property) which the Servicer (or in the case of a
Specially Serviced Mortgage Loan, the Special Servicer), in its reasonable
judgment as evidenced by a certificate of a Servicing Officer delivered to the
Trustee, the Special Servicer and the Custodian (and the Servicer, if the
Certificate is from the Special Servicer), expects to be finally recoverable.
The Servicer or the Special Servicer, as applicable, shall maintain records,
prepared by a Servicing Officer, of each Final Recovery Determination made by it
until the earlier of (i) its termination as Servicer hereunder and the transfer
of such records to a successor servicer and (ii) five years following the
termination of the Trust Fund.
"Financial Market Publisher": Bloomberg, L.P., Intex Solutions,
Inc., Charter Research Corporation, Wall Street Analytics, Inc., and the Trepp
Group.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation in its capacity as fiscal agent of the Trustee, or its successor in
interest, or any successor fiscal agent appointed as herein provided.
"Fitch": Fitch IBCA, Inc. or its successor in interest.
"Fixed Voting Rights Percentage": As defined in the definition of
"Voting Rights."
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or
such successor form as the Commission may specify from time to time.
"Geneva Crossing Loan": The Mortgage Loan identified as Loan No. 19
on the Mortgage Loan Schedule.
"Geneva Crossing REMIC": The REMIC constituted by the Geneva
Crossing Loan.
"Geneva Crossing REMIC Declaration": That certain REMIC Declaration
dated as of July 15, 1999 with respect to the Geneva Crossing Loan.
"Geneva Crossing REMIC Regular Interest": The uncertificated
"regular interest," within the meaning of Code Section 860G(a)(1), in the Geneva
Crossing REMIC issued pursuant to the Geneva Crossing REMIC Declaration.
"Geneva Crossing REMIC Residual Interest": The uncertificated
"residual interest," within the meaning of Code Section 860G(a)(2), in the
Geneva Crossing REMIC issued pursuant to the Geneva Crossing REMIC Declaration.
"Global Certificates": The Class A-1, Class A-2, Class A-3, Class
CS-1, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N and Class Q-1 Certificates.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("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.
"Henry W. Oliver Loan": The Mortgage Loan identified as Loan No. 6
on the Mortgage Loan Schedule.
"Henry W. Oliver REMIC": The REMIC constituted by the Henry W.
Oliver Loan.
"Henry W. Oliver REMIC Declaration": That certain REMIC Declaration
dated as of July 15, 1999 with respect to the Henry W. Oliver Loan.
"Henry W. Oliver REMIC Regular Interest": The uncertificated
"regular interest," within the meaning of Code Section 860G(a)(1), in the Henry
W. Oliver REMIC issued pursuant to the Henry W. Oliver REMIC Declaration.
"Henry W. Oliver REMIC Residual Interest": The uncertificated
"residual interest," within the meaning of Code Section 860G(a)(2), in the Henry
W. Oliver REMIC issued pursuant to the Henry W. Oliver REMIC Declaration.
"Historical Loan Modification Report": A report substantially
containing the content described in Exhibit M-3 attached hereto, setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Due 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 containing
the content described in Exhibit M-4 attached hereto, setting forth, among other
things, as of the close of business on the Due Date immediately preceding the
preparation of such report, (i) the aggregate amount of Liquidation Proceeds and
Liquidation Expenses, both for the related Collection Period and historically,
and (ii) the amount of Realized Losses occurring during the related Collection
Period, set forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest or Loan REMIC Regular Interest, the
Trustee; and with respect to any Loan REMIC Residual Interest, the Trustee on
behalf of the Class LR Certificateholders.
"Independent": When used with respect to any specified Person, any
such Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Servicer,
the Special Servicer, any Borrower or Manager or any Affiliate thereof, and (ii)
is not connected with any such Person thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Servicer or the Special Servicer shall be
considered to be an Independent Contractor under the definition in this clause
(i) unless an Opinion of Counsel (at the expense of the party seeking to be
deemed an Independent Contractor) addressed to the Servicer and the Trustee has
been delivered to the Trustee to that effect) or (ii) any other Person
(including the Servicer and the Special Servicer) if the Servicer, on behalf of
itself and the Trustee, has received an Opinion of Counsel (at the expense of
the party seeking to be deemed an Independent Contractor) to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code) or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully
registered physical form without interest coupons.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act, or an entity in which all the equity owners meet such
requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance policy relating to a Mortgage Loan
(including any amounts paid by the Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and
any Class of Certificates (other than the Class CS-1, Class X, Class R and Class
LR Certificates), an amount equal to interest for the related Interest Accrual
Period at the Pass-Through Rate for such Class for such Distribution Date on the
related Certificate Balance outstanding during such Interest Accrual Period
(provided, that for interest accrual purposes any distributions in reduction of
Certificate Balance or reductions in Certificate Balance as a result of
allocations of Realized Losses on the Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been made on the first day of such
Interest Accrual Period). The "Interest Accrual Amount" with respect to any
Distribution Date and the Class CS-1 Certificates is equal to interest for the
related Interest Accrual Period at the Pass-Through Rate for such Class for such
Interest Accrual Period on the Notional Balance of such Class (provided, that
any reductions in the Notional Balance of such Class as a result of
distributions in reduction of the Certificate Balance of the Class A-1
Certificates or allocations of Realized Losses to the Certificate Balance of the
Class A-1 Certificates on the Distribution Date occurring in an Interest Accrual
Period, shall be deemed to have occurred on the first day of such Interest
Accrual Period). The "Interest Accrual Amount" with respect to any Distribution
Date and the Class X Certificates shall be equal to interest for the related
Interest Accrual Period at the Pass-Through Rate for such Class for such
Distribution Date on the Notional Balance of such Class outstanding during such
Interest Accrual Period (provided, that any reductions in the Notional Balance
of such Class as a result of principal distributions on Mortgage Loans or Loan
REMIC Regular Interests or Realized Losses with respect to Mortgage Loans or
Loan REMIC Regular Interests distributable or allocable on the Lower-Tier
Regular Interests on the Distribution Date occurring in an Interest Accrual
Period shall be deemed to have occurred on the first day of such Interest
Accrual Period). Calculations of interest due in respect of the Certificates
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution Date,
the period which commences on the eleventh day of the month preceding the month
in which such Distribution Date occurs and ends on the tenth day of the month in
which such Distribution Date occurs. Interest for each Interest Accrual Period
is calculated based on a 360-day year consisting of twelve 30-day months.
"Interest Reserve Account": The trust account maintained by the
Trustee pursuant to Section 3.27, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for Holders of Commercial Mortgage Asset
Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2, Interest
Reserve Account" and which must be an Eligible Account.
"Interest Shortfall": With respect to any Distribution Date for any
Class of Offered Certificates, any shortfall in the amount of interest required
to be distributed to such Class on such Distribution Date.
"Interested Person": As of any date of determination, the Depositor,
the Servicer, Special Servicer, the Trustee, the Fiscal Agent, any Borrower, any
manager of a Mortgaged Property, any Independent Contractor engaged by the
Special Servicer pursuant to Section 3.17, or any Person known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service, or any successor thereto.
"Lead Lender": With respect to each Split Loan, the holder of the
note which by the terms of the related Co-Lender Agreement is entitled to direct
the administration of the Split Loan and has the sole authority to exercise and
enforce the lender's rights under the Loan Documents relating to such Split
Loan.
"Liquidation Expenses": Expenses incurred by the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in connection with the
liquidation of any Mortgage Loan or property acquired in respect thereof
(including, without limitation, legal fees and expenses, committee or referee
fees, and, if applicable, brokerage commissions, and conveyance taxes) and any
Property Protection Expenses incurred with respect to such Mortgage Loan or such
property including interest thereon at the Advance Rate not previously
reimbursed from collections or other proceeds therefrom.
"Liquidation Fee": As defined in Section 3.12(b)(ii).
"Liquidation Proceeds": The amount (other than Insurance Proceeds)
received in connection with (i) the taking of a Mortgaged Property (or portion
thereof) by exercise of the power of eminent domain or condemnation, (ii) the
liquidation of a Specially Serviced Mortgage Loan through a trustee's sale,
foreclosure sale or otherwise or (iii) a sale of a Mortgage Loan or an REO
Property in accordance with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan, the loan
agreement, if any, between the Originator and the Borrower, pursuant to which
such Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the documents
executed or delivered in connection with the origination of such Mortgage Loan
or subsequently added to the related Mortgage File.
"Loan Number": With respect to any Mortgage Loan, the loan number by
which such Mortgage Loan was identified on the books and records of the
Depositor or any sub-servicer for the Depositor, as set forth in the Mortgage
Loan Schedule.
"Loan Payoff Notification Report": A report substantially in the
form of Exhibit M-7 attached hereto, setting forth, among other things, any
Mortgage Loan for which written notice of payoff has been received by the
Servicer as of the Determination Date immediately preceding the preparation of
such report.
"Loan REMIC": Each of the Geneva Crossing REMIC and the Henry W.
Oliver REMIC.
"Loan REMIC Declaration": Each of the Geneva Crossing REMIC
Declaration and the Henry W. Oliver REMIC Declaration.
"Loan REMIC Interests": The Loan REMIC Regular Interest and the Loan
REMIC Residual Interests.
"Loan REMIC Regular Interest": Each of the Geneva Crossing REMIC
Regular Interest and the Henry W. Oliver REMIC Regular Interest.
"Loan REMIC Residual Interest": Each of the Geneva Crossing Residual
Interest and the Henry W. Oliver REMIC Residual Interest.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to any documents relating to a Mortgage
Loan to receive revenues therefrom. Any Lock-Box Account shall be beneficially
owned for federal income tax purposes by the Person who is entitled to receive
the reinvestment income or gain thereon in accordance with the terms and
provisions of the related Mortgage Loan and Section 3.07, which Person shall be
taxed on all reinvestment income or gain thereon. The Servicer shall be
permitted to make withdrawals therefrom for deposit into the related Cash
Collateral Accounts in accordance with the terms of the related Mortgage Loan.
"Lock-Box Agreement": With respect to any Mortgage Loan, the
lock-box agreement, if any, between the Originator or the Mortgage Loan Seller
and the Borrower, pursuant to which the related Lock-Box Account, if any, may
have been established.
"Lock-out Period": With respect to any Mortgage Loan, the period of
time specified in the related Loan Documents during which voluntary prepayments
by the related Borrower are prohibited.
"Lower-Tier Regular Interests": The Class A-1-LA, Class A-1-LB,
Class A-2-L, Class A-3-L, Class B-L, Class C-L, Class D-L, Class E-L, Class F-L,
Class G-L, Class H-L, Class J-L, Class K-L, Class L-L, Class M-L, Class N-L,
Class Q-1-L and Class Q-2-L Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Excess Interest and Repurchase
Return of Premium Amounts), collections thereon, any REO Property acquired in
respect thereof and amounts held from time to time in the Collection Account and
the Distribution Account; provided, that the Geneva Crossing Loan and the Henry
W. Oliver Loan (exclusive of Excess Interest, if any) collections thereon and
any related REO Property acquired in respect thereof shall be held as assets of
the related Loan REMIC, and the related Loan REMIC Regular Interests and
collections thereon shall be held as assets of the Lower-Tier REMIC.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan, the
Management Agreement, if any, by and between the Manager and the related
Borrower, or any successor Management Agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property manager
for the related Mortgaged Properties.
"Maturity Date": With respect to each Mortgage Loan, the Maturity
Date as set forth on the Mortgage Loan Schedule.
"Monthly Payment": With respect to any Mortgage Loan (other than any
REO Mortgage Loan) and any Due Date, the scheduled monthly payment of principal,
if any, and interest at the Mortgage Rate, excluding any Balloon Payment (but
including any Assumed Scheduled Payment), which is payable by the related
Borrower on such Due Date under the related Note (as such terms may be changed
or modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or by reason of a modification, waiver or amendment granted or
agreed to by the Special Servicer pursuant to Section 3.29). With respect to an
REO Mortgage Loan, the monthly payment that would otherwise have been payable on
the related Due Date had the related Note not been discharged, determined as set
forth in the preceding sentence and on the assumption that all other amounts, if
any, due thereunder are paid when due.
"Moody's": Moody's Investors Service, Inc., or its successor in
interest.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage
documents listed in Section 2.01(i) through (xviii) pertaining to such
particular Mortgage Loan and any additional documents required to be added to
such Mortgage File pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund, the mortgage loans originally so transferred, assigned and held being
identified on the Mortgage Loan Schedule as of the Cut-off Date. Such term shall
include any REO Mortgage Loan, Split Loan, Specially Serviced Mortgage Loan or
any Mortgage Loan that has been defeased in whole or in part. Nothing herein
shall be deemed to override the provisions of the Co-Lender Agreements.
"Mortgage Loan Purchase and Sale Agreement": Either of the CCA
Mortgage Loan Purchase and Sale Agreement or the NHA Mortgage Loan Purchase and
Sale Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the
Trust Fund as of the Closing Date being attached hereto as Exhibit B, which list
shall set forth the following information with respect to each Mortgage Loan:
(a) the Loan Number;
(b) the Borrower and property names, city and state
where each related Mortgaged Property is located;
(c) the annual debt service;
(d) the original Mortgage Rate;
(e) the Net Mortgage Pass-Through Rate;
(f) the Revised Mortgage Rate, if applicable;
(g) the Maturity Date and, in the case of an ARD Loan,
the related Anticipated Repayment Date;
(h) the Stated Principal Balance as of the Cut-off
Date and, as applicable, the allocation of such balance to
each related Mortgaged Property;
(i) the Originator of such Mortgage Loan;
(j) whether the Mortgage Loan is an Actual/360
Mortgage Loan;
(k) amount of Monthly Payment;
(l) original and remaining term to maturity;
(m) for Balloon Loans, the balloon amount;
(n) for Balloon Loans, remaining amortization term;
(o) whether the Mortgage Loan is secured by a ground
lease;
(p) for Credit Lease Loans, the lease payment;
(q) for Credit Lease Loans, the expiration date of the
credit tenant lease;
(r) whether the loan is a Credit Lease Loan, and if
so, the related tenant or guarantor;
(s) whether there exists a Residual Value Policy for
the Mortgage Loan;
(t) Debt Service Coverage Ratio and loan to value
ratio;
(u) whether the loan is cross-defaulted;
(v) whether the loan is a Split Loan;
(w) whether the Mortgage Loan has defeasance
provisions;
(x) whether the Mortgage Loan is secured by a letter
of credit;
(y) whether the Mortgage Loan has a lock box;
(z) original principal balance;
(aa) the Due Date of the Mortgage Loan;
(bb) property type;
(cc) whether the loan is a Premium Loan, and if so, the
amount of the Premium;
(dd) the Base Interest Rate of each Premium Loan;
(ee) whether the Mortgage Loan requires the Borrower to
pay Rating Agency fees in connection with such Mortgage Loan;
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (c) and (g) above for all of the Mortgage Loans. The
Mortgage Loan Schedule may also set forth, for selected Mortgage Loans, the net
operating income or debt service coverage ratio. The Mortgage Loan Schedule may
be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Sellers": CCA and NHA.
"Mortgage Pass-Through Rate": With respect to any Mortgage Loan that
provides for calculations of interest based on twelve months of 30 days each for
any Mortgage Interest Accrual Period, the Mortgage Rate thereof. With respect to
any Mortgage Loan that provides for interest based on a 360-day year and the
actual number of days elapsed (each, an "Actual/360 Loan") for any Interest
Accrual Period, (a) for any accrual period for a Mortgage Loan relating to an
Interest Accrual Period beginning in any January, February, April, June,
September and November and any December occurring in a year immediately
preceding any year that is not a leap year, the Mortgage Rate thereof or (b) for
any mortgage loan accrual period relating to any Interest Accrual Period
beginning in any March, May, July, August and October and any December occurring
in a year immediately preceding a year that is a leap year, the Mortgage Rate
thereof multiplied by a fraction whose numerator is 31 and whose denominator is
30. With respect to either Loan REMIC Regular Interest, the Mortgage
Pass-Through Rate as determined under the preceding sentence, as applicable, for
the related Mortgage Loan.
"Mortgage Rate": With respect to each Mortgage Loan and any
one-month accrual period ending immediately prior to the most recent related Due
Date, the annual rate, not including any Excess Rate, at which interest accrues
on such Mortgage Loan during such one-month accrual period (in the absence of a
default), as set forth on the Mortgage Loan Schedule. The Mortgage Rate for
purposes of calculating the Mortgage Pass-Through Rate of any Mortgage Loan (or
of the related Loan REMIC Regular Interest in the case of the Geneva Crossing
Loan and the Henry W. Oliver Loan) shall be the Mortgage Rate of such Mortgage
Loan without taking into account any reduction in the interest rate by a
bankruptcy court pursuant to a plan of reorganization or pursuant to any of its
equitable powers or a reduction in interest or principal due to a modification
pursuant to Section 3.29 hereof.
"Mortgaged Property": The underlying property securing a Mortgage
Loan, including any REO Property, consisting of a fee simple estate, and, with
respect to certain Mortgage Loans, a leasehold estate or both a leasehold estate
and a fee simple estate, or a leasehold estate in a portion of the property and
a fee simple estate in the remainder, in a parcel of land improved by a
commercial property, together with any personal property, fixtures, leases and
other property or rights pertaining thereto.
"Net Base Rate": As defined in Section 4.01(c)(i)(II).
"Net Default Interest": For any Distribution Date, an amount equal
to (i) the amount of the aggregate Default Interest received during the
preceding Collection Period, minus (ii) all portions collected and applied to
the Advance Rate Interest out of general collections on the Mortgage Loans
pursuant to clause (iii) of Section 3.06.
"Net Income": With respect to any REO Property, all income received
in connection with such REO Property, less any operating expenses, including,
but not limited to, utilities, real estate taxes, property management fees,
insurance premiums, leasing commission fees, expenses for maintenance and
repairs and any other capital expenses directly related to such REO Property and
permitted to be incurred under this Agreement.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the express requirements
of the Mortgage or Note or other documents included in the Mortgage File or in
accordance with the Servicing Standard.
"Net Liquidation Proceeds": The Liquidation Proceeds received with
respect to any Mortgage Loan net of the amount of (i) Liquidation Expenses
incurred with respect thereto, (ii) with respect to proceeds received in
connection with the taking of a Mortgaged Property (or portion thereof) by the
power of eminent domain in condemnation, amounts required to be applied to the
restoration or repair of the related Mortgaged Property, and (iii) any funds
required by applicable law to be remitted to the applicable Borrower.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage Loan
(other than the Geneva Crossing Loan and the Henry W. Oliver Loan), the Geneva
Crossing Loan REMIC Regular Interest and the Henry W. Oliver Loan REMIC Regular
Interest and any Distribution Date, the per annum rate equal to the Mortgage
Pass-Through Rate for such Mortgage Loan or Loan REMIC Regular Interest for the
related Interest Accrual Period minus the Administrative Fee Rate.
"Net REO Proceeds": With respect to each REO Property, REO Proceeds
with respect to such REO Property net of any insurance premiums, taxes,
assessments and other costs and expenses permitted to be paid therefrom pursuant
to Section 3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the
Trust Fund, including any lease renewed or extended on behalf of the Trust Fund
if the Trust Fund has the right to renegotiate the terms of such lease.
"NHA": Nomura Holding America Inc., a Delaware corporation.
"NHA Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan
Purchase and Sale Agreement dated as of the Cut-off Date, by and between the
Depositor and NHA, a copy of which is attached hereto as Exhibit H-2.
"NOI Adjustment Worksheet": A report prepared by the Servicer or the
Special Servicer, as the case may be, substantially containing the content
described in Exhibit M-9 attached hereto, presenting the computations made in
accordance with the methodology described in said Exhibit M-9 to "normalize" the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement, sent to the Trustee with each annual
operating statement for a Mortgaged Property pursuant to Section 3.13(d).
"Non-U.S. Person": A person that is not a U.S. Person.
"Nonrecoverable Advance": Any portion of an Advance proposed to be
made or previously made which has not been previously reimbursed to the
Servicer, the Trustee or the Fiscal Agent, as applicable, and which, in the good
faith business judgment of the Servicer, the Special Servicer, the Trustee or
the Fiscal Agent, as applicable, will not or, in the case of a proposed Advance,
would not be ultimately recoverable by the party that made or would make such
Advance from late payments, Insurance Proceeds, Liquidation Proceeds and other
collections on or in respect of the related Mortgage Loan and, if applicable,
from the Lead Lender with respect to an Other Note. The judgment or
determination by the Servicer, the Special Servicer, the Trustee or the Fiscal
Agent that it has made a Nonrecoverable Advance or that any proposed Advance, if
made, would constitute a Nonrecoverable Advance shall be evidenced in the case
of the Servicer or Special Servicer, by a certificate of a Servicing Officer
delivered to the Trustee, the Fiscal Agent, the Depositor, and in the case of
the Special Servicer, to the Servicer, and in the case of the Servicer, to the
Special Servicer and the Depositor and in the case of the Trustee or the Fiscal
Agent, by a certificate of a Responsible Officer of the Trustee or Fiscal Agent,
as applicable, delivered to the Depositor (and the Trustee and Special Servicer
if the certificate is from the Fiscal Agent), which in each case sets forth such
judgment or determination and the procedures and considerations of the Servicer,
Trustee or Fiscal Agent, as applicable, forming the basis of such determination
(including, but not limited to, information selected by the Person making such
judgment or determination in its good faith discretion, such as related income
and expense statements, rent rolls, occupancy status, property inspections,
Servicer, Trustee or Fiscal Agent inquiries, third party engineering and
environmental reports, and, in any event, an appraisal conducted by an
Independent MAI appraiser or any Updated Appraisal thereof conducted within the
past 12 months; copies of such documents to be included with the certificate of
a Servicing Officer or a Responsible Officer). The cost of any such appraisal or
Updated Appraisal obtained for making the determination of a Nonrecoverable
Advance shall be reimbursable as a Property Protection Expense. Any
determination of non-recoverability made by the Servicer may be made without
regard to any value determination made by the Special Servicer other than
pursuant to an Updated Appraisal. Notwithstanding the above, the Trustee and the
Fiscal Agent shall be entitled to rely upon any determination by the Servicer or
the Special Servicer that any Advance previously made is a Nonrecoverable
Advance or that any proposed Advance would, if made, constitute a Nonrecoverable
Advance (and with respect to a proposed P&I Advance, the Trustee and the Fiscal
Agent, as applicable, shall rely on the Servicer's determination that the
Advance would be a Nonrecoverable Advance if the Trustee or Fiscal Agent, as
applicable, determines that it does not have sufficient time to make such a
determination); provided, however, that the Special Servicer shall not be liable
to the Trust Fund or the Servicer if such Advance shall be non-recoverable.
"Note": With respect to any Mortgage Loan as of any date of
determination, the note or other evidence of indebtedness and/or agreements
evidencing the indebtedness of a Borrower under such Mortgage Loan, including
any amendments or modifications, or any renewal or substitution notes, as of
such date.
"Notice of Termination": Any of the notices given to the Trustee by
the Servicer, Special Servicer, Depositor or any Holder of a Class LR
Certificate pursuant to Section 9.01(c).
"Notional Amount" or "Notional Balance": With respect to each of the
Class X and Class CS-1 Certificates, (a) on or prior to the Distribution Date
occurring in November 1999, a notional principal amount equal to the aggregate
initial Notional Balance of such Class, as specified in the Preliminary
Statement hereto, and (b)(i) in the case of the Class CS-1 Certificates, as of
any date of determination after the Distribution Date occurring in November
1999, an amount equal to the Class A-1 Component 1 Balance, in each case on the
Distribution Date immediately prior to such date of determination, after
distributions of principal on the Class A-1 Certificates and allocations of
Realized Losses on such Class on such prior Distribution Date and (ii) in the
case of the Class X Certificates, as of any Distribution Date after November
1999 a notional principal amount equal to the aggregate of the Certificate
Balances of the Sequential Certificates as of the first day of the related
Interest Accrual Period.
"NSI": As defined in Section 2.03(j)(ii).
"NSI Certificates": As defined in Section 2.03(j)(xi).
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President
(however denominated), the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer or
employee designated as a Servicing Officer customarily performing functions
similar to those performed by any of the above designated officers and also with
respect to a particular matter, any other officer or employee designated as a
Servicing Officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject, or an authorized
officer of the Depositor, and delivered to the Depositor, the Trustee, the
Servicer or the Special Servicer, as the case may be.
"Operating Statement Analysis": With respect to each Mortgage Loan
and REO Property, a report substantially containing the content described in
Exhibit M-8 attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Servicer
as the case may be, acceptable to the Trustee, except that any opinion of
counsel relating to (a) qualification of the Upper-Tier REMIC, Lower-Tier REMIC
or any Loan REMIC as a REMIC or the imposition of tax under the REMIC Provisions
on any income or property of any of such REMICs, (b) qualification of the
portion of the Trust Fund other than the Trust REMICs and the Loan REMICs as a
grantor trust under the Code, (c) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor") or (d) a
resignation of the Servicer pursuant to Section 6.04, must be an opinion of
counsel who is Independent of the Servicer.
"Originator": Any of (i) CCA, (ii) Nomura Asset Capital Corporation
or (iii) Bloomfield Acceptance Company, LLC.
"Other Mortgage Loan": Each mortgage loan related to an Other Note.
"Other Note": With respect to each Split Loan, each note that is not
a part of the Trust Fund.
"Other Servicer": With respect to each Other Note, the servicer of
such Other Note.
"Other Special Servicer": With respect to each Other Note, the
special servicer of such Other Note.
"Other Trust Fund": As defined in Section 2.01(b).
"P&I Advance": As to any Mortgage Loan, any advance made by the
Servicer, the Trustee or the Fiscal Agent pursuant to Section 4.06. Each
reference to the payment or reimbursement of a P&I Advance shall be deemed to
include, whether or not specifically referred to and without duplication,
payment or reimbursement of any unpaid interest thereon at the Advance Rate from
and including the date of the making of such P&I Advance through and including
the date of payment or reimbursement.
"Pass-Through Rate": With respect to each Class of Certificates
(other than the Class R and Class LR Certificates), the Pass-Through Rate for
such Class as set forth below:
Class Pass-Through Rate
----- -----------------
Class A-1 Class A-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class A-3 Class A-3 Pass-Through Rate
Class CS-1 Class CS-1 Pass-Through Rate
Class X Class X Pass-Through Rate
Class B Class B Pass-Through Rate
Class C Class C Pass-Through Rate
Class D Class D Pass-Through Rate
Class E Class E Pass-Through Rate
Class F Class F Pass-Through Rate
Class G Class G Pass-Through Rate
Class H Class H Pass-Through Rate
Class J Class J Pass-Through Rate
Class K Class K Pass-Through Rate
Class L Class L Pass-Through Rate
Class M Class M Pass-Through Rate
Class N Class N Pass-Through Rate
Class Q-1 Class Q-1 Pass-Through Rate
Class Q-2 Class Q-2 Pass-Through Rate
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Certificate (except the Class R and Class
LR Certificates), the percentage interest is equal to the initial denomination
of such Certificate divided by the initial Certificate Balance or Notional
Balance, as applicable, of such Class of Certificates. With respect to any Class
R or Class LR Certificate, the percentage interest is set forth on the face
thereof.
"Permitted Investments": Any one or more of the following
obligations or securities payable on demand or having a scheduled maturity on or
before the Business Day preceding the date upon which such funds are required to
be drawn, regardless of whether issued by the Depositor, the Servicer, the
Trustee or any of their respective Affiliates and having at all times the
required ratings, if any, provided for in this definition, unless each Rating
Agency shall have confirmed in writing to the Servicer that a lower rating would
not, in and of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as
to payment of principal and interest by, the United States or
any agency or instrumentality thereof; provided such
obligations are backed by the full faith and credit of the
United States of America including, without limitation,
obligations of: the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration
(certificates of beneficial ownership), the General Services
Administration (participation certificates), the U.S. Maritime
Administration (guaranteed Title XI financing), the Small
Business Administration (guaranteed participation certificates
and guaranteed pool certificates), the U.S. Department of
Housing and Urban Development (local authority bonds) and the
Washington Metropolitan Area Transit Authority (guaranteed
transit bonds); provided, however, that the investments
described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or
change, (B) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest
rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States
government sponsored agencies: Federal Home Loan Mortgage
Corp. (debt obligations), the Farm Credit System (consolidated
systemwide bonds and notes), the Federal Home Loan Banks
(consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing
Association (debt obligations), the Financing Corp. (debt
obligations), and the Resolution Funding Corp. (debt
obligations); provided, however, that the investments
described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or
change, (B) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest
rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(iv) federal funds, unsecured certificates of deposit,
time or similar deposits, bankers' acceptances and repurchase
agreements, with maturities of not more than 365 days, of any
bank, the short term obligations of which are rated in the
highest short term rating category by each Rating Agency (or,
if not rated by Fitch, Moody's or S&P, otherwise acceptable to
Fitch, Moody's or S&P, respectively, as confirmed in writing
that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates); provided, however, that
the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(v) insured deposits in, or certificates of deposit
of, or bankers' acceptances issued by, any bank or trust
company, savings and loan association or savings bank, the
short term obligations of which are rated in the highest short
term rating category by each Rating Agency (or, if not rated
by Fitch, Moody's or S&P, otherwise acceptable to Fitch,
Moody's or S&P, respectively, as confirmed in writing that
such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates); provided, however, that
the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(vi) debt obligations with maturities of not more than
365 days rated by each Rating Agency (or, if not rated by
Fitch, Moody's or S&P, otherwise acceptable to Fitch, Moody's
or S&P, respectively, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings
assigned to the Certificates) in its highest long-term
unsecured rating category; provided, however, that the
investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(vii) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more
than one year after the date of issuance thereof) with
maturities of not more than 365 days and that is rated by each
Rating Agency (or, if not rated by Fitch, Moody's or S&P,
otherwise acceptable to Fitch, Moody's or S&P, respectively,
as confirmed in writing that such investment would not, in and
of itself, result in a downgrade, qualification or withdrawal
of the then-current ratings assigned to the Certificates) in
its highest short-term unsecured debt rating; provided,
however, that the investments described in this clause must
(A) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if such investments
have a variable rate of interest, such interest rate must be
tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and (C)
such investments must not be subject to liquidation prior to
their maturity;
(viii) the Federated Prime Obligation Money Market Fund
(the "Fund") so long as the Fund is rated in the highest
long-term category by Fitch and Moody's and "AAAm" or "AAAmg"
by S&P (or, if not rated by Fitch, Moody's or S&P, otherwise
acceptable to Fitch, Moody's or S&P, respectively, as
confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Certificates); and
(ix) any other demand, money market or time deposit,
demand obligation or any other obligation, security or
investment, provided that each Rating Agency has confirmed in
writing to the Servicer, Special Servicer or Trustee, as
applicable, that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates;
provided, however, that, if such investment is rated by S&P, it must not have an
"r" highlighter affixed to its rating; provided, further with respect to clause
(ix) above, in the judgment of the Servicer, such instrument qualifies as a
"cash flow investment" pursuant to Code Section 860G(a)(6) earning a passive
return in the nature of interest and provided, further that no instrument or
security shall be a Permitted Investment if (i) such instrument or security
evidences a right to receive only interest payments or (ii) the right to receive
principal and interest payments derived from the underlying investment provides
a yield to maturity in excess of 120% of the yield to maturity at par of such
underlying investment. No Permitted Investments shall have maturities of more
than 365 days.
"Permitted Transferee": With respect to a Residual Interest, any
Person or agent thereof other than (a) a Disqualified Organization, (b) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel (prepared at the expense of such Person or the Person requesting the
Transfer) to the effect that the Transfer of an Ownership Interest in any
Residual Interest to such Person may cause the Upper-Tier REMIC, Lower-Tier
REMIC, or any Loan REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S.
Person and (d) a Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Placement Agents": Any placement agents retained by the Depositor
with respect to a proposed private sale of the Private Certificates.
"Plan": As defined in Section 5.02(k).
"Premium": With respect to each Premium Loan, the amount by which
the face of the related Note is less than the amount advanced to the Borrower.
"Premium Loan Report": A report substantially in the form of Exhibit
M-13 attached hereto, setting forth certain information, on a monthly basis, on
the Premium Loans.
"Premium Loans": The Mortgage Loans identified as Premium Loans on
the Mortgage Loan Schedule.
"Prepayment Assumption": The assumption that each ARD Loan prepays
on its Anticipated Repayment Date and that each other Mortgage Loan does not
prepay prior to its respective Maturity Date.
"Prepayment Interest Excess": With respect to any Distribution Date
and any Mortgage Loan that was subject to a Principal Prepayment during the
related Collection Period, which Principal Prepayment was applied to such
Mortgage Loan following the Due Date in such Collection Period, the amount of
interest accrued on the amount of such Principal Prepayment during the period
from and after such Due Date and before the following Servicer Remittance Date,
to the extent collected from the related Borrower.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, the amount of any shortfall in collections of interest (adjusted to the
applicable Net Mortgage Pass-Through Rate plus the Trustee Fee Rate) resulting
from a Principal Prepayment on such Mortgage Loan during the related Collection
Period and prior to the related Due Date.
"Prepayment Premium": Payments received on a Mortgage Loan as the
result of a Principal Prepayment thereon, not otherwise due thereon in respect
of principal or interest, including any Return of Premium Amount but excluding
any Repurchase Return of Premium Amount.
"Prepayment Premium Discount Rate": As defined in Section
4.01(c)(i)(I).
"Principal Allocation Fraction": As defined in Section
4.01(c)(i)(I).
"Principal Distribution Amount": For any Distribution Date will be
equal to the sum of:
(i) the principal component of all scheduled Monthly Payments
(other than Balloon Payments) due on the Mortgage Loans on or
(to the extent not previously advanced) before the related Due
Date and are either received during the relevant Collection
Period (or received as late payments after the end of such
Collection Period, but prior to the close of business on the
Business Day prior to the related Servicer Remittance Date) or
advanced for such Distribution Date;
(ii) the principal component of all Assumed Scheduled Payments,
which are due or deemed due, as the case may be, on or (to the
extent not previously advanced) before the related Due Date
and are either received during the relevant Collection Period
or advanced for such Distribution Date;
(iii) the Stated Principal Balance of each Mortgage Loan that was,
during the related Collection Period, repurchased from the
Trust Fund in connection with the breach of a representation
or warranty pursuant to Section 2.03 or purchased from the
Trust Fund pursuant to Section 9.01;
(iv) the portion of Unscheduled Payments allocable to principal of
any Mortgage Loan that was liquidated during the related
Collection Period;
(v) the principal component of all Balloon Payments and, to the
extent not included in the preceding clauses, any other
principal payment on any Mortgage Loan received on or after
the Maturity Date thereof, to the extent received during the
related Collection Period;
(vi) to the extent not included in the preceding clauses (iv) or
(v), all other Principal Prepayments received in the related
Collection Period; and
(vii) to the extent not included in the preceding clauses, any other
full or partial recoveries in respect of principal, including
Net Insurance Proceeds, Net Liquidation Proceeds and Net REO
Proceeds received in the related Collection
Period;
provided that, the amounts described in clauses (i) through (vi) shall be net of
any reimbursement for related outstanding P&I Advances allocable to principal.
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by the
Borrower on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing the full
amount of scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment other than any amount paid in connection
with the release of the related Mortgaged Property through defeasance.
"Private Certificates": The Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class Q-1, Class Q-2, Class R and Class LR
Certificates.
"Private Global Certificate": The Rule 144A Global Certificates with
respect to the Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N and Class Q-1 Certificates if and so long as such class of Certificates
is registered in the name of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan, any advance made by the
Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses (including any reimbursements to any Other Servicer
on account of the Trust Fund's pro rata portion of any Property Advance made by
such Other Servicer on account of a Split Note) or any expenses incurred to
protect, preserve and enforce the security for a Mortgage Loan or taxes and
assessments or insurance premiums or as a result of expenses incurred relating
to a breach of a representation, warranty or covenant, pursuant to Section
2.03(d), 2.03(e), 3.04 or Section 3.24, as applicable, or any other expense
specified as a Property Advance herein. Each reference to the payment or
reimbursement of a Property Advance shall be deemed to include, whether or not
specifically referred to, payment or reimbursement of any unpaid interest
thereon at the Advance Rate from and including the date of the making of such
Advance through and including the date of payment or reimbursement.
"Property Protection Expenses": All customary, reasonable and
necessary "out of pocket" costs and expenses incurred by or on behalf of the
Servicer or Special Servicer in connection with the servicing of a Mortgage Loan
which are "unanticipated," within the meaning of Treasury Regulations Section
1.860G-1(b)(iii), or any such costs and expenses incurred in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) the preservation, insurance, restoration, protection and management of a
Mortgaged Property, including the cost of any "forced placed" insurance policy
purchased by the Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the Servicer, or the Special Servicer is required to
cause to be insured pursuant to Section 3.08, (b) obtaining any Insurance
Proceeds or any Liquidation Proceeds, (c) any enforcement or judicial
proceedings with respect to a Mortgaged Property or Mortgage Loan, including,
without limitation, foreclosures, (d) any Updated Appraisal or other appraisal
and (e) the operation, management, maintenance and liquidation of any REO
Property, including, without limitation, appraisals. Notwithstanding anything to
the contrary, "Property Protection Expenses" shall not include allocable
overhead of the 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.
"Prospectus": The Depositor's Prospectus Supplement dated October
15, 1999 relating to the Public Certificates.
"Privileged Persons": As defined in Section 4.02(c).
"Public Certificates": The Class A-1, Class A-2, Class A-3, Class
CS-1, Class X, Class B, Class C, Class D, Class E and Class F Certificates.
"Qualified Institutional Buyer": A qualified institutional buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance
company or security or bonding company qualified to write the related insurance
policy in the relevant jurisdiction which shall have a claims paying ability of
"AIX" or better by Fitch (if such company is not rated by Fitch a rating of at
least "A" by A.M. Bests Key Rating Guide may be substituted for such Fitch
rating) and "A+" or better by S&P and an insurance financial strength rating of
"A2" or better by Moody's (if such company is not rated by Moody's a rating of
at least "A" by A.M. Bests Key Rating Guide may be substituted for such Moody's
rating), (ii) in the case of public liability insurance policies required to be
maintained with respect to REO Properties in accordance with Section 3.08(a),
shall have a claims paying ability of "A" or better by Fitch (if such company is
not rated by Fitch a rating of at least "A" by A.M. Bests Key Rating Guide may
be substituted for such Fitch rating) and "A" or better by S&P and an insurance
financial strength rating of "A2" or better by Moody's (if such company is not
rated by Moody's a rating of at least "A" by A.M. Bests Key Rating Guide may be
substituted for such Moody's rating)and (iii) in the case of the fidelity bond
and the errors and omissions insurance required to be maintained pursuant to
Section 3.08(c), shall have a claims paying ability rated by each Rating Agency
no lower than two ratings categories (without regard to pluses or minuses or
numeric qualifications) lower than the highest rating of any outstanding Class
of Certificates from time to time, but in no event lower than "BBB" by Fitch (if
such company is not rated by Fitch a rating of at least "A" by A.M, Bests Key
Rating Guide may be substituted for such Moody's rating) and "BBB" by S&P and an
insurance financial strength rating of "A2" by Moody's (if such company is not
rated by Moody's a rating of at least "A" by A.M. Bests Key Rating Guide may be
substituted for such Moody's rating), unless in any such case each of the Rating
Agencies has confirmed in writing that obtaining the related insurance from an
insurance company that is not rated by each of the Rating Agencies (subject to
the foregoing exceptions) or that has a lower claims-paying ability than such
requirements shall not result, in and of itself, in a downgrade, qualification
or withdrawal of the then-current ratings by such Rating Agency to any Class of
Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage"
within the meaning of Code Section 860G(a)(3) of the Code (but without regard to
the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any substantially similar successor
provision.
"Rated Final Distribution Date": November 17, 2034, the first
Distribution Date occurring at least three years after the last amortization
period of any of the Mortgage Loans.
"Rating Agency": Either of Fitch, Moody's or S&P. References herein
to the highest long-term unsecured debt rating category of a Rating Agency shall
mean "AAA" with respect to Fitch, "AAA" with respect to S&P and "Aaa" with
respect to Moody's and in the case of any other rating agency shall mean such
highest rating category or better without regard to any plus or minus or
numerical qualification.
"Real Property": Land or improvements thereon such as buildings or
other inherently permanent structures thereon (including items that are
structural components of the buildings or structures), in each such case as such
terms are used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date shall mean
the amount, if any, by which the aggregate Certificate Balance of the
Certificates after giving effect to distributions made on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans that will
be outstanding immediately following such Distribution Date. In the case of a
Loan REMIC, a Realized Loss with respect to the related Mortgage Loan shall be a
Realized Loss with respect to the related Loan REMIC Regular Interest.
"Reassignment of Assignment of Leases, Rents and Profits": As
defined in Section 2.01(a)(viii).
"Record Date": With respect to each Distribution Date, the close of
business on the tenth day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. For all
purposes other than Section 4.01 hereof, the Record Date with respect to the
Distribution Date occurring on November 17, 1999 shall be the Closing Date.
"Reference Pass-Through Rate": As defined in Section 4.01(c)(i)(II).
"Regular Certificates": The Class A-1, Class A-2, Class A-3, Class
CS-1, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class Q-1 and Class Q-2
Certificates.
"Regulation D": Regulation D under the Act.
"Related Certificate" and "Related Lower-Tier Regular Interest": For
any Class or Classes of Lower-Tier Regular Interests, the related Class of
Certificates set forth below and for any Class of Certificates (other than the
Class CS-1, Class X, Class R and Class LR), the related Class of Lower-Tier
Regular Interest set forth below:
Related Lower-Tier
Related Certificate Regular Interest
------------------- ------------------
Class A-1 Class A-1-LA Interest
Class A-1 Class A-1-LB Interest
Class A-2 Class A-2-L Interest
Class A-3 Class A-3-L Interest
Class B Class B-L Interest
Class C Class C-L Interest
Class D Class D-L Interest
Class E Class E-L Interest
Class F Class F-L Interest
Class G Class G-L Interest
Class H Class H-L Interest
Class J Class J-L Interest
Class K Class K-L Interest
Class L Class L-L Interest
Class M Class M-L Interest
Class N Class N-L Interest
Class Q-1 Class Q-1-L Interest
Class Q-2 Class Q-2-L Interest
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations (including any applicable proposed regulations) and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code,
any amount received or accrued, directly or indirectly, with
respect to such REO Property, if the determination of such
amount depends in whole or in part on the income or profits
derived by any Person from such property (unless such amount
is a fixed percentage or percentages of receipts or sales and
otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from
any Person if the Trust Fund owns directly or indirectly
(including by attribution) a ten percent or greater interest
in such Person determined in accordance with Sections
856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates
such REO Property;
(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants
in buildings of a similar class in the same geographic market
as such REO Property within the meaning of Treasury
Regulations Section 1.856-4(b)(1) (whether or not such charges
are separately stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of
such REO Property and, for any taxable year of the Trust Fund,
such rent is no greater than 15 percent of the total rent
received or accrued under, or in connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related
Mortgaged Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been
acquired by the Special Servicer on behalf of the Trust Fund through
foreclosure, deed in lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the content
described in Exhibit M-5 attached hereto, setting forth, among other things,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Due Date immediately preceding the preparation of such
report, (i) the acquisition date of such REO Property, (ii) the amount of income
collected with respect to any 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 date of determination (including any prepared internally by the Special
Servicer).
"Repurchase Price": With respect to any Mortgage Loan to be
repurchased pursuant to Section 2.03(d), 2.03(e) or 9.01, or any Specially
Serviced Mortgage Loan or any REO Mortgage Loan to be sold or repurchased
pursuant to Section 3.18, an amount, calculated by the Servicer, equal to:
(i) the outstanding principal balance of such Mortgage Loan as of
the Due Date as to which a payment was last made by the
Borrower (less any outstanding P&I Advances previously made on
account of principal); plus
(ii) accrued interest up to the Due Date in the month following the
month in which such repurchase occurs (less any outstanding
P&I Advances previously made on account of interest); plus
(iii) the amount of any unreimbursed Advances (with interest
thereon) and any unreimbursed Servicing Compensation (with
interest thereon) and Special Servicing Compensation relating
to such Mortgage Loan (with interest thereon); plus
(iv) in the event that the Mortgage Loan is required to be
repurchased pursuant to Sections 2.03(d) or 2.03(e), any
expenses reasonably incurred or to be incurred by the
Servicer, the Special Servicer or the Trustee in respect of
the breach or defect giving rise to the repurchase obligation,
including any expenses arising out of the enforcement of the
repurchase obligation; plus
(v) with respect to each Mortgage Loan that is a Premium Loan, any
unearned Premium or other amount that would have been due from
the related Borrower if such Premium Loan were prepaid.
"Repurchase Price Return of Premium Distribution Account": The trust
account or accounts created and maintained as a separate trust account or
accounts by the Trustee pursuant to Section 3.05(e), which shall be entitled
"LaSalle Bank National Association, as Trustee, in trust for Holders of
Commercial Mortgage Asset Trust, Commercial Mortgage Pass-Through Certificates,
Series 1999-C2, Repurchase Price Return of Premium Distribution Account" and
which must be an Eligible Account. The Repurchase Price Return of Premium
Distribution Account shall not be an asset of the Loan REMICs or the Lower-Tier
REMIC or the Upper-Tier REMIC formed hereunder.
"Repurchase Return of Premium Amount": With respect to any Mortgage
Loan required to be repurchased pursuant to Section 2.03(d), 2.03(e), 3.18(a) or
9.01, the Return of Premium Amount described in clause (v) of the definition of
Repurchase Price.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve
accounts, if any, established pursuant to the Mortgage or the Loan Agreement and
any Escrow Account. Any Reserve Account may be a sub-account of a related Cash
Collateral Account. Any Reserve Account shall be beneficially owned for federal
income tax purposes by the Person who is entitled to receive the reinvestment
income or gain thereon in accordance with the terms and provisions of the
related Mortgage Loan and Section 3.07, which Person shall be taxed on all
reinvestment income or gain thereon. The Servicer shall be permitted to make
withdrawals therefrom for deposit into the related Cash Collateral Account, if
applicable, or the Collection Account or for the purposes set forth under the
related Mortgage Loan.
"Residual Interest": Any Class R or Class LR Certificate or any Loan
REMIC Residual Interest.
"Residual Value Policy": With respect to the credit leases related
to each of the Credit Lease Loans, the related insurance policy insuring against
the diminution in value of the related Mortgaged Properties.
"Responsible Officer": Any officer of the Asset-Backed Securities
Trust Services Group of the Trustee or the Fiscal Agent (and, in the event that
the Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust
Office with direct responsibility for the administration of this Agreement and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, and, in the case of any certification required to be signed
by a Responsible Officer, such an officer whose name and specimen signature
appears on a list of corporate trust officers furnished to the Servicer by the
Trustee and the Fiscal Agent, as such list may from time to time be amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Return of Premium Amount": In the event of a prepayment or
repurchase of a Premium Loan, any amount paid that is (or would have been had
the Mortgage Loan been repaid rather than repurchased) applied by the Servicer
(in accordance with Section 3.28(d) hereof) to the unamortized portion of the
Premium, which in the case of a repurchase will constitute the Repurchase Return
of Premium Amount.
"Revised Mortgage Rate": With respect to the ARD Loans, the
increased interest rate after the Anticipated Repayment Date (in the absence of
a default) for each ARD Loan, as calculated and as set forth in the related ARD
Loan and the Mortgage Loan Schedule.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class G, Class H, Class
J, Class K, Class L, Class M, Class N and, Class Q-1 Certificates issued as such
on or subsequent to the Closing Date.
"S&P": Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc., or its successor in interest.
"Securities Legend": With respect to each Residual Interest or any
Individual Certificate, the legend set forth in, and substantially in the form
of, Exhibit G hereto.
"Sequential Certificates": The Classes of Certificates other than
the Class CS-1, Class X, Class R and Class LR Certificates.
"Servicer": BNY Asset Solutions LLC, a Delaware limited liability
company, or any successor Servicer appointed as herein provided.
"Servicer Event of Default": As defined in Section 7.01(a).
"Servicer Fee Amount": With respect to each sub-servicer and any
date of determination, the aggregate of the products of, for each Mortgage Loan
serviced by such sub-servicer, (a) the principal balance of such Mortgage Loan
serviced as of the end of the immediately preceding Collection Period multiplied
by (b) the sub-servicing fee rate specified in the related sub-servicing
agreement for such Mortgage Loan. With respect to the Servicer and any date of
determination, the aggregate of the products of, for each Mortgage Loan, (a) the
principal balance of such Mortgage Loan as of the end of the immediately
preceding Collection Period multiplied by (b) the difference between the
Servicing Fee Rate for such Mortgage Loan and the sub-servicing fee rate (if
any) applicable to such Mortgage Loan as specified in the related sub-servicing
agreement related to such Mortgage Loan.
"Servicer Prepayment Interest Shortfall": With respect to any
Distribution Date, the aggregate amount of Prepayment Interest Shortfalls
incurred as a result of Principal Prepayments on the Mortgage Loans (other than
Mortgage Loans with terms that permit prepayments on a date other than a Due
Date and other than Specially Serviced Mortgage Loans) less any Prepayment
Interest Excesses during the related Collection Period; provided, however, that
the aggregate amount of the Servicer Prepayment Interest Shortfall with respect
to any Collection Period shall not exceed the aggregate amount of Servicing Fees
attributable to all the Mortgage Loans for such Collection Period and the
investment income accruing on the related Principal Prepayments with respect to
such Collection Period.
"Servicer Remittance Date": With respect to any Distribution Date,
the Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer
and/or the Special Servicer in such media as may be agreed upon by the Servicer,
the Special Servicer and the Trustee containing such information regarding the
Mortgage Loans as will permit the Trustee to calculate the amounts to be
distributed pursuant to Section 4.01 and to furnish statements to
Certificateholders pursuant to Section 4.02, including information on the
outstanding principal balances of each Mortgage Loan specified therein, and
containing such additional information as the Servicer, the Special Servicer and
the Trustee may from time to time agree.
"Servicing Compensation": With respect to any Distribution Date, the
related Servicing Fee and any other fees, charges or other amounts payable to
the Servicer on such Distribution Date.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan
(which amount does not include any balance on any Other Mortgage Loans) as of
the day immediately preceding such Distribution Date. The Servicing Fee shall be
a portion of the Administrative Fee.
"Servicing Fee Rate": A rate equal to 0.05% per annum, which
constitutes part of the Administrative Fee Rate.
"Servicing Officer": Any officer or employee of the Servicer, or the
Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or this Agreement and also,
with respect to a particular matter, any other officer or employee to whom such
matter is referred because of such officer's or employee's knowledge of and
familiarity with the particular subject, and, in the case of any certification
required to be signed by a Servicing Officer, such an officer or employee whose
name and specimen signature appears on a list of servicing officers furnished to
the Trustee by the Servicer, or the Special Servicer, as applicable, as such
list may from time to time be amended.
"Servicing Standard": With respect to the Servicer or the Special
Servicer shall mean the servicing of the Mortgage Loans and, if applicable,
administering any REO Property by the Servicer or the Special Servicer on behalf
of the Trust Fund, solely in the best interests of and for the benefit of all of
the Certificateholders and, in the case of each Split Note, in the best
interests of and for the benefit of the Trust Fund and holder of the Other Note
or Other Notes as well (as determined by the Servicer or the Special Servicer in
the exercise of its reasonable judgment), and in accordance with applicable law,
the specific terms of the respective Mortgage Loans, this Agreement, to the
extent expressly applicable, and, in the case of each Split Note, the related
Co-Lender Agreement, and to the extent not inconsistent with the foregoing, in
the same manner in which, and with the same care, skill, prudence and diligence
with which, it (i) services and administers similar mortgage loans comparable to
the Mortgage Loans (and, in the case of the Special Servicer, real properties
comparable to the REO Properties) and held for other similar third-party
portfolios, giving due consideration to customary and usual standards and
practices of prudent institutional commercial mortgage lenders servicing their
own loans and to the maximization of the recovery on such Mortgage Loans (and,
if applicable, REO Properties) on a net present value basis or (ii) administers
mortgage loans (and, in the case of the Special Servicer, real properties
comparable to the REO Properties) for its own account, whichever standard is
higher, but without regard to:
(i) any known relationship that the Servicer, the Special
Servicer, or any Affiliate of the Servicer or the Special
Servicer may have with any Borrower or any other parties to
this Agreement;
(ii) the ownership of any Certificate by the Servicer, the Special
Servicer or any Affiliate of the Servicer or the Special
Servicer, as applicable;
(iii) the Servicer's obligation to make Advances, or to incur
servicing expenses with respect to the Mortgage Loans;
(iv) the Servicer's or the Special Servicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction;
(v) the ownership, or servicing or management for others, by the
Servicer or the Special Servicer, of any other mortgage loans
or properties (other than the Other Mortgage Loans); or
(vi) any debt the Servicer or Special Servicer has extended toward
any Borrower.
"Similar Law": As defined in Section 5.02(k) hereof.
"Special Servicer": Lennar Partners, Inc., a Florida corporation, or
its successor in interest, or any successor Special Servicer appointed as
provided in Section 3.25. In the event that at any time the Servicer is also the
Special Servicer hereunder, and the Servicer is terminated or resigns as the
Servicer hereunder, the Servicer shall be terminated as the Special Servicer
hereunder.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicer's Appraisal Reduction Amount Estimate": As defined
in the definition of Appraisal Reduction Amount.
"Special Servicing Compensation": With respect to any Mortgage Loan,
any of (i) the Special Servicing Fee, (ii) the Work Out Fee, (iii) the
Liquidation Fee and (iv) all other amounts due to the Special Servicer pursuant
to Section 3.12(a) and Section 3.12(b)(iii).
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Mortgage Loan and any Distribution Date, an amount equal
to the product of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the
Stated Principal Balance of such Specially Serviced Mortgage Loan or, if such
Mortgage Loan is evidenced by a Split Note, the sum of the Stated Principal
Balance of such Mortgage Loan and the stated principal balance of the related
Other Mortgage Loan, in each case as of the day immediately prior to such
Distribution Date; provided, however that if a Mortgage Loan is a Specially
Serviced Mortgage Loan or an REO Mortgage Loan for a portion, but not all, of
the related Interest Accrual Period with respect to such Distribution Date, then
the Special Servicing Fee shall be equal to (i) the product of (A) the actual
number of days in such Interest Accrual Period during which such Mortgage Loan
is a Specially Serviced Mortgage Loan or an REO Mortgage Loan, as the case may
be, (B) the Special Servicing Fee Rate and the (C) the Stated Principal Balance
of such Mortgage Loan or, if such Mortgage Loan is evidenced by a Split Note,
the sum of the Stated Principal Balance of such Mortgage Loan and the stated
principal balance of the related Other Mortgage Loan, in each case immediately
prior to the related Distribution Date, divided by (ii) 360. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO
Mortgage Loan which is evidenced by a Split Note shall be paid from the
Collection Account and the Special Servicing Fee with respect to any related
Other Mortgage Loan shall be payable under the related Co-Lender Agreement
(which amount may be netted against amounts payable to the holder of the Other
Note).
"Special Servicing Fee Rate": A rate equal to 0.25% per annum.
"Specially Serviced Mortgage Loan": Subject to Section 3.26 any
Mortgage Loan with respect to which:
(i) the related Borrower has not made two consecutive Monthly
Payments (and has not cured at least one such delinquency by
the next Due Date);
(ii) the related Borrower has expressed to the Servicer an
inability to pay or a hardship in paying the Mortgage Loan in
accordance with its terms;
(iii) the Servicer has received notice that the Borrower has become
the subject of any bankruptcy, insolvency or similar
proceeding, admitted in writing the inability to pay its debts
as they come due or made an assignment for the benefit of
creditors;
(iv) the Servicer has received notice of a foreclosure or
threatened foreclosure of any lien on the Mortgaged Property
securing the Mortgage Loan;
(v) a default (A) of which the Servicer has notice (other than a
failure by the Borrower to pay principal or interest) and (B)
which materially and adversely affects the interests of the
Certificateholders has occurred and remained unremedied for
the applicable grace period specified in the Mortgage Loan
(or, if no grace period is specified, 60 days);
(vi) the Special Servicer proposes to commence foreclosure or other
work out arrangements; or
(vii) the related Borrower has failed to make a Balloon Payment as
and when due, unless the Servicer reasonably believes
(consistent with the Servicing Standard) that the Balloon
Payment will be paid within 90 days of its Due Date;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(a) with respect to the circumstances described in clause (i) and
(vii) above, when the Borrower thereunder has brought the
Mortgage Loan current (or, with respect to the circumstances
described in clause (vii), pursuant to a workout implemented
by the Special Servicer) and thereafter made three consecutive
full and timely Monthly Payments (including pursuant to any
work out of the Mortgage Loan);
(b) with respect to the circumstances described in clauses (ii),
(iii), (iv) and (vi) above, when such circumstances cease to
exist in the good faith judgment of the Servicer; or
(c) with respect to the circumstances described in clause (v)
above, when such default is cured;
provided further, however, that at that time no circumstance identified in
clauses (i) through (vii) above exists that would cause the Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan.
Notwithstanding anything above, the Mortgage Loan known as the
LaJolla Village Loan will not be required to be treated as a Specially Serviced
Mortgage Loan for so long as the LaJolla Village Loan borrower is otherwise not
in default under the terms of its Fifth Amended Plan of Reorganization As
Modified (And As Further Modified February 19, 1998) or the terms of the related
Mortgage Loan.
"Split Loans": The ACCOR Credit Lease Loan, the Circuit City Credit
Lease Loans and the Mortgage Loan identified on the Mortgage Loan Schedule as
Loan Number 16, as to which each such Mortgage Loan is actually a portion of a
mortgage loan which is represented by two or more separate notes, the Split Note
and the Other Note.
"Split Note": With respect to each Split Loan, the Note included in
the Trust Fund.
"Startup Day": The day designated as such pursuant to Section
2.06(a) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan, at
any date of determination, an amount equal to (a) the principal balance as of
the Cut-off Date of such Mortgage Loan (after application of all payments of
principal due in respect thereof on or before the Cut-off Date, whether or not
received), reduced (to not less than zero) by (b) the sum of (i) the principal
portion of each Monthly Payment due and Assumed Scheduled Payment deemed due on
such Mortgage Loan after the Cut-off Date to the extent received from the
Borrower or advanced by the Servicer, Trustee or Fiscal Agent and distributed to
Certificateholders or applied to any other payments (other than the
reimbursement of the principal portion of P&I Advances) required under this
Agreement on or prior to such date of determination, (ii) all voluntary and
involuntary principal prepayments, the principal component of a Balloon Payment
and also other unscheduled collections of principal received with respect to
such Mortgage Loan to the extent received from the Borrower or otherwise
collected and distributed to Certificateholders or applied to any other payments
(other than the reimbursement of the principal portion of P&I Advances) required
under this Agreement on or prior to such date of determination and (iii) any
principal forgiven by the Special Servicer and other principal losses realized
with respect to such Mortgage Loan as of the end of the Collection Period for
the most recent Distribution Date coinciding with or preceding such date of
determination. In the case of the Geneva Crossing Loan and the Henry W. Oliver
Loan, the Stated Principal Balance thereof shall equal the Certificate Balance
of the related Loan REMIC Regular Interest. The Stated Principal Balance of any
REO Mortgage Loan as of any date of determination is equal to the Stated
Principal Balance thereof outstanding on the date on which such title is
acquired, reduced (to not less than zero) by the sum of (i) the principal
portion of any P&I Advances made in respect of such REO Mortgage Loan and
distributed to Certificateholders on or before such date and (ii) any Net REO
Proceeds received and allocated to principal on such REO Mortgage Loan to the
extent distributed to Certificateholders or applied to any other payments (other
than the reimbursement of the principal portion of P&I Advances) required under
this Agreement on or prior to such date of determination. The Stated Principal
Balance of a Specially Serviced Mortgage Loan or REO Mortgage Loan with respect
to which the Servicer or Special Servicer has made a Final Recovery
Determination during any Collection Period is zero commencing as of the
Distribution Date that corresponds to such Collection Period.
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed separately on behalf
of each Loan REMIC, the Upper-Tier REMIC and Lower-Tier REMIC under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
or any other governmental taxing authority under any applicable provisions of
federal, state or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Event": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date (other than interest accrued
prior to the Cut-off Date); (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's, the Special Servicer's and
the Trustee's rights under the insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to this Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans; (viii) all assets deposited in the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Repurchase Price Return of Premium Distribution
Account and the Interest Reserve Account including reinvestment income; (ix)
each Loan REMIC Regular Interest and Loan REMIC Residual Interest, (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Mortgage Loan Purchase and Sale Agreements and
the Bloomfield Purchase Agreement; (xii) the proceeds of any of the foregoing
and (xiii) the Cash Deposit.
"Trust-Indemnified Party": As defined in Section 8.05(d).
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle Bank National Association, a nationally chartered
bank, in its capacity as trustee, or its successor in interest, or any successor
trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Trustee Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan as
of the day immediately prior to the related Distribution Date. The Trustee Fee
shall be a portion of the Administrative Fee.
"Trustee Fee Rate": A rate equal to 0.0035% per annum, which
constitutes part of the Administrative Fee Rate.
"Underwriters": Goldman, Sachs & Co., Donaldson, Lufkin & Jenrette
Securities Corporation and Nomura Securities International, Inc.
"Unscheduled Payments": With respect to a Mortgage Loan and a
Collection Period, all Net Liquidation Proceeds and Net Insurance Proceeds
payable under such Mortgage Loan, the Repurchase Price of any Mortgage Loan that
is repurchased or purchased pursuant to Sections 2.03(d), 2.03(e) or 9.01, and
any other payments under or with respect to such Mortgage Loan not scheduled to
be made, including Principal Prepayments received by the Servicer, but excluding
Prepayment Premiums, during such Collection Period.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO
Property, as the case may be, conducted subsequent to any appraisal performed on
or prior to the Cut-off Date by an appraiser selected by the Special Servicer
(or, the Servicer, with respect to appraisals performed in connection with
processing an assumption or making its determination of a Nonrecoverable
Advance) and who is an MAI, the costs of which shall be paid as a Property
Advance by the Servicer.
"Upper-Tier Distribution Account": The trust account or accounts (i)
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(c), which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for Holders of Commercial Mortgage Asset
Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2, Upper-Tier
Distribution Account" and which must be an Eligible Account or (ii) maintained
as a subaccount of the Distribution Account pursuant to Section 3.06(c).
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations), created or organized in or under the laws of the United States,
any state or the District of Columbia, including any entity treated as a
corporation or partnership for federal income tax purposes, an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust, and one or more such U.S.
Persons have the authority to control all substantial decisions of such trust
(or, to the extent provided in applicable Treasury Regulations, certain trusts
in existence on August 20, 1996 which are eligible to elect to be treated as
U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate or Class of Certificates. At
all times during the term of this Agreement, the percentage of the Voting Rights
assigned to each Class shall be (a) 0%, in the case of the Class R and Class LR
Certificates, (b) 0.38% in the case of the Class CS-1 Certificates, 0.62% in the
case of the Class X Certificates (the sum of such percentages for each such
Class outstanding is the "Fixed Voting Rights Percentage"), provided that upon
the reduction of the Notional Amount of the Class CS-1 Certificates to zero, the
Voting Rights of the Class CS-1 Certificates will be reduced to zero and the
Voting Rights of the Class X Certificates will be increased to 1.00%; (c) in the
case of any of the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class Q-1 and Class Q-2 Certificates, a percentage equal to the product of (i)
100% minus the Fixed Voting Rights Percentage multiplied by (ii) a fraction, the
numerator of which is equal to the aggregate outstanding Certificate Balance of
any such Class and the denominator of which is equal to the aggregate
outstanding Certificate Balances of all Classes of Certificates. The Voting
Rights of any Class of Certificates shall be allocated among Holders of
Certificates of such Class in proportion to their respective Percentage
Interests, except that any Certificate beneficially owned by the Depositor, the
Servicer, any Borrower, the Trustee (in its individual capacity), a Manager, or
any of their respective Affiliates will be deemed not to be outstanding for
voting purposes; provided, however, that for purposes of obtaining the consent
of Certificateholders to an amendment to this Agreement, any Certificate
beneficially owned by the Servicer or Special Servicer or an Affiliate thereof
will be deemed to be outstanding to the extent that such amendment does not
relate to an increase in the compensation of the Servicer, Special Servicer or
otherwise benefit such entity or an Affiliate (other than solely in its capacity
as Certificateholder) in any material respect; and provided, further, that for
purposes of obtaining the consent of Certificateholders to any action proposed
to be taken by the Special Servicer with respect to a Specially Serviced
Mortgage Loan, any Certificate beneficially owned by the Servicer or an
Affiliate thereof, will be deemed to be outstanding if the Special Servicer is
not the Servicer or an Affiliate thereof. The Certificates beneficially owned by
the Special Servicer or an Affiliate thereof shall be deemed outstanding for
purposes of identifying the Directing Holders. The Voting Rights of each Class
of Certificates will be deemed to be reduced on any day on which an Appraisal
Reduction Amount is allocated to such Class pursuant to Section 4.01(h). The
Fixed Voting Rights Percentage of the Class CS-1 and Class X Certificates shall
be proportionally reduced upon the allocation of Appraisal Reduction Amounts
with respect to any component of such Classes based on the amount of such
reduction.
"Watch List": A report substantially containing the content
described in Exhibit M-6 attached hereto, setting forth, among other things, any
Mortgage Loan that is in jeopardy of becoming a Specially Serviced Mortgage
Loan.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the fraction (expressed as a
percentage), the numerator of which is the sum of the products obtained by
multiplying for each Mortgage Loan, (i) the Net Mortgage Pass-Through Rate for
such Mortgage Loan and (ii) the Stated Principal Balance of such Mortgage Loan
as of the day immediately preceding such Distribution Date, and the denominator
of which is the sum of the Stated Principal Balances of all such Mortgage Loans
immediately preceding such Distribution Date; provided, that in the case of the
Geneva Crossing Loan and the Henry W. Oliver Loan, "Mortgage Loan" shall refer
to the related Loan REMIC Regular Interest.
"Weighted Average Pass-Through Rate": With respect to any
Distribution Date, a fraction (expressed as a percentage), the numerator of
which is the sum of (i) the sum of the products of (A) the Pass-Through Rate
with respect to each Class of Sequential Certificates and (B) the Certificate
Balance of such Class as of the first day of such Interest Accrual Period, and
(ii) the product of (A) the Pass-Through Rate on the Class CS-1 Certificates and
(B) the Notional Balance of such Class as of such date and the denominator of
which is the sum of the Certificate Balances of each Class included in clause
(i)(A) above as of such date (provided in the case of clauses (i) and (ii), any
reductions in Certificate Balance as a result of distributions or allocations of
Realized Losses to such Class, respectively, occurring in an Interest Accrual
Period shall be deemed to have been made on the first day of such Interest
Accrual Period).
"Withheld Amounts": As defined in Section 3.27(a).
"Work Out Fee": As defined in Section 3.12(b)(i).
Section 1.02 Certain Calculations.
Unless otherwise specified herein, the following provisions shall
apply:
(a) All calculations of interest with respect to the Mortgage
Loans (other than the Actual/360 Mortgage Loans) and of Advances (other than
with respect to Actual/360 Mortgage Loans) provided for herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months. All calculations
of interest and of Advances, in each case, with respect to the Actual/360
Mortgage Loans, provided for herein shall be made as set forth in such Mortgage
Loans with respect to the calculation of the related Mortgage Rate.
(b) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Servicer or the Trustee; provided,
however, that for purposes of calculating distributions on the Certificates,
Principal Prepayments with respect to any Mortgage Loan are deemed to be
received on the date they are applied in accordance with Section 3.01(b) to
reduce the outstanding principal balance of such Mortgage Loan on which interest
accrues.
(c) Any amounts received in respect of a Mortgage Loan as to which
a default has occurred and is continuing in excess of Monthly Payments shall be
applied to Default Interest and other amounts due on such Mortgage Loan prior to
the application to late fees.
Section 1.03 Certain Constructions.
For purposes of Sections 3.25 and 3.29, references to the most or
next most subordinate Class of Certificates (or Lower-Tier Regular Interests)
outstanding at any time shall mean the most or next most subordinate Class of
Certificates (or Lower-Tier Regular Interests) then outstanding as among the
Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class Q-1 and Class Q-2 Certificates (and the Classes of Related Lower-Tier
Regular Interests). For such purposes, the Class Q-1 and Class Q-2 Certificates
(and the Classes of Related Lower-Tier Regular Interests) together shall be
considered to be one Class and the Class A-1, Class A-2 and Class A-3
Certificates (and the Classes of Related Lower-Tier Regular Interests)
collectively shall be considered to be one Class. For purposes of this
Agreement, (i) each Class of Sequential Certificates shall be deemed to be
outstanding only to the extent its respective Certificate Balance has not been
reduced to zero (or, in the case of the Class A-2, Class A-3, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1 and Q-2 Certificates, if longer, shall be deemed outstanding
so long as there are any Notes outstanding that provide for the payment of
Excess Interest), (ii) the Class R and Class LR Certificates shall be deemed to
be outstanding so long as the Trust Fund has not been terminated pursuant to
Section 9.01 and (iii) the Class CS-1 and the Class X Certificates shall be
deemed to be outstanding until their respective Notional Balances have been
reduced to zero.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans and Loan REMIC
Interests; Assignment of Mortgage Loan Purchase
and Sale Agreements.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a trust, appoint the Trustee as trustee of the
trust and sell, transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent herein provided) all the right, title and
interest of the Depositor in and to the Mortgage Loans, including all rights to
payment in respect thereof, except as set forth below, and any security interest
thereunder (whether in real or personal property and whether tangible or
intangible) in favor of the Depositor, and all Reserve Accounts, Lock-Box
Accounts, Cash Collateral Accounts and all other assets included or to be
included in the Trust Fund for the benefit of the Certificateholders. Such
transfer and assignment includes all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date. In connection with such
transfer and assignment, the Depositor shall make a cash deposit to the
Collection Account in an amount equal to the Cash Deposit. The Depositor,
concurrently with execution and delivery hereof, does also hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent provided herein) all the right, title and interest of the Depositor
in, to and under the Mortgage Loan Purchase and Sale Agreements and, in, to and
under the Bloomfield Purchase Agreement as assignee of CCA's rights thereunder
to the extent related to any Mortgage Loan. Each of the Servicer, the Special
Servicer and the Trustee shall notify the responsible Mortgage Loan Seller and
the Depositor upon such party's becoming aware of any breach of the
representations and warranties contained in this Agreement or the Mortgage Loan
Purchase and Sale Agreement that gives rise to a cure or repurchase obligation;
provided, that the failure of the Servicer, the Special Servicer or Trustee to
give such notification shall not constitute a waiver of any cure or repurchase
obligation. The Depositor shall cause the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts to be transferred to and held in the name of the
Servicer, on behalf of the Trustee as successor to the Mortgage Loan Sellers and
the Originators.
In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, the Custodian (on behalf of the Trustee),
with copies to the Servicer (and the Servicer will provide copies to Special
Servicer (in a mutually agreed upon format) upon request, at the expense of the
Depositor, and, if not paid by the Depositor within 30 days of request, such
expense shall constitute a Property Advance hereunder), the following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) the original of the Note, endorsed without recourse to the
order of the Trustee on behalf of the Trust Fund in the
following form: "Pay to the order of LaSalle Bank National
Association, as Trustee, without recourse," or in blank, which
Note and all endorsements thereon shall, unless the Mortgage
Loan was originated by the Mortgage Loan Seller (as indicated
on the Mortgage Loan Schedule), show a complete chain of
endorsement from the Originator to the Trustee;
(ii) the original recorded Mortgage or counterpart thereof showing
the Originator as mortgagee or, if any such original Mortgage
has not been returned from the applicable public recording
office, a copy thereof certified to be a true and complete
copy of the original thereof submitted for recording;
(iii) an executed Assignment of Mortgage in suitable form for
recordation in the jurisdiction in which the Mortgaged
Property is located to "LaSalle Bank National Association, as
Trustee, without recourse" and any intervening assignments,
showing an unbroken chain of assignments from the Originator
to the Trustee or in blank;
(iv) if the related security agreement is separate from the
Mortgage, the original executed version or counterpart thereof
of such security agreement and the assignment thereof to the
Trustee and any intervening assignments, showing an unbroken
chain of assignments from the Originator to the Trustee or in
blank;
(v) a copy of the UCC-1 financing statement, together with an
original executed UCC-2 or UCC-3 financing statement, in a
form suitable for filing, disclosing the assignment to the
Trustee of the security interest in the personal property (if
any) constituting security for repayment of the Mortgage Loan;
(vi) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(vii) the original lender's title insurance policy (or the original
pro forma title insurance policy), together with any
endorsements thereto, or marked commitments to insure;
(viii)if any related Assignment of Leases, Rents and Profits is
separate from the Mortgage, the original executed version or
counterpart thereof, together with an executed reassignment of
such instrument to the Trustee (a "Reassignment of Assignment
of Leases, Rents and Profits") in suitable form for
recordation in the jurisdiction in which the Mortgaged
Property is located (which reassignment, however, may be
included in the Assignment of Mortgage and need not be a
separate instrument) and any intervening assignments, showing
an unbroken chain of assignments from the Originator to the
Trustee or in blank;
(ix) copies of the original engineering reports and Environmental
Reports of the Mortgaged Properties made in connection with
origination of the Mortgage Loans, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xi) a copy of the related ground lease, as amended, for the
Mortgaged Property, if any;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of
contracts and the assignment thereof to the Trustee;
(xiii)if any related Lock-Box Agreement or Cash Collateral Agreement
is separate from the Mortgage or Loan Agreement, a copy
thereof; with respect to the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts, if any, a copy of the UCC-1
financing statements, if any, submitted for filing with
respect to the Mortgage Loan Seller's security interest in the
Reserve Accounts, Cash Collateral Accounts and Lock-Box
Accounts and all funds contained therein (and UCC-3 financing
statements assigning such security interest to the Trustee on
behalf of the Certificateholders) along with any intervening
UCC-3 assignments showing an unbroken chain of assignments
from the Originator to the Trustee;
(xiv) any and all amendments, modifications and supplements to, and
waivers related to, any of the foregoing;
(xv) with respect to the Split Loans, the related Co-Lender
Agreement;
(xvi) with respect to the Credit Lease Loans, the original of any
Residual Value Policy, the related credit tenant lease and
tenant estoppels, and any guaranty of the credit lease;
(xvii)with respect to the transfer described in Section 2.01(c), the
originals or copies of the Loan REMIC Declarations; and
(xviii)any other written agreements related to the Mortgage Loan.
On or promptly following the Closing Date, the Trustee shall, to the
extent possession of recorded copies of each Mortgage and the documents
described in Sections 2.01(a)(iv), (v), (viii), (xii), (xiii) and (xiv) have
been delivered to it, at the expense of the Depositor, (1) prepare and record
(a) each Assignment of Mortgage referred to in Section 2.01(a)(iii) which has
not yet been submitted for recording and (b) each Reassignment of Assignment of
Leases, Rents and Profits referred to in Section 2.01(a)(viii) (if not otherwise
included in the related Assignment of Mortgage) which has not yet been submitted
for recordation; and (2) prepare and file each UCC-2 or UCC-3 financing
statement referred to in Section 2.01(a)(v) or (xiii) which has not yet been
submitted for filing. The Trustee shall upon delivery promptly prepare and
submit (and in no event later than 30 Business Days following the receipt of the
related documents in the case of clause 1(a) above and 60 days following the
receipt of the applicable documents in the case of clauses 1(b) and 2 above) for
recording or filing, as the case may be, in the appropriate public recording
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the Trustee, at the expense of
the Depositor, shall use its best efforts to promptly prepare a substitute
document for signature by the Depositor or the related Mortgage Loan Seller, as
applicable, and thereafter the Trustee shall cause each such document to be duly
recorded. The Trustee shall promptly upon receipt of the original recorded copy
(and in no event later than five Business Days following such receipt) deliver
such original to the Custodian and a copy of such recorded document to the
Servicer. Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains the original
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, after any has been recorded, the obligations
hereunder of the Depositor shall be deemed to have been satisfied upon delivery
to the Custodian of a copy of such Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable,
certified by the public recording office to be a true and complete copy of the
recorded original thereof. If a pro forma title insurance policy has been
delivered to the Custodian in lieu of an original title insurance policy, the
Depositor will promptly deliver to the Custodian the related original title
insurance policy upon receipt thereof with a copy to the Servicer. The Depositor
shall promptly cause the UCC-1's referred to in Section 2.01(a)(v) to be filed
in the applicable public recording office and upon filing will promptly deliver
to the Custodian the related UCC-1, with evidence of filing thereon with a copy
to the Servicer. The Depositor shall reimburse the Trustee for all out-of-pocket
expenses incurred and filing fees paid by the Trustee in connection with its
obligations under this paragraph. Copies of recorded or filed Assignments,
Reassignments, UCC-1's and UCC-3's shall be delivered to the Trustee by the
Depositor or Servicer, as applicable.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Depositor, the Trustee
or the Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
(b) Each of the Split Loans is secured by a Mortgaged Property
which serves as security for the Split Note and the related Other Note. The
Other Note or Other Notes are included in trust funds (the "Other Trust Funds")
created in connection with issuance of separate series of commercial mortgage
pass-through certificates. Each Split Note is a pari passu note with the related
Other Note, and each is entitled to payments made by the respective Borrower and
other amounts received in respect of the related Mortgaged Property pro rata on
the basis of amounts owing under the Split Note and the Other Note.
(c) The Depositor, concurrently with the execution and delivery
hereof, does hereby sell, transfer, assign, set over and otherwise convey to the
Trustee without recourse (except to the extent herein provided) all the right,
title and interest of the Depositor in, to and under the Loan REMIC Interests
and the Loan REMIC Declarations. The Trustee shall administer each of the Loan
REMICs in accordance with Section 4.04(b) hereof.
Section 2.02 Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified recorded
document described in Section 2.01 on the Closing Date, the Depositor shall use
its best efforts, promptly upon receipt thereof and in any case not later than
45 days (except for the original Note endorsed in blank which shall be delivered
on the Closing Date) from the Closing Date, to deliver such original or
certified recorded documents to the Custodian (unless the Depositor is delayed
in making such delivery by reason of the fact that such documents shall not have
been returned by the appropriate recording office in which case it shall notify
the Custodian and the Trustee in writing of such delay and shall deliver such
documents to the Custodian promptly upon the Depositor's receipt thereof). By
its execution and delivery of this Agreement, the Trustee acknowledges the
assignment to it of the Mortgage Loans and the Loan REMIC Interests in good
faith without notice of adverse claims and declares that the Custodian holds and
will hold such documents and all others delivered to it constituting the
Mortgage File (to the extent the documents constituting the Mortgage File are
actually delivered to the Custodian) for any Mortgage Loan assigned to the
Trustee hereunder in trust, upon the conditions herein set forth, for the use
and benefit of all present and future Certificateholders. With the exception of
any Notes listed by the Trustee on an exception report and delivered to the
Depositor on the Closing Date, the Trustee hereby acknowledges the receipt of
the Notes. The Trustee agrees to review each Mortgage File within 60 days after
the later of (a) the Trustee's receipt of such Mortgage File or (b) execution
and delivery of this Agreement, to ascertain that all documents (other than
documents referred to in clause (ix) of Section 2.01(a) which shall be delivered
to the Servicer) referred to in Section 2.01 above (in the case of the documents
referred to in Section 2.01(a)(iv), (v), (vi), (vii) (in the case of any
endorsement thereto), (viii), (x) through (xiv), (xvi) and (xvii), as identified
to it in writing by the Depositor) and any original recorded documents referred
to in the first sentence of this Section included in the delivery of a Mortgage
File have been received, have been executed, appear to be what they purport to
be, purport to be recorded or filed (as applicable) and have not been torn,
mutilated or otherwise defaced, and that such documents relate to the Mortgage
Loans identified in the Mortgage Loan Schedule. In so doing, the Trustee may
rely on the purported due execution and genuineness of any such document and on
the purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, appear
not to be what they purport to be or have been torn, mutilated or otherwise
defaced, the Trustee shall promptly so notify the Depositor and the related
Mortgage Loan Seller by providing a written report, setting forth for each
affected Mortgage Loan, with particularity, the nature of the defective or
missing document with a copy to the Servicer. The Depositor shall, or shall
cause the applicable Mortgage Loan Seller to, deliver an executed, recorded or
undamaged document, as applicable, or, if the failure to deliver such document
in such form has a material adverse effect on the security provided by the
related Mortgaged Property, the Depositor shall, or shall cause the responsible
Mortgage Loan Seller, or, in the event CCA shall fail to act, shall cause NHA to
repurchase the related Mortgage Loan in the manner provided in Section 2.03.
None of the Servicer, the Special Servicer and the Trustee shall be responsible
for any loss, cost, damage or expense to the Trust Fund resulting from any
failure to receive any document constituting a portion of a Mortgage File noted
on such a report or for any failure by the Depositor to use its best efforts to
deliver any such document.
In reviewing any Mortgage File pursuant to the preceding paragraph
or Section 2.01, the Servicer shall have no responsibility to cause the Trustee
to, and the Trustee will have no responsibility to, determine whether any
document or opinion is legal, valid, binding or enforceable, whether the text of
any assignment or endorsement is in proper or recordable form (except, if
applicable, for the Trustee to determine if the Trustee is the assignee or
endorsee), whether any document has been recorded in accordance with the
requirements of any applicable jurisdiction, whether a blanket assignment is
permitted in any applicable jurisdiction, or whether any Person executing any
document or rendering any opinion is authorized to do so or whether any
signature thereon is genuine.
The Trustee shall hold that portion of the Trust Fund delivered to
the Trustee consisting of "instruments" (as such term is defined in Section
9-105(i) of the Uniform Commercial Code as in effect in Illinois on the date
hereof) in Illinois and, except as otherwise specifically provided in this
Agreement, shall not remove such instruments from Illinois, as applicable,
unless it receives an Opinion of Counsel (obtained and delivered at the expense
of the Person requesting the removal of such instruments from Illinois) that in
the event the transfer of the Mortgage Loans to the Trustee is deemed not to be
a sale, after such removal, the Trustee will possess a first priority perfected
security interest in such instruments.
Section 2.03 Representations, Warranties and Covenants of
the Depositor.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware;
(ii) The Depositor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated
hereby, including, but not limited to, the power and authority
to sell, assign and transfer the Mortgage Loans in accordance
with this Agreement;
(iii) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor and assuming the due
authorization, execution and delivery of this Agreement by
each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid
and binding obligations of the Depositor, enforceable in
accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other
similar laws relating to or affecting creditors' rights
generally, or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will
not conflict with any provision of its certificate of
incorporation or bylaws, or any law or regulation to which the
Depositor is subject, or conflict with, result in a breach of
or constitute a default under (or an event which with notice
or lapse of time or both would constitute a default under) any
of the terms, conditions or provisions of any agreement or
instrument to which the Depositor is a party or by which it is
bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the
Depositor's assets or property, which would materially and
adversely affect the ability of the Depositor to carry out the
transactions contemplated by this Agreement. The Depositor has
obtained any consent, approval, authorization or order of any
court or governmental agency or body required for the
execution, delivery and performance by the Depositor of this
Agreement;
(v) The certificate of incorporation of the Depositor provides
that the Depositor is permitted to engage in only the
following activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge,
finance, refinance and otherwise deal with (I) loans
secured by first or second mortgages, deeds of trust or
similar liens on residential, including single-family
and multi-family, commercial or mixed commercial and
residential properties, shares issued by private
non-profit housing corporations, or manufactured housing
contracts, (II) any participation interest in, security
(in bond or pass-through form) or funding agreement
based on, backed or collateralized by, directly or
indirectly, any of the foregoing (the loans described in
clause (A)(I) and the participation interests,
securities and funding agreements described in clause
(A)(II), collectively, "Mortgage Loans"), (III)
receivables and loan obligations, whether secured or
unsecured, including, but not limited to, retail
automotive, truck or manufactured housing installment
sale contracts or loans or automotive, truck or
manufactured housing leases, consumer or commercial
loans or leases, credit card accounts, accounts
receivable, corporate receivables, trade receivables,
trade bills, boat and recreational vehicle loans,
computer or other equipment loans or leases, mobile home
loans and pads, construction equipment, dealer and floor
plan financing notes, insurance policy loans, medical
and health care receivables, municipal and other
governmental leases, short-term notes secured by a lien
on a small business or all or part of its assets, and
loans to lesser-developed countries, (IV) any
participation interest in, security (in bond or
pass-through form) or funding agreement based on, backed
or collateralized by, directly or indirectly, any of the
foregoing (the receivables and loans described in clause
(A)(III) and the participation interests, securities and
funding agreements described in clause (A)(IV),
collectively, "Receivables");
(B) to authorize and issue one or more series (each, a
"Pass-Through Series") of pass-through securities
("Certificates") pursuant to pooling and servicing
agreements (each, a "Pooling and Servicing Agreement"),
each of which Pass-Through Series (I) represents an
ownership interest in Mortgage Loans or Receivables,
related property and/or collections in respect thereof
and (II) may be structured to contain one or more
classes of Certificates, each class having the
characteristics specified in the related Pooling and
Servicing Agreement, and to acquire, own, hold, sell,
transfer, assign, pledge, finance or refinance one or
more Certificates or classes of Certificates of any
Pass-Through Series;
(C) to establish one or more trusts ("Trusts") to issue,
acquire, own, and hold one or more series (each, a "Bond
Series") of debt obligations ("Bonds"), each issued
pursuant to an indenture ("Indenture"), each of which
bond series (I) is collateralized by Mortgage Loans,
receivables and any supplemental collateral (the
"Supplemental Collateral"; Mortgage Loans, Receivables
and Supplemental Collateral, collectively, the
"Collateral") and/or related property and/or collections
in respect thereof and (II) may be structured to contain
one or more classes of Bonds, each class having the
characteristics specified in the related Indenture, and
to acquire, own, hold, sell, transfer, assign, pledge,
finance or refinance one or more Bonds or classes of
Bonds of any Bond Series; provided, however, that the
Bonds of any Bond Series have been rated in one of the
two highest rating categories by one or more nationally
recognized statistical rating agencies and, provided
further, that the Bonds of any Bond Series other than
the initial Bond Series issued by a Trust have been
rated in the same or a higher rating category by the
nationally recognized statistical rating agency or
agencies that rated the initial Bond Series issued by
such Trust;
(D) to issue, acquire, assume, own, hold, sell, transfer,
assign, pledge and finance indebtedness that (I) is
subordinated to the Bonds; (II) is nonrecourse to the
Depositor and the related Trust other than to cash flow
on the Collateral securing a Bond Series issued by the
related Trust in excess of amounts necessary to pay
holders of Bonds ("Bondholders") of such Bond Series;
(III) does not constitute a claim against the Depositor
to the extent that funds are insufficient to pay such
indebtedness; and (IV) does not result in a reduction,
withdrawal or qualifying of the rating or ratings then
assigned to the Bonds of any Bond Series issued by the
Trust issuing such subordinated indebtedness, as
confirmed in writing by the nationally recognized
statistical rating agency or agencies rating such Bond
Series;
(E) (I) to establish one or more Trusts to engage in any one
or more of the activities described in (A) and (D)
above, each of which Trusts and any Trust formed to
engage in one or more of the activities described in (C)
above may deliver to the Depositor Certificates ("Trust
Certificates") representing the ownership interest in
the assets of such Trust, (II) to acquire, own, hold,
sell, transfer, assign, pledge, finance, and otherwise
deal with any or all of the Trust Certificates in any
Trust that it establishes and (III) to act as settlor or
depositor of such Trusts and to invest in or sell Trust
Certificates; and
(F) to engage in any other acts and activities and to
exercise any powers permitted to corporations under the
laws of the State of Delaware which are incidental to,
or connected with, the foregoing, and necessary,
suitable or convenient to accomplish any of the
foregoing;
(vi) The certificate of incorporation further provides that the
Depositor:
(A) will (1) maintain and prepare financial reports,
financial statements, books and records and bank
accounts separate from those of its affiliates and any
other person or entity and (2) will not permit any
affiliate or any other person or entity independent
access to its bank accounts;
(B) will not commingle the funds and other assets of the
Depositor with those of any affiliate, any guarantor of
any of the obligations of the Depositor (each, a
"Guarantor"), or any affiliate of any Guarantor, or any
other person or entity;
(C) shall conduct its own business and hold all of its
assets in its own name;
(D) shall remain solvent and pay its debts and liabilities
(including employment and overhead expenses) from its
assets as the same shall become due;
(E) shall do all things necessary to observe corporate and
other organizational formalities and preserve its
existence as a single-purpose, bankruptcy-remote entity
in accordance with the standards of the statistical
rating organizations providing ratings on any
Certificates, as such standards are in effect on the
date of issuance of such Certificates;
(F) shall enter into transactions with affiliates only if
each such transaction is commercially reasonable and on
substantially similar terms as a transaction that would
be entered into on an arm's length basis with a person
or entity other than an affiliate of the Depositor;
(G) shall compensate each of its consultants and agents from
its own funds for services provided to it;
(H) shall not guarantee, become obligated for, or hold
itself or its credit out to be responsible for, or
available to satisfy, the debts or obligations of any
other person or entity or the decisions or actions
respecting the daily business or affairs of any other
person or entity;
(I) shall not (1) acquire obligations or securities of any
affiliate or any of the stockholders of the Depositor or
(2) buy or hold any evidence of indebtedness issued by
any other person or entity, other than cash,
investment-grade securities, Receivables and notes
evidencing the indebtedness of a borrower under the
related Loan;
(J) will allocate fairly and reasonably and pay from its own
funds the cost of (1) any overhead expenses (including
the cost of any office space) shared with any affiliate
of the Depositor and (2) any services (such as asset
management, legal and accounting) that are provided
jointly to the Depositor and one or more of its
affiliates;
(K) will maintain and utilize separate stationery and
invoices bearing its own name and allocate separate
office space (which may be a separately identified area
in office space shared with one or more affiliates) and
maintain a separate sign in the office directory of the
building in which the Depositor maintains its principal
place of business;
(L) shall not make any loans or advances to, or pledge its
assets for the benefit of, any other person or entity,
including, without limitation, any affiliate, Guarantor
or any affiliate of any Guarantor;
(M) will be, and at times will hold itself out to the public
as, a legal entity separate and distinct from any other
person or entity;
(N) shall not identify itself or any of its affiliates as a
division or part of any other person or entity;
(O) will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its
size and character and in light of its contemplated
business operations;
(P) shall maintain its assets in such a manner that it will
not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any
affiliate, any Guarantor, or any affiliate of any
Guarantor, or any other person or entity;
(Q) shall not incur any indebtedness, other than
indebtedness incurred in the ordinary course of the
Depositor's business, or grant a security interest of
any nature whatsoever in the Depositor's assets, other
than pursuant to, or as set forth in, any documents
relating to the issuance of the Certificates or Bonds;
and
(R) shall not (1) transfer, lease or sell, in one
transaction or any combination of transactions, all or
substantially all of the properties or assets of the
Depositor other than the transfer of Mortgage Loans or
Receivables to a trust in connection with the issuance
of Certificates or Bonds or in connection with a sale of
Receivables, Mortgage Loans or other securities in the
ordinary course of the Depositor's business, (2) merge
or consolidate with or into any other business entity,
(3) dissolve, wind up or liquidate or take any act or
omission as a result of which the Depositor would be
dissolved, wound up or liquidated, in whole or in part,
(4) engage in any business activity not described in
Article III hereof, or (5) amend, modify, terminate or
waive the Certificate of Incorporation or by-laws of the
Depositor unless, with respect to the foregoing clauses
(1) through (5), the Depositor shall have received
written confirmation from each of the statistical rating
organizations providing ratings on any Certificates or
Bonds on the date of issuance of such Certificates or
Bonds that such action, in and of itself, will not cause
such statistical rating organization to qualify,
downgrade or withdraw any of its then-current rating for
any Certificate or Bond.
Capitalized terms defined in clauses (v) and (vi) shall apply only
to clauses (v) and (vi).
(vii) There is no action, suit or proceeding pending against the
Depositor in any court or by or before any other governmental
agency or instrumentality which would materially and adversely
affect the ability of the Depositor to carry out its
obligations under this Agreement; and
(viii)The Trustee, if not the owner of the related Mortgage Loan,
will have a valid and perfected security interest of first
priority in each of the Mortgage Loans and any proceeds
thereof.
(b) The Depositor hereby represents and warrants with respect
to each Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the
Trustee: (a) the Note and the Mortgage were not subject to an
assignment or pledge, and (b) the Depositor had good title to,
and was the sole owner of, the Mortgage Loan and had full
right to transfer and sell the Mortgage Loan to the Trustee
free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest;
(ii) The Depositor is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan;
(iii) The related Assignment of Mortgage constitutes the legal,
valid and binding assignment of such Mortgage from the
Depositor to the Trustee, and any related Reassignment of
Assignment of Leases, Rents and Profits constitutes the legal,
valid and binding assignment from the Depositor to the
Trustee;
(iv) No claims have been made by the Depositor under the lender's
title insurance policy, and the Depositor has not done, by act
or omission, anything which would impair the coverage of such
lender's title insurance policy;
(v) All of the representations and warranties of the Mortgage Loan
Sellers contained in the Mortgage Loan Purchase and Sale
Agreements are true and correct as of the Cut-off Date;
(vi) (1) Such Mortgage Loan is directly secured by a Mortgage on
Real Property, and (2) either (i) substantially all of the
proceeds of such Mortgage Loan were used to acquire or improve
or protect an interest in Real Property that, at the
origination date, was the only security for the Mortgage Loan
(in the case of a Mortgage Loan that has not been modified in
a manner that constituted a deemed exchange under Section 1001
of the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not reasonably
foreseeable) or (ii) the fair market value of such Real
Property was at least equal to 80% of the principal amount of
the Mortgage Loan (a) at origination (or, if the Mortgage Loan
has been modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time when the
Mortgage Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last
such modification) or (b) at the Closing Date; provided that
for purposes of this clause (ii) the fair market value of the
Real Property interest must first be reduced by (A) the amount
of any lien on the Real Property interest that is senior to
the Mortgage Loan (unless such senior lien also secures a
Mortgage Loan, in which event the computation described in (a)
and (b) of this clause (ii) shall be made on an aggregate
basis) and (B) a proportionate amount of any lien that is in
parity with the Mortgage Loan (unless such other lien secures
a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in (a)
and (b) of this clause (ii) shall be made on an aggregate
basis);
(vii) The information set forth with respect to such Mortgage Loan
on the Mortgage Loan Schedule is true and correct in all
material respects as of the dates respecting which such
information is given, or if no date is specified, as of the
Cut-off Date;
(viii)The acquisition of any Other Note by an Other Trust Fund will
not result in a qualification, withdrawal or downgrade of any
rating assigned to the Certificates; and
(ix) With respect to each Other Mortgage Loan, the Other Servicer
and Other Special Servicer are parties to pooling and
servicing agreements, copies of which have previously been
delivered to the Servicer.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive delivery of the
respective Mortgage Files to the Trustee until the termination of this
Agreement, and shall inure to the benefit of the Certificateholders, the
Trustee, the Special Servicer and the Servicer, and shall not be affected or
diminished by any limitation in any assignment, endorsement or allonge relating
to any document in such Mortgage File.
(d) Upon discovery by the Custodian, the Servicer, the Special
Servicer or the Trustee of a breach of the representation and warranty set forth
in Section 2.03(b)(vi) or that any Mortgage Loan otherwise fails to constitute a
Qualified Mortgage, such Person shall give prompt notice thereof to the related
Mortgage Loan Seller, the Special Servicer, the Depositor and the Rating
Agencies as soon as practical after its receipt of such notice, and the
Depositor shall correct such condition or repurchase or cause (i) the
responsible Mortgage Loan Seller or (ii) in the event CCA, as Mortgage Loan
Seller shall fail to act, NHA, to repurchase such Mortgage Loan at the
Repurchase Price within 90 days of such party's discovery of such failure; it
being understood and agreed that none of such Persons has an obligation to
conduct any investigation with respect to such matters. It is understood and
agreed that the obligations of the Depositor set forth in this Section 2.03(d)
to cure or repurchase a Mortgage Loan which fails to constitute a Qualified
Mortgage shall be the sole remedies available to the Trustee against the
Depositor respecting a breach of a representation or warranty set forth in
Section 2.03(b)(vi).
(e) Upon discovery by the Custodian, the Servicer, the Special
Servicer or the Trustee of a breach of a representation or warranty of the
Mortgage Loan Sellers in the Mortgage Loan Purchase and Sale Agreements to the
extent set forth therein with respect to any Mortgage Loan, or that any document
required to be included in the Mortgage File does not conform to the
requirements of Section 2.01, such Person shall give prompt notice thereof to
the appropriate Mortgage Loan Seller, the Depositor, the Special Servicer and
the Rating Agencies, and such Mortgage Loan Seller shall, to the extent such
Mortgage Loan Seller is obligated to cure or repurchase the related Mortgage
Loan under the terms of the related Mortgage Loan Purchase and Sale Agreement,
either cure such breach or repurchase said Mortgage Loan at the Repurchase Price
within 90 days of the receipt of notice of the breach as provided in the related
Mortgage Loan Purchase and Sale Agreement; it being understood and agreed that
none of the Custodian, the Servicer, the Special Servicer, and the Trustee has
an obligation to conduct any investigation with respect to such matters (except,
in the case of the Mortgage Files, to the extent provided in Section 2.01);
provided, however, that in the event that such breach is capable of being cured
as determined by the Servicer, or the Special Servicer, as applicable, but not
within such 90 day period and the appropriate Mortgage Loan Seller has commenced
and is diligently proceeding with the cure of such breach within such 90 day
period (other than a breach that is also a breach of Section 2.03(b)(vi) or
2.03(d)), the appropriate Mortgage Loan Seller shall have an additional 90 days
to complete such cure; provided, further, that with respect to such additional
90 day period the appropriate Mortgage Loan Seller shall have delivered an
officer's certificate to the Trustee, the Servicer and the Special Servicer
setting forth the reason such breach is not capable of being cured within the
initial 90 day period and what actions the Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates that such breach will be cured within the additional 90 day period;
and, provided, further, the Repurchase Price shall include interest on any
Advances made in respect of the related Mortgage Loan. Any out-of-pocket
expenses incurred by the Servicer or Special Servicer pursuant to this Section
2.03(e), and which have not been previously reimbursed, and which in the good
faith business judgment of the Servicer or Special Servicer would not be
ultimately recoverable under clause (iv) of the definition of Repurchase Price
shall otherwise be payable by the Mortgage Loan Seller (and if not paid by the
Mortgage Loan Seller within 30 days of the request for payment by the Servicer,
the cost thereof shall constitute a Property Advance).
(f) In connection with repurchase of the Henry W. Oliver Loan or
the Geneva Crossing Loan pursuant to or as contemplated by Section 2.03(d) or
Section 2.03(e), the Trustee shall effect a "qualified liquidation" of the
related Loan REMIC in accordance with the REMIC Provisions.
(g) Upon receipt by the Servicer from the Depositor or appropriate
Mortgage Loan Seller of the Repurchase Price for the repurchased Mortgage Loan,
the Servicer shall deposit such amount in the Collection Account, and the
Trustee, pursuant to Section 3.11, shall, upon receipt of a certificate of a
Servicing Officer certifying as to the receipt by the Servicer of the Repurchase
Price and the deposit of the Repurchase Price into the Collection Account
pursuant to this Section 2.03(g), release or cause to be released to the
Depositor or the appropriate Mortgage Loan Seller the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as shall be prepared by the
Servicer to vest in the Depositor or the appropriate Mortgage Loan Seller any
Mortgage Loan released pursuant hereto, and any rights of the Depositor in, to
and under the Mortgage Loan Purchase and Sale Agreement as it related to such
Mortgage Loan that was initially transferred to the Trust Fund under Section
2.01, and if applicable any rights of CCA or Depositor in, to and under the
related Bloomfield Purchase Agreement as it related to such Mortgage Loan that
were initially transferred to the Trust Fund under Section 2.01, and the Trustee
and the Servicer shall have no further responsibility with regard to such
Mortgage File. Any out-of-pocket expenses incurred by the Servicer pursuant to
this Section 2.03(g), and which have not been previously reimbursed, and which
in the good faith business judgment of the Servicer would not be ultimately
recoverable under clause (iv) of the definition of Repurchase Price shall
otherwise be payable by the Mortgage Loan Seller (and if not paid by the
Mortgage Loan Seller within 30 days of the request for payment by the Servicer,
the cost thereof shall constitute a Property Advance).
(h) In the event that any Mortgage Loan Seller incurs any expense
in connection with curing a breach of a representation or warranty pursuant to
Section 2.03(e) which also constitutes a default under the related Mortgage
Loan, such Mortgage Loan Seller shall have a right, subrogated to that of the
Trustee, as successor to the mortgagee, to recover the amount of such expenses
from the related Borrower. The Servicer shall use reasonable efforts in
recovering, or assisting such Mortgage Loan Seller in recovering, from the
related Borrower the amount of any such expenses. Any out-of-pocket expenses
incurred by the Servicer pursuant to this Section 2.03(h), and which have not
been previously reimbursed, and which in the good faith business judgment of the
Servicer would not be ultimately recoverable under clause (iv) of the definition
of Repurchase Price shall otherwise be payable by the Mortgage Loan Seller (and
if not paid by the Mortgage Loan Seller within 30 days of the request for
payment by the Servicer, the cost thereof shall constitute a Property Advance).
(i) In the event that any litigation is commenced which alleges
facts which, in the judgment of the Depositor, could constitute a breach of any
of the Depositor's representations and warranties relating to the Mortgage
Loans, the Depositor hereby reserves the right to conduct the defense of such
litigation at its expense.
(j) If for any reason any Mortgage Loan Seller or the Depositor
fails to fulfill its obligations under this Section 2.03 with respect to any
Mortgage Loan, the Servicer or Special Servicer, as applicable, shall use
reasonable efforts in enforcing any obligation of the applicable Mortgage Loan
Seller (or NHA on behalf of CCA, as Mortgage Loan Seller) to cure or repurchase
such Mortgage Loan under the terms of the related Mortgage Loan Purchase and
Sale Agreement. Any out-of-pocket expenses incurred by the Servicer pursuant to
this Section 2.03(j), and which have not been previously reimbursed, and which
in the good faith business judgment of the Servicer would not be ultimately
recoverable under clause (iv) of the definition of Repurchase Price shall
constitute a Property Advance hereunder.
(k) The Depositor additionally represents, warrants and covenants
that:
(i) The Depositor will at all times maintain its valid corporate
existence in good standing under the laws of the state of its
incorporation. The Depositor has otherwise complied and will
comply in all respects with the laws of the state of its
incorporation, and with all other laws, federal, state, or
otherwise, insofar as they are related to its separate
corporate existence, and it will observe all requisite
corporate formalities.
(ii) Although all directors and officers of the Depositor, except
any director who is Independent, are directors, officers, or
employees of CCA and/or Nomura Securities International, Inc.
("NSI"), such persons have not directly received, and will not
directly receive, any remuneration from the Depositor for
serving as directors or officers of the Depositor. The
Depositor is charged and pays a fair estimate, adjusted every
six months, of payroll and related expenses for work and
services performed by the directors, officers, and employees
of CCA or NSI for services performed as directors or officers
of the Depositor. The officers and directors of the Depositor,
when acting in such capacity, act in the best interests of the
Depositor, consistent with their fiduciary duties as directors
and officers of such corporation. The Depositor is not
obligated to pay or distribute to CCA or any of its
Affiliates, by dividend or otherwise, any portion of any of
its profits or its other assets. The Depositor's profits, if
any, may, at the discretion of the Depositor's Board of
Directors and subject to applicable law, be transferred by
dividend to the Depositor's shareholder(s), which is presently
CCA.
(iii) The Depositor maintains its business in separately allocated
and identifiable office space within the offices of its
Affiliates in New York City. The Depositor's presence at such
offices is noted in the building directory and on other signs.
As set forth above in connection with payroll expenses, the
Depositor is charged and pays rent in an amount corresponding
to the portion of the office space allocated to the Depositor.
(iv) The Depositor has a telephone number different from any
telephone numbers of CCA and NSI or any of their Affiliates.
The Depositor uses its own stationery that indicates its
separate telephone number and identifies it as a separate
corporate entity.
(v) The Depositor shall not fail to correct any known
misunderstanding regarding the separate identity of the
Depositor, or purport to operate as an integrated, single
economic unit with any of its Affiliates in dealing with any
unaffiliated entity. Neither the Mortgage Loan Sellers nor NSI
finance the Depositor's operations or guarantees the
Depositor's obligations (other than with respect to NHA's
obligations under the Underwriting Agreement, dated October
15, 1999 among the Depositor, NHA, CCA and the Underwriters),
and the Depositor does not finance the operations or guarantee
the obligations of the Mortgage Loan Sellers or NSI; provided,
however, that CCA has made capital contributions to the
Depositor, and may make additional capital contributions from
time to time in connection with the expansion of the
Depositor's business or to enable the Depositor to invest in
privately-offered Certificates. However, CCA does not pay or
subsidize any of the Depositor's normal operating expenses.
The Depositor will pay from its own funds its operating
expenses and liabilities, including legal fees and expenses,
or will reimburse the Mortgage Loan Sellers or NSI for any
such expenses or liabilities paid by the Mortgage Loan Sellers
or NSI on the Depositor's behalf. To facilitate the
registration process, CCA and/or NSI has advanced and may
advance certain expenses of the Depositor associated with the
registration process. The Depositor has repaid or will repay
to CCA and/or NSI these expenses on an allocable basis out of
the proceeds of mortgage pass-through transactions. Neither
the Mortgage Loan Sellers nor NSI have funded or will fund the
Depositor's operating expenses. The assets or creditworthiness
of the Mortgage Loan Sellers, NSI or any of their Affiliates
are not held out by the Depositor as being available for the
payment of the Depositor's liabilities or obligations, and the
assets or creditworthiness of the Depositor are not held out
by the Depositor as being available for the payment of the
liabilities of the Mortgage Loan Sellers, NSI or any of their
Affiliates other than the Depositor. The assets or
creditworthiness of the Depositor are not held out by the
Mortgage Loan Sellers or NSI, to the knowledge of the
Depositor, and the Depositor will not permit that its assets
or creditworthiness will be held out by the Mortgage Loan
Sellers or NSI, as being available for the payment of the
liabilities or obligations of the Mortgage Loan Sellers, NSI
or any of their Affiliates. The assets or creditworthiness of
the Mortgage Loan Sellers, NSI or any of their Affiliates are
not held out by the Mortgage Loan Sellers or NSI, to the
knowledge of the Depositor, and the Depositor will not permit
that the assets or creditworthiness of the Mortgage Loan
Sellers or NSI will be held out by the Mortgage Loan Sellers
or NSI, as being available for the payment of the liabilities
of the Depositor. The Depositor's assets are now, and are
expected in the future to be, sufficient to pay the
Depositor's ongoing expenses as they are incurred and to
discharge all of the Depositor's liabilities in the event that
the business of the Depositor is required to be liquidated.
(vi) The separate corporate existence of the Depositor is not used
by either the Depositor, or, to the knowledge of the
Depositor, by the Mortgage Loan Sellers or NSI, and the
Depositor will not permit that its separate corporate
existence will be used by the Mortgage Loan Sellers or NSI, to
abuse creditors or to perpetrate a fraud, injury, or injustice
on creditors.
(vii) The Depositor's existence is not dependent on it being a
subsidiary of CCA or an Affiliate of NSI and it is expected
that the Depositor would be able to maintain its business and
affairs even if it were not a subsidiary of CCA or an
Affiliate of NSI. To the knowledge of the Depositor, CCA's
existence is not dependent on the Depositor being its
subsidiary and it is expected that CCA would be able to
maintain its business and affairs even if the Depositor were
not its subsidiary. To the knowledge of the Depositor, the
Mortgage Loan Sellers' existence is not dependent on the
Depositor being their Affiliate and it is expected that NSI
would be able to maintain its business and affairs even if the
Depositor were not its Affiliate. The Depositor conducts its
business separate and apart from the business conducted by any
other person or entity.
(viii)The Depositor maintains corporate records distinct and
separately identifiable from the corporate records of the
Mortgage Loan Sellers, NSI and any other person or entity. The
Depositor prepares monthly financial records distinct and
separately identifiable from the financial records of the
Mortgage Loan Sellers, NSI or any of their Affiliates. These
statements and reports are prepared and maintained in
accordance with generally accepted accounting principles,
susceptible to audit and audited, at least annually, in
connection with the audit of the Depositor and its Affiliates
on a consolidated basis by independent public accountants in
accordance with generally accepted auditing standards. Such
consolidated financial statements will henceforth indicate
that the assets of the Depositor are not available to satisfy
the creditors of any entity other than the Depositor. The
Depositor keeps its funds separate and apart from the funds of
the Mortgage Loan Sellers, NSI and any of their Affiliates,
and its other assets are separately identifiable and
distinguishable from the assets of the Mortgage Loan Sellers,
NSI and any of their Affiliates.
(ix) The Depositor acts solely in its own corporate name and solely
through its duly authorized officers or agents. The Depositor
complies with the provisions of its Certificate of
Incorporation and its By-Laws and complies in all material
respects, in connection with its separate existence, with the
laws of the state in which it is incorporated. In addition,
the sole shareholder and the Board of Directors of the
Depositor hold all such meetings or execute consents necessary
to authorize corporate action by the Depositor, and the
Depositor maintains appropriate minutes of such meetings or
records of its written consents. The Depositor observes all
requisite corporate formalities.
(x) All transactions between the Mortgage Loan Sellers or NSI (or
any of their Affiliates), on the one hand, and the Depositor,
on the other, are, and will be, duly authorized and
documented, and recorded accurately in the appropriate books
and records of the Depositor, and to the knowledge of the
Depositor, in the appropriate books and records of the
Mortgage Loan Sellers or NSI, if the Mortgage Loan Sellers or
NSI is a party to such transaction. All such transactions are
fair to each party, constitute exchanges for fair
consideration and for reasonably equivalent value, and are
made in good faith and without any actual intent to hinder,
delay, or defraud creditors. The Depositor will not take any
action, and will not engage in transactions with the Mortgage
Loan Sellers, NSI or any of their Affiliates unless the
respective Boards of Directors or officers, as applicable, of
the Depositor and the Mortgage Loan Sellers or NSI, if the
Mortgage Loan Sellers or NSI, respectively, is a party to such
transaction, determine in a reasonable fashion that such
actions or transactions are in their respective companies'
best interests.
(xi) The Depositor intends the transfer of the Mortgage Loans from
the Mortgage Loan Sellers to the Depositor pursuant to the
Mortgage Loan Purchase and Sale Agreements to be a sale of the
Mortgage Loans. The Depositor intends the transfer of the
Mortgage Loans from the Depositor to the Trustee pursuant to
this Agreement, and the transfer of certain of the
Certificates to NSI (all Certificates so transferred, the "NSI
Certificates"), to be sales from the Depositor to the Trustee
(the "Depositor/Trustee Transfer") and from the Depositor to
NSI (the "Depositor/NSI Transfer"), respectively. The
Depositor will treat the transfer of the Mortgage Loans, the
Depositor/Trustee Transfer and the Depositor/NSI Transfer as
sales for accounting and tax purposes. The purchase prices for
the Mortgage Loans and the NSI Certificates reflect the good
faith determinations of the Depositor of the fair market value
of the Mortgage Loans and the NSI Certificates, respectively,
and are equal to the prices that the Depositor believes would
be paid in sales of the Mortgage Loans or the NSI Certificates
between non-affiliated entities. No provision exists whereby
such consideration may be modified subsequent to closing, and
the Depositor has no obligation to repay such consideration,
or interest thereon, to the Trustee or NSI, as applicable. The
Depositor will receive the consideration for the NSI
Certificates.
(xii) The Depositor irrevocably transfers and relinquishes all
rights with respect to the Mortgage Loans and, specifically,
has no right to sell, pledge or otherwise dispose of the
Mortgage Loans. Subject to the terms of this Agreement, the
Trustee is free to deal with the Mortgage Loans as trustee of
trust property on behalf of the Certificateholders. The
Depositor transfers the Mortgage Loans without recourse and
has no obligation to deliver other property to the Trustee
either in substitution for or in addition to the Mortgage
Loans in the event of a credit loss or decline in value of the
Mortgage Loans. The Depositor has no right to transfer the
Mortgage Loans back to the Mortgage Loan Sellers.
(xiii)The Depositor has not transferred the Mortgage Loans in
contemplation of insolvency or with a design to prefer one or
more creditors to the exclusion in whole or in part of others
or with an actual intent to hinder, delay or defraud any of
its creditors.
(xiv) The assets of the Depositor are now, and are expected in the
future to be, sufficient to pay the ongoing business expenses
of the Depositor as they are incurred and to discharge all of
its liabilities in the event that the business of the
Depositor is required to be liquidated.
(xv) The property remaining in the hands of the Depositor after
giving effect to the Transfers is not an unreasonably small
amount of capital for the business in which the Depositor is
engaged.
In the case of the Geneva Crossing Loan and the Henry W. Oliver Loan, such
representations, warranties and covenants shall also apply to the related Loan
REMIC Regular Interests.
Section 2.04 Representations, Warranties and Covenants of
the Servicer, Special Servicer and Trustee.
(a) The Servicer, as Servicer, hereby represents, warrants and
covenants to the other parties hereto and for the benefit of the
Certificateholders, that as of the Closing Date or as of such date specifically
provided herein:
(i) The Servicer is duly organized, validly existing and in good
standing as a limited liability company under the laws of the
State of Delaware, and the Servicer is in compliance with laws
of each state in which any Mortgaged Property is located to
the extent necessary to perform it obligations under this
Agreement;
(ii) The execution and delivery of this Agreement by the Servicer,
and the performance and compliance with the terms of this
Agreement by the Servicer, will not violate the 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 Servicer's good faith and reasonable judgement, is likely
to materially and adversely affect either the ability of the
Servicer to perform its obligations under this Agreement or
the financial condition of the Servicer;
(iii) The 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 Servicer,
enforceable against the 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 Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a
violation of, any law, any order, regulation or demand of any
federal, state or local governmental or regulatory authority,
which violation, in the Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either
the ability of the Servicer to perform its obligations under
this Agreement or the financial condition of the Servicer;
(vi) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would
prohibit the Servicer from entering into this Agreement or, in
the Servicer's good faith and reasonable judgment, is likely
to materially and adversely affect either the ability of the
Servicer to perform its obligations under this Agreement or
the financial condition of the Servicer;
(vii) Each officer or employee of the Servicer that has
responsibilities concerning the servicing and administration
of the Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage required by
Section 3.08(c). None of the Servicer or any of the respective
officers or employees that is involved in the servicing or
administration of the Mortgage Loans has been refused such
coverage or insurance;
(viii)The Servicer maintains a fidelity bond and errors and
omissions insurance policy described in Section 3.08(c) as of
the date of this Agreement;
(ix) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for
the consummation by the Servicer of the transactions
contemplated herein, except for those consents, approvals,
authorization or orders that previously have been obtained;
and
(x) The Servicer has not retained any Sub-Servicers as of the
Closing Date.
(b) The representations and warranties of the Servicer set forth
in Section 2.04(a) shall survive the execution and delivery of this Agreement
and inure to the benefits of the Persons for whose benefits they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
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) Each successor Servicer (if any) other than the Trustee, shall
be deemed to have made, as of the date of its succession, each of the
representations and warranties set forth in Section 2.04(a) and the covenant set
forth in Section 2.04(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.
(d) The Special Servicer hereby represents, warrants and covenants
that as of the Closing Date or as of such date specifically provided herein:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing, under the laws of Florida and
has all licenses necessary to carry on its business as now
being conducted or will be in compliance with the laws of each
state (within the United States of America) in which any
Mortgaged Property is located to the extent necessary to
comply with its duties and responsibilities hereunder with
respect to each Mortgage Loan in accordance with the terms of
this Agreement;
(ii) The Special Servicer has the full power, authority and legal
right to execute and deliver this Agreement and to perform in
accordance herewith; the execution and delivery of this
Agreement by the Special Servicer and its performance and
compliance with the terms of this Agreement will not violate
the Special Servicer's articles of incorporation or by-laws or
constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result
in the breach of, any material contract, agreement or other
instrument to which the Special Servicer is a party or which
may be applicable to the Special Servicer or any of its
assets;
(iii) This Agreement has been duly and validly authorized, executed
and delivered by the Special Servicer and, assuming due
authorization, execution and delivery by the other parties
hereto, constitutes a legal, valid and binding obligation of
the Special Servicer, enforceable against it in accordance
with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other laws relating
to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and all requisite corporate action, has been taken by
the Special Servicer to make this Agreement and all agreements
contemplated hereby valid and binding upon the Special
Servicer in accordance with their terms;
(iv) The Special Servicer is not in violation of, and the execution
and delivery of this Agreement by the Special Servicer and its
performance and compliance with the terms of this Agreement
will not constitute a violation with respect to, any order or
decree of any court binding on the Special Servicer or any
order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, or result in the
creation or imposition of any lien, charge or encumbrance
which, in any such event, would have consequences that would
materially and adversely affect the condition (financial or
otherwise) or operation of the Special Servicer or its
properties or impair the ability of the Trust Fund to realize
on the Mortgage Loans;
(v) The Special Servicer maintains a fidelity bond and errors and
omissions insurance policy described in Section 3.08(c) as of
the date of this Agreement;
(vi) There is no action, suit, proceeding or investigation pending
or threatened against the Special Servicer which, either in
any one instance or in the aggregate, would result in any
material adverse change in the business, operations, financial
condition, properties or assets of the Special Servicer, or
result in any material impairment of the right, or would, if
adversely determined, materially impair the ability of the
Special Servicer to carry on its business substantially as now
conducted, or in any material liability on the part of the
Special Servicer, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any
action taken or to be taken in connection with the obligations
of the Special Servicer contemplated herein, or which would be
likely to impair materially the ability of the Special
Servicer to perform under the terms of this Agreement; and
(vii) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or
governmental agency or body, is required for the execution,
delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement, or if
required, such approval has been obtained prior to the Cut-off
Date.
(e) It is understood and agreed that the representations and
warranties set forth in this Section shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian on behalf of the Trustee until
the termination of this Agreement, and shall inure to the benefit of the
Certificateholders, the Trustee, the Depositor and the Servicer or Special
Servicer, as the case may be. Upon discovery by the Depositor, the Servicer, the
Special Servicer or a Responsible Officer of the Trustee (or upon written notice
thereof from any Certificateholder) of a breach of any of the representations
and warranties set forth in this Section which materially and adversely affects
the interests of the Certificateholders, the Servicer, the Special Servicer or
the Trustee in any Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties hereto and the Mortgage Loan Sellers.
(f) The Trustee hereby represents and warrants that as of the
Closing Date:
(i) The Trustee is a nationally chartered bank duly organized,
validly existing, and in good standing under the laws of the
United States and has full power, authority and legal right to
own its properties and conduct its business as presently
conducted and to execute, deliver and perform the terms of
this Agreement;
(ii) This Agreement has been duly authorized, executed and
delivered by the Trustee and, assuming due authorization,
execution and delivery by the other parties hereto,
constitutes a legal, valid and binding instrument enforceable
against the Trustee 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 in general and by general equity
principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iii) Neither the execution and delivery of this Agreement by the
Trustee nor the consummation by the Trustee of the
transactions herein contemplated to be performed by the
Trustee, nor compliance by the Trustee with the provisions
hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any
applicable law (subject to the appointment in accordance with
such applicable law of any co-trustee or separate trustee
required pursuant to this Agreement), governmental rule,
regulation, judgment, decree or order binding on the Trustee
or its properties or the organizational documents of the
Trustee or the terms of any material agreement, instrument or
indenture to which the Trustee is a party or by which it is
bound;
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the Trustee, threatened against
the Trustee which, either in any one instance or in the
aggregate, would result in any material adverse change in the
business, operations, financial condition, properties or
assets of the Trustee, or in any material impairment of the
right, or would, if adversely determined, materially impair
the ability of the Trustee to carry on its business
substantially as now conducted, or result in any material
liability on the part of the Trustee, or which would draw into
question the validity of this Agreement or the Mortgage Loans
or of any action taken or to be taken in connection with the
obligations of the Trustee contemplated herein, or which would
be likely to impair materially the ability of the Trustee to
perform under the terms of this Agreement; and
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or
governmental agency or body, is required for the execution,
delivery and performance by the Trustee of or compliance by
the Trustee with this Agreement, or if required, such approval
has been obtained prior to the Cut-off Date.
Section 2.05 Execution and Delivery of Certificates;
Issuance of Lower-Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans,
the Loan REMIC Regular Interests and the Loan REMIC Residual Interests and the
delivery of the Mortgage Files to the Custodian (to the extent the documents
constituting the Mortgage Files are actually delivered to the Custodian),
subject to the provisions of Section 2.01 and Section 2.02 and, concurrently
with such delivery, (i) acknowledges and hereby declares that it holds the Loan
REMIC Regular Interests on behalf of the Lower-Tier REMIC and the Holders of the
Certificates and holds the Loan REMIC Residual Interests on behalf of the
Holders of the Class LR Certificates; (ii) acknowledges the issuance of and
hereby declares that it holds the Lower-Tier Regular Interests on behalf of the
Upper-Tier REMIC and the Holders of the Regular Certificates and the Class R
Certificates and (iii) has caused to be executed and caused to be authenticated
and delivered to or upon the order of the Depositor, or as directed by the terms
of this Agreement, Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates in
authorized denominations, in each case registered in the names set forth in such
order or so directed in this Agreement and duly authenticated by the
Authenticating Agent, which Certificates (described in the preceding clause
(iii)), Lower-Tier Regular Interests and Loan REMIC Interests evidence ownership
of the entire Trust Fund.
Section 2.06 Miscellaneous REMIC and Grantor Trust
Provisions.
(a) The Class A-1-LA, Class A-1-LB, Class A-2-L, Class A-3-L,
Class B-L, Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class H-L,
Class J-L, Class K-L, Class L-L, Class M-L, Class N-L, Class Q-1-L and Class
Q-2-L Interests represent the "regular interests" in the Lower-Tier REMIC within
the meaning of Section 860G(a)(1) of the Code, and the Class LR Certificates
represent the sole Class of "residual interests" in the Lower-Tier REMIC within
the meaning of Section 860G(a)(2) of the Code and represent undivided beneficial
interests in each of the Loan REMIC Residual Interests. The Class A-1, Class
A-2, Class A-3, Class CS-1, Class X, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class Q-1 and
Class Q-2 Certificates represent the "regular interests" in the Upper-Tier REMIC
within the meaning of Section 860G(a)(1) of the Code and the Class R
Certificates represent the sole Class of "residual interests" in the Upper-Tier
REMIC within the meaning of Section 860G(a)(2) of the Code. The Class CS-1
Certificates represent a "specified portion," within the meaning of the Treasury
Regulations Section 1.860G-1(a)(2), of the interest payments on the Class A-1-LA
Interest equal to the product of (a) the excess of the Weighted Average Net
Mortgage Pass-Through Rate over the Class A-1 Pass-Through Rate and (b) the
Class A-1-LA Certificate Balance. The Class X Certificates represent a
"specified portion," within the meaning of Treasury Regulations Section
1.560G-1(a)(2), of the interest payments on the Class A-1-LB, Class A-2-L, Class
A-3-L, Class B-L, Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class
H-L, Class J-L, Class K-L, Class L-L, Class M-L, Class N-L, Class Q-1-L and
Class Q-2-L Interests equal to the aggregate of the product, for each such Class
of Lower-Tier Regular Interests, of (a) the excess of the Weighted Average Net
Mortgage Pass-Through Rate over the Pass-Through Rate of the Related Certificate
and (b) the Certificate Balance thereof. The Closing Date is hereby designated
as the "Startup Day" of the Lower-Tier REMIC and the Upper-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code. The "latest possible maturity date"
of the Lower-Tier Regular Interests and the Regular Certificates for purposes of
Section 860G(a)(1) of the Code is the Rated Final Distribution Date. The
interest rate for each Class of Lower-Tier Regular Interests is a per annum rate
equal to the Weighted Average Net Mortgage Pass-Through Rate.
(b) The Class X Certificates represent an undivided beneficial
interest in the right to receive the Repurchase Return of Premium Amount. The
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class Q-1 and Class Q-2
Certificates represent pro rata undivided beneficial interests in the Excess
Interest, in each case, equal to a fraction of which the numerator is the
initial Certificate Balance of such Class and the denominator is the aggregate
of the initial Certificate Balances of all such Classes.
(c) None of the Depositor, the Trustee, the Servicer, the Fiscal
Agent or the Special Servicer shall enter into any arrangement by which the
Trust Fund will receive a fee or other compensation for services other than as
specifically contemplated herein.
Section 2.07 Year 2000 Readiness.
Each of the Servicer and the Special Servicer shall take all action
reasonably necessary to ensure that its computer-based systems are able to
operate and effectively process data including dates on and after January 1,
2000. At the request of either of such parties, the other party shall provide
the requesting party with reasonable assurance of such other party's year 2000
readiness. The Trustee has taken such action as is reasonably necessary to cure
any deficiencies with regard to the processing or calculation of dates beyond
December 31, 1999 in the internally maintained computer software systems
maintained by the Trustee in the conduct of its trust business which would
materially and adversely affect its abilities to perform its obligations under
this Agreement. Without limiting any rights or remedies of the Trust Fund, the
Certificateholders or any other party hereto for a breach under any other
Section of this Agreement that may arise out of the failure of the Servicer, the
Special Servicer or the Trustee to be year 2000 ready before January 1, 2000,
the sole remedy of the Trust Fund, the Certificateholders and any other party
hereto with respect to a breach on the part of the Servicer, the Special
Servicer or the Trustee to comply with this Section 2.07 shall be to terminate
appointment of the defaulting party in accordance with the applicable provisions
of Article VII or Article VIII hereof, as applicable.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Servicer to Act as Servicer; Special Servicer
to Act as Special Servicer; Administration of
the Mortgage Loans.
(a) The Servicer and the Special Servicer, each as an independent
contractor servicer, shall service and administer (i) in the case of the
Servicer, the Mortgage Loans that are not Specially Serviced Mortgage Loans and
(ii) in the case of the Special Servicer, the Specially Serviced Mortgage Loans,
each on behalf of the Trust Fund and the Trustee (as trustee for
Certificateholders) in accordance with any and all applicable laws, the terms of
this Agreement, the terms of the respective Mortgage Loan and, to the extent
consistent with the foregoing, the Servicing Standard.
The Servicer's or Special Servicer's liability for actions and
omissions in its capacity as Servicer or Special Servicer, as the case may be,
hereunder is limited as provided herein (including, without limitation, pursuant
to Section 6.03 hereof). To the extent consistent with the foregoing and subject
to any express limitations set forth in this Agreement, the Servicer and Special
Servicer shall seek to maximize the timely and complete recovery of principal
and interest on the Notes; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Servicer or Special
Servicer of the collectability of the Mortgage Loans. Subject only to the
Servicing Standard, the Servicer and Special Servicer shall have full power and
authority, acting alone or through sub-servicers (subject to paragraph (c) of
this Section 3.01 and to Section 3.02), to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
consistent with the Servicing Standard and, in its reasonable judgment, in the
best interests of the Certificateholders, including, without limitation, with
respect to each Mortgage Loan, to prepare, 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 on each Mortgaged Property and related collateral; (ii)
subject to Sections 3.09, 3.10 and 3.29, any modifications, waivers, consents or
amendments to or with respect to any documents contained in the related Mortgage
File; and (iii) any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties. The Servicer and
Special Servicer shall provide to the Borrowers any reports required to be
provided to them pursuant to the Mortgage Loans. Subject to Section 3.11, the
Trustee shall, upon the receipt of a written request of a Servicing Officer,
execute and deliver to the Servicer and Special Servicer any powers of attorney
and other documents prepared by the Servicer and Special Servicer and necessary
or appropriate (as certified in such written request) to enable the Servicer and
Special Servicer to carry out their servicing and administrative duties
hereunder; provided, however, that neither the Servicer nor the Special Servicer
shall, without the Trustee's written consent, (i) initiate any action in the
Trustee's name without indicating the Servicer's or the Special Servicer's
representative capacity; or (ii) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents which have the effect
of causing the Trustee to be registered to do business in any state.
(b) To the extent permitted by the related Note, the Servicer, as
applicable, shall apply any partial Principal Prepayment received on a Mortgage
Loan on a date other than a Due Date to the principal balance of such Mortgage
Loan as of the Due Date immediately following the date of receipt of such
partial Principal Prepayment. To the extent allowed by the related Note, the
Servicer shall apply any amounts received on U.S. Treasury obligations (which
shall not be redeemed by the Servicer prior to the maturity thereof) in respect
of a Mortgage Loan that has been defeased pursuant to its terms to the principal
balance of and interest on such Mortgage Loan as of the Due Date immediately
following the receipt of such amounts.
(c) Each of the Servicer and the Special Servicer may enter into
sub-servicing agreements with third parties (only at their own expense and, with
respect to the Special Servicer only, subject to written confirmation from the
Rating Agencies (other than S&P) that the appointment of such sub-servicer will
not result in a qualification, withdrawal or downgrade of the then-current
ratings of the Certificates), with respect to any of its respective obligations
hereunder, provided, that (i) any such agreement shall be consistent with the
provisions of this Agreement, (ii) no sub-servicer retained by the Servicer or
the Special Servicer, as applicable, shall grant any modification, waiver or
amendment to any Mortgage Loan without the approval of the Servicer or the
Special Servicer, as applicable, which approval shall be given or withheld in
accordance with the procedures set forth in Sections 3.09, 3.10, 3.28 or 3.29,
and (iii) such agreement shall be consistent with the Servicing Standard (to the
extent consistent with this Agreement). Any such sub-servicing agreement may
permit the sub-servicer to delegate its duties to agents or subcontractors so
long as the related agreements or arrangements with such agents or
subcontractors are consistent with the provisions of this Section 3.01(c). The
Special Servicer is restricted from engaging sub-servicers for more than 25% of
the Mortgage Loans.
Any sub-servicing agreement entered into by the Servicer or the
Special Servicer, as applicable, shall provide that it may be assumed or
terminated by the Trustee or the successor Servicer, respectively, if the
Trustee or the successor Servicer, respectively, has assumed the duties of the
Servicer or the Special Servicer, respectively, or any successor Servicer or
Special Servicer, as applicable, without cost or obligation to the assuming or
terminating party or the Trust Fund, upon the assumption by such party of the
obligations of the Servicer or the Special Servicer, as applicable, pursuant to
Section 7.02.
Any sub-servicing agreement entered into by the Servicer shall
provide that, with respect to any Mortgage Loan in which an Affiliate of the
sub-servicer holds any subordinate debt, preferred equity investment or
mezzanine debt of a related Borrower or its Affiliate, such sub-servicer may
sub-service such Mortgage Loan; provided, however, that the Servicer shall make
all decisions with respect to the administration of any such Mortgage Loan
including, without limitation, lease approvals, modifications, waivers and
amendments of the terms thereof, releases of collateral and transfers to special
servicing.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Servicer or the Special Servicer, as applicable, and such
sub-servicer alone, and the Trustee, the Trust Fund and the Certificateholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the sub-servicer, except as
set forth in Section 3.01(d) and no provision herein may be construed so as to
require the Trust Fund to indemnify any such sub-servicer.
(d) If the Trustee or any successor Servicer assumes the
obligations of the Servicer, respectively, or if the Servicer or any successor
Special Servicer assumes the obligations of the Special Servicer, in each case
in accordance with Section 7.02, the Trustee, the Servicer or such successor, as
applicable, to the extent necessary to permit the Trustee, the Servicer or such
successor, as applicable, to carry out the provisions of Section 7.02, shall,
without act or deed on the part of the Trustee, the Servicer or such successor,
as applicable, succeed to all of the rights and obligations of the Servicer or
the Special Servicer, as applicable, under any sub-servicing agreement entered
into by the Servicer or the Special Servicer, as applicable, pursuant to Section
3.01(c), subject to the right of termination by the Trustee or Servicer, as
applicable, set forth in Section 3.01(c). In such event, the Trustee, the
Servicer or the successor Servicer or Special Servicer, as applicable, shall be
deemed to have assumed all of the Servicer's or Special Servicer's interest, as
applicable, therein (but not any liabilities or obligations in respect of acts
or omissions of the Servicer or the Special Servicer, as applicable, prior to
such deemed assumption) and to have replaced the Servicer or the Special
Servicer, as applicable, as a party to such sub-servicing agreement to the same
extent as if such sub-servicing agreement had been assigned to the Trustee, the
Servicer or such successor Servicer or successor Special Servicer, as
applicable, except that the Servicer or the Special Servicer, as applicable,
shall not thereby be relieved of any liability or obligations under such
sub-servicing agreement that accrued prior to the succession of the Trustee, the
Servicer or the successor Servicer or successor Special Servicer, as applicable.
In the event that the Trustee, the Servicer or any successor
Servicer or Special Servicer, as applicable, assumes the servicing obligations
of the Servicer or the Special Servicer, as applicable, upon request of the
Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, the Servicer or Special Servicer shall at its own expense deliver to
the Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, all documents and records relating to any sub-servicing agreement
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it, if any, and will otherwise use its best
efforts to effect the orderly and efficient transfer of any sub-servicing
agreement to the Trustee, the Servicer or the successor Servicer or Special
Servicer, as applicable.
Section 3.02 Liability of the Servicer and Special Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions
of this Agreement relating to agreements or arrangements between the Servicer or
Special Servicer and any Person acting as sub-servicer (or its agents or
subcontractors) or any reference to actions taken through any Person acting as
sub-servicer or otherwise, the Servicer or Special Servicer, as applicable,
shall remain obligated and primarily liable to the Trustee and
Certificateholders for the servicing and administering of the Mortgage Loans in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such sub-servicing agreements or
arrangements or by virtue of indemnification from the Depositor or any other
Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Servicer or Special
Servicer, as applicable, alone were servicing and administering the Mortgage
Loans. Each of the Servicer and the Special Servicer shall be entitled to enter
into an agreement with any sub-servicer providing for indemnification of the
Servicer or Special Servicer, as applicable, by such sub-servicer, and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification, but no such agreement for indemnification shall be deemed to
limit or modify this Agreement.
Section 3.03 Collection of Certain Mortgage Loan Payments.
(a) The Servicer or the Special Servicer, as applicable, shall use
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 the Servicing Standard with respect to such collection procedures. With
respect to each Specially Serviced Mortgage Loan, the Special Servicer (and,
with respect to other Mortgage Loans, the Servicer) shall use its reasonable
efforts to collect income statements and rent rolls from Borrowers as required
by the Loan Documents and the terms hereof and each of the Servicer and Special
Servicer shall provide copies thereof to the other party as provided herein. The
Servicer shall provide at least six months' notice to the Borrowers of Balloon
Payments and Anticipated Repayment Dates coming due. Consistent with the
foregoing, the Servicer or Special Servicer, as applicable, may in its
discretion waive any late payment charge and/or Default Interest in connection
with any delinquent Monthly Payment or Balloon Payment with respect to any
Mortgage Loan. In addition, the Servicer shall be entitled to take such actions
with respect to the collection of payments on the Mortgage Loans as are
permitted or required under Section 3.28 hereof.
(b) In the event that the Servicer or Special Servicer receives,
or receives notice from the related Borrower that it will be receiving, Excess
Interest in any Collection Period, the Servicer or Special Servicer, as
applicable, will promptly notify the Trustee.
Section 3.04 Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.
(a) With respect to each Mortgage Loan (other than any REO
Mortgage Loan), the Servicer shall maintain accurate records with respect to
each related Mortgaged Property reflecting the status of taxes, assessments and
other similar items that are or may become a lien on the related Mortgaged
Property and the status of insurance premiums payable with respect thereto. From
time to time, the Servicer shall (i) obtain all bills for the payment of such
items (including renewal premiums), and (ii) effect payment of all such bills
with respect to such Mortgaged Properties prior to the applicable penalty or
termination date, in each case employing for such purpose Escrow Payments as
allowed under the terms of the related Mortgage Loan. If a Borrower fails to
make any such payment on a timely basis or collections from the Borrower are
insufficient to pay any such item before the applicable penalty or termination
date (or, with respect to Mortgage Loans with no Escrow Accounts for such
purpose, upon determining (using efforts consistent with the Servicing Standard)
that the Borrower has not made such payment), the Servicer shall advance the
amount of any shortfall as a Property Advance unless the Servicer determines in
its good faith business judgment that such Advance would be a Nonrecoverable
Advance. The Servicer shall be entitled to reimbursement of Advances, with
interest thereon at the Advance Rate, that it makes pursuant to the preceding
sentence from amounts received on or in respect of the related Mortgage Loan
respecting which such Advance was made or if such Advance has become a
Nonrecoverable Advance, to the extent permitted by Section 3.06 of this
Agreement. No costs incurred by the Servicer in effecting the payment of taxes
and assessments on the Mortgaged Properties shall, for the purpose of
calculating distributions to Certificateholders, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
The Special Servicer shall give the Servicer and the Trustee not
less than five Business Days' notice with respect to Property Advances to be
made on any Specially Serviced Mortgage Loan, before the date on which the
Servicer is required to make any Property Advance with respect to a given
Mortgage Loan or REO Property; provided, however, that only two Business Days'
notice shall be required in respect of Property Advances required to be made on
an urgent or emergency basis (which may include, without limitation, Property
Advances required to make tax or insurance payments). In addition, the Special
Servicer shall provide the Servicer and the Trustee with such information in its
possession as the Servicer or the Trustee, as applicable, may reasonably request
to enable the Servicer or the Trustee, as applicable, to determine whether a
requested Advance would constitute a Nonrecoverable Advance. Any request by the
Special Servicer that the Servicer make a Property Advance shall be deemed to be
a determination by the Special Servicer that such requested Property Advance is
not a Nonrecoverable Advance, and the Servicer shall be entitled to conclusively
rely on such determination; provided, however, that the Special Servicer shall
not be liable to the Trust Fund or the Servicer if such Advance shall be
non-recoverable. On the fourth Business Day before each Distribution Date, the
Special Servicer shall report to the Servicer the Special Servicer's
determination as to whether any Property Advance previously made with respect to
a Specially Serviced Mortgage Loan or REO Mortgage Loan is a Nonrecoverable
Advance. The Servicer shall be entitled to conclusively rely on such a
determination; provided, however, that the Special Servicer shall not be liable
to the Trust Fund or the Servicer if such Advance shall be non-recoverable.
(b) The Servicer shall segregate and hold all funds collected and
received pursuant to any Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets, and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Payments shall be deposited within one (1) Business Day
after receipt by the Servicer. The Servicer shall also deposit into each Escrow
Account any amounts representing losses on Permitted Investments pursuant to
Section 3.07(b) and any Insurance Proceeds or Liquidation Proceeds which are
required to be applied to the restoration or repair of any Mortgaged Property
pursuant to the related Mortgage Loan. Escrow Accounts shall be Eligible
Accounts (except to the extent the related Mortgage Loan requires it to be held
in an account that is not an Eligible Account) and shall be entitled "BNY Asset
Solutions LLC, as Servicer, in trust for LaSalle Bank National Association, as
Trustee in trust for Holders of Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2, and Various Borrowers."
Withdrawals from an Escrow Account may be made by the Servicer, as applicable,
only:
(i) to effect timely payments of items with respect to which
Escrow Payments for the related Mortgage were collected;
(ii) to transfer funds to the Collection Account to reimburse the
Servicer, the Trustee or the Fiscal Agent, as applicable, for
any Advance (with interest thereon at the Advance Rate)
relating to Escrow Payments, but only from amounts received
with respect to the related Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage
Loan and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement;
(v) to pay from time to time to the related Borrower any interest
or investment income earned on funds deposited in the Escrow
Account if such income is required to be paid to the related
Borrower under law or by the terms of the Mortgage Loan, or
otherwise to the Servicer; and
(vi) to remove any funds deposited in an Escrow Account that were
not required to be deposited therein.
Section 3.05 Collection Account, Distribution Account,
Upper-Tier Distribution Account, Excess Interest
Distribution Account and Repurchase Price Return
of Premium Distribution Account.
(a) The Servicer shall establish and maintain a Collection Account
in the Trustee's name, for the benefit of the Certificateholders and the Trustee
as the Holder of the Lower-Tier Regular Interests and the Loan REMIC Interests.
The Collection Account shall be established and maintained as an Eligible
Account. The Servicer shall deposit or cause to be deposited in the Collection
Account within one Business Day following receipt the following payments and
collections received or made by it on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans,
including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and
the interest portion of all Unscheduled Payments and all
Prepayment Premiums;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted
Investments with respect to funds held in the Collection
Account;
(iv) all Net REO Proceeds withdrawn from an REO Account pursuant to
Section 3.17(b) and all Net Insurance Proceeds and Net
Liquidation Proceeds;
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses, to the extent not permitted
to be retained by the Servicer as provided herein;
(vi) any other amounts required by the provisions of this Agreement
to be deposited into the Collection Account by the Servicer or
Special Servicer, including, without limitation, proceeds of
any repurchase of a Mortgage Loan pursuant to Sections 2.03(d)
and (e) hereof; and
(vii) any Servicer Prepayment Interest Shortfalls.
The foregoing requirements for deposits in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, Net
Default Interest, Assumption Fees, loan modification fees, loan service
transaction fees, extension fees, demand fees, beneficiary statement charges and
similar fees need not be deposited in the Collection Account by the Servicer
and, to the extent permitted by applicable law, the Servicer or the Special
Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Mortgage Loans. Payments in the nature of Escrow Payments and amounts to be
deposited to Reserve Accounts need not be deposited in the Collection Account by
the Servicer. In the event that the Servicer deposits in the Collection Account
any amount not required to be deposited therein, the Servicer may at any time
withdraw such amount from the Collection Account.
(b) The Trustee shall establish and maintain the Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Loan REMIC Interests and
the Lower-Tier Regular Interests. The Distribution Account shall be established
and maintained as an Eligible Account. With respect to each Distribution Date,
the Servicer will deposit in the Distribution Account, to the extent of funds on
deposit in the Collection Account, on the Servicer Remittance Date an aggregate
amount of immediately available funds equal to the sum of Available Funds,
Prepayment Premiums and the Trustee Fee pursuant to the terms of Section
4.06(b). The Servicer will deposit all P&I Advances into the Distribution
Account on the related Servicer Remittance Date pursuant to the terms of Section
4.06(b). To the extent the Servicer fails to do so, the Trustee or the Fiscal
Agent will deposit all P&I Advances into the Distribution Account. All such
amounts deposited in respect of the Geneva Crossing Loan and the Henry W. Oliver
Loan shall be deemed to be distributed in respect of the related Loan REMIC
Regular Interests and the Loan REMIC Residual Interests as set forth in the
related Loan REMIC Declarations.
(c) The Trustee shall establish and maintain the Upper-Tier
Distribution Account in the name of the Trustee, in trust for the benefit of the
Certificateholders (other than the Class LR Certificateholders). The Upper-Tier
Distribution Account shall be established and maintained as an Eligible Account.
With respect to each Distribution Date, the Trustee shall withdraw from the
Distribution Account and deposit in the Upper-Tier Distribution Account on or
before such date the amount of Available Funds (including P&I Advances) and
Prepayment Premiums to be distributed in respect of the Lower-Tier Regular
Interests pursuant to Section 4.01(a)(i), Section 4.01(a)(ii) and Section
4.01(a)(iii) hereof on such date. Notwithstanding anything herein to the
contrary, the Upper-Tier Distribution Account may be maintained as a subaccount
of the Distribution Account; provided, that accounts shall be maintained in a
manner sufficient to identify the deposits thereto and withdrawals therefrom.
(d) Prior to the Servicer Remittance Date relating to any
Collection Period in which Excess Interest is received, the Trustee shall
establish and maintain the Excess Interest Distribution Account in the name of
the Trustee in trust for the benefit of the Holders of the Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class Q-1 and Class Q-2 Certificates. The Excess
Interest Distribution Account shall be established and maintained as an Eligible
Account. On or before the Servicer Remittance Date related to the applicable
Distribution Date (in accordance with the allocation priorities set forth in
Section 3.28(d) to the extent applicable), the Servicer shall remit to the
Trustee for deposit in the Excess Interest Distribution Account an amount equal
to the Excess Interest received during the applicable Collection Period.
Following the distribution of Excess Interest to Certificateholders on the first
Distribution Date after which there are no longer any Mortgage Loans outstanding
which pursuant to their terms could pay Excess Interest, the Trustee shall
terminate the Excess Interest Distribution Account.
(e) Prior to the Servicer Remittance Date relating to any
Collection Period in which any Repurchase Return of Premium Amount is received,
the Trustee shall establish and maintain the Repurchase Price Return of Premium
Distribution Account in the name of the Trustee in trust for the benefit of the
Holders of the Class X Certificates. The Repurchase Price Return of Premium
Distribution Account shall be established and maintained as an Eligible Account.
On or before the Servicer Remittance Date related to the applicable Distribution
Date (in accordance with the allocation priorities set forth in Section 3.28(d)
to the extent applicable), the Servicer shall remit to the Trustee for deposit
in the Repurchase Price Return of Premium Distribution Account an amount equal
to the Repurchase Return of Premium Amount received during the applicable
Collection Period. Following the distribution of such amount to
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Return of Premium Amount, the Trustee shall terminate the Repurchase Price
Return of Premium Distribution Account.
(f) Funds in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account and
the Repurchase Price Return of Premium Distribution Account may be invested only
in Permitted Investments in accordance with the provisions of Section 3.07. The
Servicer shall give written notice to the Trustee of the location and account
number of the Collection Account and shall notify the Trustee in writing prior
to any subsequent change thereof.
Section 3.06 Permitted Withdrawals from the Collection
Account.
The Servicer may make withdrawals from the Collection Account only
as described below (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account, the Interest Reserve Account, Excess Interest
Distribution Account and the Repurchase Price Return of
Premium Distribution Account, the amounts required to be
deposited in the Distribution Account, the Interest Reserve
Account, the Excess Interest Distribution Account and the
Repurchase Price Return of Premium Distribution Account
pursuant to Sections 4.06, 3.27(a), 3.05(b), 3.05(d) and
3.05(e);
(ii) to pay or reimburse the Trustee, the Fiscal Agent, the
Servicer for Advances (provided, that the Trustee and the
Fiscal Agent shall have priority with respect to such payment
or reimbursement), the Servicer's right to reimburse any such
Person pursuant to this clause (ii) being limited to (x) any
collections on or in respect of the particular Mortgage Loan
or REO Property with respect to which such Advance was made,
or (y) any other amounts in the Collection Account in the
event that such Advances, and any Property Advances made by
the Lead Lender with respect to the Other Note required to be,
but not reimbursed by the Other Trust Fund as provided in
Section 3.31, or any Advance Interest Amount have been deemed
to be Nonrecoverable Advances or are not reimbursed from
recoveries in respect of the related Mortgage Loan or REO
Property after a Final Recovery Determination;
(iii) (A) to pay to the Servicer, the Trustee or the Fiscal Agent
the Advance Interest Amount relating to P&I Advances and (B)
to pay to the Servicer, Trustee or Fiscal Agent any Advance
Interest Amounts not relating to any P&I Advances, in each
case, after application of any Default Interest collected in
the related Collection Period to reimbursement of the Advance
Interest Amounts out of general collections on the Mortgage
Loans and any REO Properties (provided that in the case of
both (A) and (B), the Trustee and the Fiscal Agent shall have
priority with respect to such payments);
(iv) to pay on or before each Servicer Remittance Date to the
Servicer and the Special Servicer, as applicable, as
compensation, the aggregate unpaid Servicing Compensation and
Special Servicing Compensation (if any) and any other
servicing or special servicing compensation, as applicable, in
respect of the related Collection Period, to be paid, in the
case of the Servicing Fee, from amounts received or advanced
on the related Mortgage Loan (or if not so received or
advanced, from other funds on deposit in the Collection
Account), and to pay from time to time to the Servicer in
accordance with Section 3.07(b) any interest or investment
income earned on funds deposited in the Collection Account
(the Servicer may rely on a certification of the Special
Servicer as to amounts of Special Servicing Compensation to be
withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the
Trustee Fee for such Distribution Date to be paid from
interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor,
the appropriate Mortgage Loan Seller or other Originator, as
the case may be, with respect to each Mortgage Loan or REO
Property that has previously been purchased or repurchased by
it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18
or Section 9.01, all amounts received thereon during the
related Collection Period and subsequent to the date as of
which the amount required to effect such purchase or
repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other
clause of this Section 3.06, to reimburse or pay the Servicer,
the Trustee, the Special Servicer, the Depositor or the Fiscal
Agent, as applicable, for unpaid Servicing Fees, Trustee Fees,
Special Servicing Compensation and other unpaid items incurred
by such Person pursuant to the second sentence of Section
3.07(c), Section 3.08(a) and (b), Section 3.10, Section
3.12(d), Section 3.17(a), (b) and (c), Section 3.31(d),
Section 6.03, Section 7.04, Section 8.01(c)(v), Section
8.05(d) or Section 10.07, or any other provision of this
Agreement pursuant to which such Person is entitled to
reimbursement or payment from the Trust Fund, in each case
only to the extent reimbursable under such Section, it being
acknowledged that this clause (vii) shall not be deemed to
modify the substance of any such Section, including the
provisions of such Section that set forth the extent to which
one of the foregoing Persons is or is not entitled to payment
or reimbursement;
(viii)to transfer to the Trustee for deposit in one or more
separate, non-interest bearing accounts any amount reasonably
determined by the Trustee to be necessary to pay any
applicable federal, state or local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or any Loan REMIC under
the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any amount deposited into the Collection Account
that was not required to be deposited therein; and
(x) to clear and terminate the Collection Account pursuant to
Section 9.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to subclauses (i)-(vii) above.
The Servicer shall pay to the Trustee, the Fiscal Agent or the
Special Servicer from the Collection Account (to the extent permitted by clauses
(i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent
or the Special Servicer therefrom, promptly upon receipt of a certificate of a
Responsible Officer of the Trustee or the Fiscal Agent or a certificate of a
Servicing Officer, as applicable, describing the item and amount to which such
Person is entitled. The Servicer may rely conclusively on any such certificate
and shall have no duty to recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer and the Servicer
shall in all cases have a right prior to the Certificateholders to any funds on
deposit in the Collection Account from time to time for the reimbursement or
payment of the Servicing Compensation (including investment income), or Trustee
Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their
respective expenses hereunder to the extent such fees and expenses are to be
reimbursed or paid from amounts on deposit in the Collection Account pursuant to
this Agreement (and to have such amounts paid directly to third party
contractors for any invoices approved by the Trustee, the Servicer or the
Special Servicer, as applicable) and any federal, state or local taxes imposed
on either the Upper-Tier REMIC, the Lower-Tier REMIC or any Loan REMIC.
Section 3.07 Investment of Funds in the Collection Account
and Borrower Accounts.
(a) The Servicer (or with respect to any REO Account, the Special
Servicer) may direct any depository institution maintaining the Collection
Account, the REO Account and any Borrower Accounts (subject to the second
succeeding sentence) (each, for purposes of this Section 3.07, an "Investment
Account"), to invest the funds in such Investment Account only in one or more
Permitted Investments that bear interest or are sold at a discount, and that
mature, unless payable on demand, no later than the Business Day preceding the
date on which such funds are required to be withdrawn from such Investment
Account pursuant to this Agreement. Any direction by the Servicer or the Special
Servicer to invest funds on deposit in an Investment Account shall be in writing
and shall certify that the requested investment is a Permitted Investment which
matures at or prior to the time required hereby or is payable on demand. In the
case of any Escrow Account, Lock-Box Account, Cash Collateral Account or Reserve
Account (the "Borrower Accounts"), the Servicer shall act upon the written
request of the related Borrower or Manager to the extent the Servicer is
required to do so under the terms of the respective Mortgage Loan or related
documents, provided that in the absence of appropriate written instructions from
the related Borrower or Manager meeting the requirements of this Section 3.07,
the Servicer shall have no obligation to, but will be entitled to, direct the
investment of funds in such accounts in Permitted Investments. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such) or in the name of a nominee of the Trustee.
The Trustee shall have sole control (except with respect to investment direction
which shall be in the control of the Servicer (or the Special Servicer, with
respect to any REO Accounts), as an independent contractor to the Trust Fund)
over each such investment and any certificate or other instrument evidencing any
such investment shall be delivered directly to the Trustee or its agent (which
shall initially be the Servicer), together with any document of transfer, if
any, necessary to transfer title to such investment to the Trustee or its
nominee. The Trustee shall have no responsibility or liability with respect to
the investment directions of the Servicer, the Special Servicer, any Borrower or
Manager or any losses resulting therefrom, whether from Permitted Investments or
otherwise. Neither the Special Servicer nor the Servicer shall have any
responsibility or liability with respect to the investment directions of any
Borrower or Manager or each other or any losses resulting therefrom, whether
from Permitted Investments or otherwise. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Servicer (or the Special Servicer, as applicable), shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the
last day such Permitted Investment may otherwise mature
hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly
upon determination by the Servicer (or the Special
Servicer, as applicable) that such Permitted Investment
would not constitute a Permitted Investment in respect
of funds thereafter on deposit in the related Investment
Account.
(b) All income and gain realized from investment of funds
deposited in any Investment Account shall be for the benefit of the Servicer
(except with respect to the investment of funds deposited in (i) any Borrower
Account, which shall be for the benefit of the related Borrower to the extent
required under the Mortgage Loan or applicable laws, or (ii) any REO Account,
which shall be for the benefit of the Special Servicer) and, if held in the
Collection Account or REO Account shall be subject to withdrawal by the Servicer
or the Special Servicer, as applicable, in accordance with Section 3.06 or
Section 3.17(b), as applicable. The Servicer (or with respect to any REO
Account, the Special Servicer) shall deposit from its own funds into the
applicable Investment Account the amount of any loss incurred in respect of any
such Permitted Investment immediately upon realization of such loss; provided
that neither the Servicer nor the Special Servicer shall be required to deposit
any loss on an investment of funds in an Investment Account if such loss 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, and provided, further, however, that the Servicer or
Special Servicer, as applicable, may reduce the amount of such payment to the
extent it forgoes any investment income in such Investment Account otherwise
payable to it. Subject to the provisos in the immediately preceding sentence,
the Servicer shall also deposit from its own funds in any Borrower Account the
amount of any loss incurred in respect of Permitted Investments immediately upon
the realization of such loss, except to the extent that amounts are invested for
the benefit of the Borrower under the terms of the Mortgage Loan or applicable
law.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee or, if the Servicer maintains the account in
which such Permitted Investment is held, the Servicer in the name of the Trustee
may, and upon the request of Holders of Certificates representing greater than
50% of the Percentage Interests of any Class shall, take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. In the event the Trustee or the
Servicer takes any such action, the Trust Fund shall pay or reimburse the
Trustee or the Servicer, as the case may be for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee or the
Servicer, as the case may be, in connection therewith.
Section 3.08 Maintenance of Insurance Policies and Errors
and Omissions and Fidelity Coverage.
(a) The Servicer, on behalf of the Trustee, as mortgagee, shall
cause the related Borrower to maintain, to the extent required by each Mortgage
Loan (other than REO Mortgage Loans), and if the Borrower does not so maintain,
shall itself maintain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) to the extent the Trustee as mortgagee has an insurable
interest and to the extent available at commercially reasonable rates, (i) fire
and hazard insurance with extended coverage on the related Mortgaged Property in
an amount which is at least equal to the lesser of (A) one hundred percent
(100%) of the then "full replacement cost" of the improvements and equipment
(excluding foundations, footings and excavation costs), without deduction for
physical depreciation, and (B) the outstanding principal balance of the related
Mortgage Loan, or such greater amount as is necessary to prevent any reduction
in such policy by reason of the application of co-insurance and to prevent the
Trustee thereunder from being deemed a co-insurer and provided such policy shall
include a "replacement cost" rider, (ii) insurance providing coverage against 12
months of rent interruptions or such longer period or with such extended period
endorsement as provided in the related Mortgage or other loan document and (iii)
such other insurance as is required in the related Mortgage Loan, provided, that
with respect to the three largest loans as of the Cut-off Date, the Servicer
shall in all cases cause the related Borrower to maintain for all Mortgage Loans
(other than REO Mortgage Loans), and if the Borrower does not maintain the
Servicer shall maintain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) at least the insurance coverage as required under their
respective Mortgage Loan Documents. All insurance referred to above for
Mortgaged Properties shall be from a Qualified Insurer. The Special Servicer
shall maintain fire and hazard insurance with extended coverage on each REO
Property (subject to the provisions of this Agreement concerning Nonrecoverable
Advances) in an amount which is at least equal to one hundred percent (100%) of
the then "full replacement cost" of the improvements and equipment (excluding
foundations, footings and excavation costs), without deduction for physical
depreciation. If the Special Servicer does not maintain the insurance described
in the preceding sentence or the required flood insurance described below, the
Servicer shall, as soon as practicable after receipt of notice of such failure,
maintain such insurance, and if the Servicer does not maintain such insurance to
the extent available at commercially reasonable rates, the insurance required in
the first sentence of this Section 3.08(a) or the required flood insurance
described below (if the related Borrower fails to maintain such insurance), the
Trustee shall, as soon as practicable after receipt of notice of such failure,
maintain such insurance and if the Trustee does not maintain such insurance, the
Fiscal Agent shall do so, provided that, in each such case, such obligation will
be subject to the provisions of this Agreement concerning Nonrecoverable
Advances. The Special Servicer shall maintain, with respect to each REO Property
(i) public liability insurance providing such coverage against such risks as the
Special Servicer determines, consistent with the related Mortgage and the
Servicing Standard, to be in the best interests of the Trust Fund, (ii)
insurance providing coverage against 12 months of rent interruptions and (iii)
such other insurance as was required pursuant to the terms of the related
Mortgage Loan, provided, that with respect to an REO Property which as of the
Cut-off Date was one of the three largest loans, the Special Servicer shall in
all cases maintain at least the insurance coverage required under their
respective Mortgage Loan Documents. All insurance for an REO Property shall be
from a Qualified Insurer. Any amounts collected by the Servicer or the Special
Servicer under any such policies (other than amounts required to be applied to
the restoration or repair of the related Mortgaged Property or amounts to be
released to the Borrower in accordance with the terms of the related Mortgage or
Note or other document in the Mortgage File or in accordance with the Servicing
Standard) shall be deposited into the Collection Account pursuant to Section
3.05, subject to withdrawal pursuant to Section 3.06. Any cost incurred by the
Servicer, Special Servicer, Trustee or Fiscal Agent in maintaining any such
insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no other additional insurance other than flood
insurance or earthquake insurance subject to the conditions set forth below is
to be required of any Borrower or to be maintained by the Servicer other than
pursuant to the terms of the related Mortgage and pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property (other than an REO Property) is
located in a federally designated special flood hazard area, and the Servicer,
in performing its obligations hereunder in accordance with the Servicing
Standard, is aware of such location, the Servicer shall use its reasonable
efforts to cause the related Borrower to maintain, to the extent required by
each Mortgage Loan, and if the related Borrower does not so maintain, will
itself obtain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances), to the extent available at commercially reasonable
rates, flood insurance in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance required by the
terms of the related Mortgage, in either case, to the extent available for the
related property under the national flood insurance program (assuming that the
area in which such property is located is participating in such program). If an
REO Property (i) is located in a federally designated special flood hazard area
or (ii) is related to a Mortgage Loan pursuant to which earthquake insurance was
in place at the time of origination and continues to be available at
commercially reasonable rates, the Special Servicer will obtain (and direct the
Servicer to advance amounts in order to obtain, subject to the provisions of
this Agreement concerning Nonrecoverable Advances and the second paragraph of
Section 3.04(a)) flood insurance and/or earthquake insurance in respect thereof
providing substantially the same coverage as described in the preceding
sentences or, with respect to earthquake insurance, in the amount required by
the Mortgage Loan or, if not specified, in-place at origination. If at any time
during the term of this Agreement a recovery under a flood or fire and hazard or
earthquake insurance policy in respect of an REO Property is not available but
would have been available if such insurance were maintained thereon in
accordance with the standards applied to Mortgaged Properties described herein,
the Special Servicer shall (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) either (i) immediately deposit into the
Collection Account from its own funds the amount that would have been recovered
or (ii) apply to the restoration and repair of the property from its own funds
the amount that would have been recovered, if such application would be
consistent with the Servicing Standard; provided, however, that the Special
Servicer shall not be responsible for any shortfall in insurance proceeds
resulting from an insurer's refusal or inability to pay a claim. In the case of
any insurance otherwise required to be maintained pursuant to this Section that
is not being so maintained because the Servicer or the Special Servicer, as
applicable, has determined that it is not available at commercially reasonable
rates, the Servicer or the Special Servicer, as applicable, shall deliver an
Officers' Certificate to the Trustee and each Rating Agency which details the
steps that were taken in seeking such insurance and the factors which led to the
determination that such insurance was not so available. Costs to the Servicer or
Special Servicer of maintaining insurance policies pursuant to this Section 3.08
and any costs of obtaining a confirmation from Fitch, S&P and Moody's as
contemplated below shall be paid by the Servicer as a Property Advance and shall
be reimbursable to the Servicer with interest at the Advance Rate, which
reimbursement may be effected under Section 3.06(ii) or (vii).
The Special Servicer agrees that it will notify the Servicer of any
change of any insurer of any Mortgaged Property or any other change with respect
to the insurance coverage of any Mortgaged Property, to the extent it becomes
aware of such change.
Each of the Servicer (or the Special Servicer, with respect to the
Specially Serviced Mortgage Loans and REO Properties), agrees to prepare and
present, on behalf of itself, the Trustee and the Certificateholders, claims
under each related insurance policy maintained pursuant to this Section 3.08(a)
in a timely fashion in accordance with the terms of such policy and to take such
reasonable steps as are necessary to receive payment or to permit recovery
thereunder.
All insurance policies required hereunder shall name (i) the Trustee
or (ii) the Servicer or the Special Servicer, on behalf of the Trustee as the
mortgagee, as loss payee.
Any determination made by the Servicer or the Special Servicer that
insurance is not commercially reasonably available shall be subject to
confirmation by Fitch, S&P and Moody's that such determination not to purchase
such insurance will not result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates rated by Fitch, S&P and
Moody's, provided that the Servicer and the Special Servicer shall not be
required to maintain such insurance while Fitch, S&P and Moody's consider such
determination. Further, provided that if the Rating Agencies require the
maintenance of insurance the costs to the Servicer or Special Servicer of
maintaining insurance policies pursuant to this Section 3.08 and any costs of
obtaining a confirmation from Fitch, S&P and Moody's as contemplated below shall
be paid by the Servicer as a Property Advance and shall be reimbursable to the
Servicer with interest at the Advance Rate, which reimbursement may be effected
under Section 3.06(ii) or (vii).
(b) (I) If the Servicer or the Special Servicer, as applicable,
obtains and maintains a blanket insurance policy insuring against fire and
hazard losses on all of the Mortgaged Properties (other than REO Properties) as
to which the related Borrower has not maintained insurance required by the
related Mortgage Loan or on all of the REO Properties, as the case may be, it
shall conclusively be deemed to have satisfied its respective obligations
concerning the maintenance of insurance coverage set forth in Section 3.08(a).
Any such blanket insurance policy shall be maintained with a Qualified Insurer.
A blanket insurance policy may contain a deductible clause, in which case the
Servicer or the Special Servicer, as applicable, shall, in the event that (i)
there shall not have been maintained on the related Mortgaged Property a policy
otherwise complying with the provisions of Section 3.08(a), and (ii) there shall
have been one or more losses which would have been covered by such a policy had
it been maintained, immediately deposit into the Collection Account from its own
funds the amount not otherwise payable under the blanket policy because of such
deductible clause to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard. In connection with its activities as Servicer or
Special Servicer hereunder, as applicable, the Servicer or the Special Servicer,
respectively, agrees to prepare and present, on behalf of itself, the Trustee
and Certificateholders, claims under any such blanket policy which it maintains
in a timely fashion in accordance with the terms of such policy and to take such
reasonable steps as are necessary to receive payment or permit recovery
thereunder.
(II) If the Servicer or Special Servicer, as applicable, causes any
Mortgaged Property or REO Property to be covered by a master force placed
insurance policy, such policy shall be issued by a Qualified Insurer and provide
no less coverage in scope and amount for such Mortgaged Property or REO Property
than the insurance required to be maintained pursuant to Section 3.08(a) in
which case the Servicer or Special Servicer shall conclusively be deemed to have
satisfied its respective obligations to maintain insurance pursuant to Section
3.08(a). Such policy may contain a deductible clause, in which case the Servicer
or the Special Servicer, as applicable, shall, in the event that (i) there shall
not have been maintained on the related Mortgaged Property or REO Property a
policy otherwise complying with the provisions of Section 3.08(a), and (ii)
there shall have been one or more losses which would have been covered by such a
policy had it been maintained, immediately deposit into the Collection Account
from its own funds the amount not otherwise payable under such policy because of
such deductible to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard.
(c) The Servicer and the Special Servicer shall maintain a
fidelity bond in the form and amount that would meet the servicing requirements
of prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer and the Special Servicer each shall be
deemed to have complied with this provision if one of its respective Affiliates
has such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Servicer and the Special Servicer,
as applicable. In addition, the Servicer and the Special Servicer shall keep in
force during the term of this Agreement a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its obligations to service the Mortgage Loans
hereunder in the form and amount that would meet the servicing requirements of
prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer or the Special Servicer shall cause
each and every sub-servicer for it to maintain, or cause to be maintained by any
agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer,
a fidelity bond and an errors and omissions insurance policy which satisfy the
requirements for the fidelity bond and the errors and omissions policy to be
maintained by the Servicer or the Special Servicer, as applicable, pursuant to
this Section 3.08(c). All fidelity bonds and policies of errors and omissions
insurance obtained under this Section 3.08(c) shall be issued by a Qualified
Insurer.
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged
Property, or
(ii) provides that such Mortgage Loan may not be assumed without
the consent of the related mortgagee in connection with any
such sale or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund other than
a Specially Serviced Mortgage Loan, the Servicer shall notify the Special
Servicer of requests for waiver of or any breach of any due-on-sale of which the
Servicer has actual knowledge and deliver copies of all related Mortgage Files
(either in electronic or hard copy form, as mutually agreed upon by the Servicer
and the Special Servicer) to the Special Servicer (and the Depositor will pay
the reasonable costs in obtaining such copies; provided, that if the Depositor
does not pay such costs within 30 days of the request thereof by the Servicer,
such costs shall constitute a Property Advance hereunder) and, except as
provided in the next sentence, the Special Servicer shall enforce such due on
sale clauses. With respect to all Mortgage Loans, the Special Servicer will be
solely responsible for making the determination in accordance with the Servicing
Standard and on behalf of the Trust Fund, whether to enforce such due-on-sale
clause and in connection therewith shall not be required to (x) accelerate
payments thereon or (y) withhold its consent to such an assumption if (A) such
provision is not exercisable under applicable law or such exercise is reasonably
likely to result in meritorious legal action by the Borrower or (B) the Special
Servicer determines, in accordance with the Servicing Standard, that permitting
such assumption or granting such consent would be likely to result in an equal
or greater recovery, on a present value basis (discounting at the related
Mortgage Rate) than would enforcement of such clause. If the Special Servicer
determines that permitting such assumption or granting of such consent would
likely result in an equal or greater recovery or such provision is not legally
enforceable, the Special Servicer is authorized to take or enter into an
assumption agreement from or with the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed, and to release the original
Borrower from liability upon the Mortgage Loan and substitute the new Borrower
as obligor thereon, provided, that (a) the credit status of the prospective new
Borrower is in compliance with the Special Servicer's regular commercial
mortgage origination or servicing standards and criteria and the terms of the
related Mortgage and (b) the Special Servicer has received written confirmation
from each Rating Agency that such assumption or substitution would not, in and
of itself, cause a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates; provided, however, that no such written
confirmation shall be required if the Stated Principal Balance of such Mortgage
Loan or group of cross-collateralized Mortgage Loans or group of Mortgage Loans
to affiliated Borrowers, as the case may be, is (x) for Fitch IBCA, not one of
the ten largest Mortgage Loans, by outstanding principal balance, in the Trust
Fund (including in such calculation any concentration of Mortgage Loans with
affiliated borrowers), (y) for Moody's (i) less than 2% of the total aggregate
Stated Principal Balance of the Mortgage Loans as of the day immediately prior
to the date of determination, (ii) not one of the ten largest Mortgage Loans, by
principal balance, in the Trust Fund (including in such calculation any
concentration of Mortgage Loans with affiliated borrowers) and (iii) less than
$15,000,000 and (z) for S&P (i) less than 5% of the total aggregate Stated
Principal Balance of the Mortgage Loans as of the day immediately prior to the
date of determination and (ii) less than $20,000,000. In connection with each
such assumption or substitution entered into by the Special Servicer, the
Special Servicer shall give prior written notice thereof to the Servicer. The
Special Servicer shall notify the Trustee that any such assumption or
substitution agreement has been completed by forwarding to the Trustee (with a
copy to the Servicer) the original copy of such agreement, which copies shall be
added to the related Mortgage File and shall, for all purposes, be considered a
part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof. In connection with the requirement
under this Section 3.09(a) that the Servicer notify the Special Servicer with
respect to any request for a consent to an assumption, the Servicer shall
provide ten (10) Business Days' notice of such request and shall provide all
information in the possession of the Servicer reasonably requested by the
Special Servicer. A Mortgage Loan will not be considered a Specially Serviced
Mortgage Loan solely due to any action taken by the Special Servicer under this
Section 3.09(a), and in connection with those responsibilities, the Special
Servicer will not be entitled to the Special Servicing Fee solely for any action
it takes under this Section 3.09(a).
(b) If any Mortgage Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation
of any lien or other encumbrance on the related Mortgaged
Property, or
(ii) requires the consent of the related mortgagee to the creation
of any such lien or other encumbrance on the related Mortgaged
Property,
then, except as provided in the next sentence, the Special Servicer shall
enforce such due-on-encumbrance clause. The Special Servicer, on behalf of the
Trust Fund, shall not be required to enforce such due-on-encumbrance clause and
in connection therewith will not be required to (x) accelerate the payments on
the related Mortgage Loan or (y) withhold its consent to such lien or
encumbrance, if the Special Servicer (A) determines, in accordance with the
Servicing Standard, that such enforcement would not be in the best interests of
the Trust Fund or, with respect to a consent, that granting such consent would
be consistent with the Servicing Standard and (B) receives prior written
confirmation from each of Fitch, S&P and Moody's that granting such consent
would not, in and of itself, cause a downgrade, qualification or withdrawal of
any of the then-current ratings assigned to the Certificates. The term
"encumbrance" as used in this Section 3.09(b) and in Section 3.28(b) shall be
deemed to exclude items which might ordinarily be considered by a title company
to be exceptions to title (e.g., leases, subordination, non-disturbance and
attornment agreements, easements and similar items) (collectively, "Beneficial
Title Exceptions") but which (i) are subordinate to the Mortgage, (ii) do not
adversely impact Debt Service Coverage Ratio and (iii) do not secure any debt;
provided, however, that the exception in question may secure debt of a tenant
under a lease in a Mortgaged Property so long as (a) such debt is only secured
by furniture, fixtures or equipment owned by the tenant (which are capable of
being removed without damaging the building which is a part of the Mortgaged
Property or the tenant is responsible for repairing any damage to such building
upon such removal) and the exception does not purport to encumber in any manner
the real estate which is a part of the Mortgaged Property, and (b) the Special
Servicer's consent to the exception otherwise meets the Servicing Standard. Such
Beneficial Title Exceptions shall not require the written confirmation from any
Rating Agency to the effect that such action would not result in the
qualification, downgrade, or withdrawal of the rating then assigned by such
Rating Agency to any Class of Certificates; provided, however, that the consent
by the Servicer or the Special Servicer, as the case may be, to such Beneficial
Title Exception shall be consistent with the Servicing Standard.
With respect to each Mortgage Loan that prohibits any mezzanine
financing or requires consent of the related mortgagee before the parent of the
borrower may incur mezzanine debt secured by the equity in such borrower, the
Special Servicer may provide such consent only after it has received written
confirmation from each Rating Agency that mezzanine additional debt would not,
in and of itself, cause a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates.
If pursuant to Section 3.28(b) the Servicer forwards to the Special
Servicer a request by the Borrower for consent to an encumbrance under this
Section 3.09(b) with respect to a non-Specially Serviced Mortgage Loan, such
non-Specially Serviced Mortgage Loan will not be considered a Specially Serviced
Mortgage Loan solely due to any action taken by the Special Servicer under this
Section 3.09(b), and in connection with those responsibilities, the Special
Servicer will not be entitled to the Special Servicing Fee solely for any action
it takes under this Section 3.09(b).
(c) Nothing in this Section 3.09 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any
action pursuant to this Section 3.09, the Special Servicer shall not agree to
modify, waive or amend, and no assumption or substitution agreement entered into
pursuant to Section 3.09(a) shall contain any terms that are different from, any
term of any Mortgage Loan or the related Note, other than pursuant to Section
3.29.
(e) With respect to any Mortgage Loan which permits release of
Mortgaged Properties through defeasance:
(i) In the event such Mortgage Loan permits or requires that the
Servicer, on behalf of the Trustee, purchase the required
non-callable U.S. government obligations backed by the full
faith and credit of the United States, sufficient to make all
payments on the related Note in accordance with its terms
("Defeasance Collateral"), the Servicer shall purchase or
cause to be purchased (upon receipt of sufficient funds from
the Borrower exercising such right of defeasance) such
obligations, at the Borrower's expense, in accordance with the
terms of such Mortgage Loan; provided, that the Servicer shall
not accept the amounts paid by the related Borrower to effect
defeasance until acceptable U.S. government obligations have
been identified.
(ii) To the extent permitted by such Mortgage Loan, the Servicer
shall require an Opinion of Counsel to the related Borrower
(which shall be an expense of the related Borrower) to the
effect that the Trustee has a first priority security interest
in the defeasance deposit and the Defeasance Collateral and
the assignment thereof is valid and enforceable; such opinion,
together with any other certificates or documents to be
required in connection with such defeasance shall be in form
and substance acceptable to each Rating Agency.
(iii) The Servicer shall require a certificate at the related
Borrower's expense from an Independent certified public
accountant certifying that the Defeasance Collateral complies
with the requirements of the related Loan Agreement or
Mortgage and are sufficient to make all payments under the
related Note on a timely basis (which, to the extent permitted
by the Mortgage Loan, shall be at Borrower's expense). The
Servicer shall provide to the Rating Agencies trade
confirmations or other appropriate evidence that establishes
that the projection of cash flows in this certificate based
upon the correct maturity dates and interest rates of the
securities actually purchased.
(iv) Prior to permitting release of any Mortgaged Property through
defeasance, if the related Mortgage Loan so requires and
provides for the related Borrower to pay the cost thereof, the
Servicer shall require an Opinion of Counsel of the related
Borrower to the effect that such release will not cause the
Upper-Tier REMIC, the Lower-Tier REMIC or any of the Loan
REMICs to fail to qualify as a REMIC at any time that any
Certificates are outstanding or cause a tax to be imposed on
the Trust Fund under the REMIC Provisions.
(v) Prior to permitting release of any Mortgaged Properties
through defeasance, or any assumption related to such
defeasance, to the extent not inconsistent with the related
Mortgage Loan, the Servicer shall obtain written confirmation
from each Rating Agency, that such defeasance would not, in
and of itself, result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to the
Certificates (which, to the extent permitted by the Mortgage
Loan documents, shall be at Borrower's expense).
(vi) In the event that the Borrower fails to pay for any expense
for which it is obligated as described in this Section
3.09(e), then the Servicer shall not purchase any non-callable
U.S. government obligations or consent to the proposed
defeasance. If the Servicer determines that (A) the Borrower
is not obligated under the Mortgage Loan documents to pay any
such expense or (B) failure to permit such defeasance in the
Servicer's reasonable judgment and in accordance with the
Servicing Standard would result in the Borrower defaulting
under the related Mortgage Loan and that such default would
result in a lesser net recovery with respect to the related
Mortgage Loan than would occur if the Servicer were to permit
such defeasance then the Servicer shall implement items
(i)-(v) above, in which case any expenses incurred by the
Servicer and not paid by the Borrower shall be reimbursable as
a Property Advance without triggering a Final Recovery
Determination.
(f) Prior to the defeasance of any Mortgaged Property, the
Depositor shall establish a special purpose entity (the "New SPE"), whose
organizational documents shall provide that its purpose is limited to the
acquisition of Defeasance Collateral and assumption of the related Mortgage Loan
in connection with this securitization, and any such other provisions as the
Rating Agencies may request. The Depositor shall also provide an Opinion of
Counsel with respect to nonconsolidation of the New SPE in form and substance
satisfactory to the Rating Agencies. To the extent consistent with the related
Loan Documents, the Servicer shall require the Borrower to transfer to the New
SPE any defeased Mortgage Loans and the related Defeasance Collateral, which
assignment shall be accepted by the New SPE.
(g) [Reserved]
(h) The Servicer may release the related Mortgaged Property for any
Note that is fully defeased, provided it has confirmed that the requirements set
forth above have been satisfied.
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage
Loans.
(a) Contemporaneously with the earliest of (i) the effective date
of any (A) modification of a Mortgage Rate, principal balance or amortization
terms of any Mortgage Loan, (B) extension of the Maturity Date of a Mortgage
Loan as described below in Section 3.29(a), or (C) consent to the release of any
Mortgaged Property or REO Property from the lien of the related Mortgage other
than pursuant to the terms of the related Mortgage Loan, (ii) the occurrence of
any Appraisal Reduction Event, (iii) 60 days after a default in the payment of a
Balloon Payment, or (iv) the date on which the Special Servicer, consistent with
the Servicing Standard, requests that an Updated Appraisal be obtained, the
Special Servicer shall obtain an Updated Appraisal (or a letter which updates an
existing appraisal which is less than two years old), the cost of which will
constitute a Property Advance.
(b) Upon the occurrence of a material default under a Specially
Serviced Mortgage Loan, except as otherwise specifically provided in Section
3.09(a) and (b), the Special Servicer may, consistent with the Servicing
Standard, accelerate such Specially Serviced Mortgage Loan and commence a
foreclosure or other acquisition with respect to the related Mortgaged Property
or Properties, provided, that the Special Servicer determines that such
acceleration and foreclosure are more likely to produce a greater recovery to
Certificateholders on a present value basis (discounting at the related Mortgage
Rate) than would a waiver of such default or an extension or modification in
accordance with the provisions of Section 3.29 hereof. In connection with any
foreclosure or other acquisition, subject to the second paragraph of Section
3.04(a), the Servicer shall pay the costs and expenses in any such proceedings
as an Advance unless the Servicer determines, in its good faith judgment, that
such Advance would constitute a Nonrecoverable Advance. The Servicer shall be
entitled to reimbursement of Advances (with interest at the Advance Rate) made
pursuant to the preceding sentence to the extent permitted by Section 3.06(ii),
(iii) and (vii).
(c) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state or locality where the
Mortgaged Property is located, the Special Servicer shall not be required to
pursue a deficiency judgment against the related Borrower or any other liable
party if the laws of the state or locality do not permit such a deficiency
judgment after a non-judicial foreclosure or if the Special Servicer determines,
in its best judgment, that the likely recovery if a deficiency judgment is
obtained will not be sufficient to warrant the cost, time, expense and/or
exposure of pursuing the deficiency judgment and such determination is evidenced
by an Officers' Certificate delivered to the Trustee.
(d) In the event that title to any Mortgaged Property is acquired
in foreclosure or by deed in lieu of foreclosure, the deed or certificate of
sale shall be issued to the Trustee, or to its nominee (which shall not include
the Special Servicer) or a separate trustee or co-trustee on behalf of the
related Loan REMIC Residual Interest, the related Loan REMIC Regular Interest
and the Lower-Tier Regular Interests and Certificateholders. Notwithstanding any
such acquisition of title and cancellation of the related Mortgage Loan, such
Mortgage Loan shall (except for purposes of Section 9.01) be considered to be an
REO Mortgage Loan held in the Trust Fund until such time as the related REO
Property shall be sold by the Trust Fund and shall be reduced only by
collections net of expenses. Consistent with the foregoing, for purposes of all
calculations hereunder, so long as such Mortgage Loan shall be considered to be
an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the
indebtedness evidenced by the related Note shall have been
discharged, such Note and, for purposes of determining the
Stated Principal Balance thereof, the related amortization
schedule in effect at the time of any such acquisition of
title shall remain in effect; and
(ii) Subject to Section 1.02(b), Net REO Proceeds received in any
month shall be applied to amounts that would have been payable
under the related Note in accordance with the terms of such
Note. In the absence of such terms, Net REO Proceeds shall be
deemed to have been received first in payment of the accrued
interest (not including Excess Interest) that remained unpaid
on the date that the related REO Property was acquired by the
Trust Fund; second in respect of the delinquent principal
installments that remained unpaid on such date; and
thereafter, Net REO Proceeds received in any month shall be
applied to the payment of installments of principal and
accrued interest on such Mortgage Loan deemed to be due and
payable in accordance with the terms of such Note and such
amortization schedule until such principal has been paid in
full and then to Excess Interest and other amounts due under
such Mortgage Loan. If such Net REO Proceeds exceed the
Monthly Payment then payable, the excess shall be treated as a
Principal Prepayment received in respect of such Mortgage
Loan.
(e) Notwithstanding any provision herein to the contrary, the
Special Servicer shall not acquire for the benefit of the Trust Fund any
personal property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an
Opinion of Counsel (which opinion shall be an expense of the
Lower-Tier REMIC) to the effect that the holding of such
personal property by the respective REMIC will not cause the
imposition of a tax on the related Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC under the REMIC Provisions or
cause the related Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(f) Notwithstanding any provision to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to any direct or indirect partnership interest or other equity interest in
any Borrower pledged pursuant to any pledge agreement unless the Special
Servicer shall have requested and received an Opinion of Counsel (which opinion
shall be an expense of the Trust Fund) to the effect that the holding of such
partnership interest or other equity interest by the Trust Fund will not cause
the imposition of a tax on any Loan REMIC, the Lower-Tier REMIC or Upper-Tier
REMIC under the REMIC Provisions or cause any Loan REMIC, the Lower-Tier REMIC
or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(g) Notwithstanding any provision to the contrary contained in
this Agreement, the Special Servicer shall not, on behalf of the Trust Fund,
obtain title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or the Certificateholders,
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of, such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an environmental assessment report prepared by an Independent Person
who regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an
environmental consultant, that it would be in the best
economic interest of the Trust Fund to take such actions as
are necessary to bring such Mortgaged Property in compliance
therewith, and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under
any currently effective federal, state or local law or
regulation, or that, if any such Hazardous Materials are
present for which such action could be required, after
consultation with an environmental consultant, it would be in
the best economic interest of the Trust Fund to take such
actions with respect to the affected Mortgaged Property.
In the event that the environmental assessment first obtained by the
Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders. Any such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of this Section 3.10.
(h) The environmental assessment contemplated by Section 3.10(g)
shall be prepared within three months of the determination that such assessment
is required by any Independent Person who regularly conducts environmental
audits for purchasers of commercial property where the Mortgaged Property is
located and who has at least five (5) years of experience conducting
environmental audits, as determined by the Special Servicer in a manner
consistent with the Servicing Standard. Subject to the second paragraph of
Section 3.04(a), the Servicer shall advance the cost of preparation of such
environmental assessments unless the Servicer determines, in its good faith
judgment, that such Advance would be a Nonrecoverable Advance. The Special
Servicer shall provide such information as reasonably requested by the Servicer
to determine whether such Advance, if made, would be a Nonrecoverable Advance.
The Servicer shall be entitled to reimbursement of Advances (with interest at
the Advance Rate) made pursuant to the preceding sentence in the manner set
forth in Section 3.06.
(i) If the Special Servicer determines pursuant to Section
3.10(g)(i) that a Mortgaged Property is not in compliance with applicable
environmental laws but that it is in the best economic interest of the Trust
Fund to take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, or if the Special Servicer determines pursuant to Section
3.10(g)(ii) that the circumstances referred to therein relating to Hazardous
Materials are present but that it is in the best economic interest of the Trust
Fund to take such action with respect to the containment, clean-up or
remediation of Hazardous Materials affecting such Mortgaged Property as is
required by law or regulation, the Special Servicer shall take such action as it
deems to be in the best economic interest of the Trust Fund, but only if the
Trustee has mailed notice to the Holders of the Regular Certificates of such
proposed action, which notice shall be prepared by the Special Servicer, and
only if the Trustee does not receive, within 30 days of such notification,
instructions from the Holders of greater than 50% of the aggregate Voting Rights
of such Classes directing the Special Servicer not to take such action.
Notwithstanding the foregoing, if the Special Servicer reasonably determines
that it is likely that within such 30-day period irreparable environmental harm
to such Mortgaged Property would result from the presence of such Hazardous
Materials and provides a prior written statement to the Trustee setting forth
the basis for such determination, then the Special Servicer may take such action
to remedy such condition as may be consistent with the Servicing Standard. None
of the Trustee, the Servicer or the Special Servicer shall be obligated to take
any action or not take any action pursuant to this Section 3.10(i) at the
direction of the Certificateholders unless the Certificateholders agree to
indemnify the Trustee, the Servicer and the Special Servicer with respect to
such action or inaction. Subject to the second paragraph of Section 3.04(a), the
Servicer shall advance the cost of any such compliance, containment, clean-up or
remediation unless the Servicer determines, in its good faith judgment, that
such Advance would constitute a Nonrecoverable Advance.
(j) The Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed or
regarding any cancellation of indebtedness with respect to any Mortgage Loan
based upon information provided by the Special Servicer. The Special Servicer
hereby agrees to provide the Servicer with written notification of all
information necessary for the Servicer to make such filings. Such notification
shall be delivered by the Special Servicer for receipt by the Servicer no later
than January 7 of each year during the term hereof by Federal Express or other
reputable national overnight carrier addressed to the two addresses for the
Servicer set forth in Section 10.04 hereof (as changed from time to time by
Servicer in accordance with the terms and provisions thereof). If the Special
Servicer fails or refuses to timely provide such information to the Servicer as
set forth in the immediately preceding sentence with respect to any particular
abandonment or foreclosure (i) the Servicer shall have no liability for any
failure to file such return and (ii) the Special Servicer shall be solely
responsible for any penalties and curative efforts required or imposed by the
IRS. The Servicer or the Special Servicer, as the case may be, shall deliver a
copy of any such report to the Trustee.
(k) The costs of any Updated Appraisal obtained pursuant to this
Section 3.10 shall be paid by the Servicer as an Advance and shall be
reimbursable from the Collection Account (or from the Cash Collateral Account to
the extent Advances are otherwise reimbursable therefrom pursuant to this
Section 3.10).
Section 3.11 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Servicer shall promptly notify the Trustee or
the Custodian by a certification (which certification shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Collection Account
pursuant to Section 3.05 have been or will be so deposited) of a Servicing
Officer and shall request delivery to it of the Mortgage File. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Servicer or Special Servicer
and delivery to the Trustee and the Custodian of a Request for Release, the
Trustee shall promptly cause the Custodian to release the Mortgage File (or any
portion thereof) designated in such Request for Release to the Servicer or
Special Servicer, as applicable. Upon return of the foregoing to the Custodian,
or in the event of a liquidation or conversion of the Mortgage Loan into an REO
Property, receipt by the Trustee of a certificate of a Servicing Officer stating
that such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be deposited
into the Collection Account or Distribution Account have been so deposited, or
that such Mortgage Loan has become an REO Property, the Custodian shall deliver
a copy of the Request for Release to the Servicer or Special Servicer, as
applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section 3.12 Servicing Fees, Trustee Fees and Special
Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer
shall be entitled to the Servicing Fee with respect to each Mortgage Loan, which
fee shall be payable from amounts on deposit in the Collection Account as set
forth in Section 3.06(iv). The Servicing Fee with respect to the Henry W. Oliver
Loan and the Geneva Crossing Loan shall be an expense of the Lower-Tier REMIC
with respect to the related Loan REMIC Regular Interest. Late payment charges
and Net Default Interest actually collected on Specially Serviced Mortgage Loans
accruing while such Mortgage Loans are Specially Serviced Mortgage Loans shall
be promptly paid to the Special Servicer by the Servicer and shall not be
required to be deposited in the Collection Account. The Servicer's rights to the
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all or part of the Servicer's responsibilities and
obligations under this Agreement. In addition, the Servicer shall be entitled to
receive, as additional Servicing Compensation, (i) any interest or other income
earned on amounts on deposit in the Collection Account maintained by the
Servicer and investment income earned on amounts on deposit in Borrower Accounts
(to the extent consistent with the related Mortgage Loan) with respect to the
Mortgage Loans serviced by it (to the extent such interest or other income is
not required to be paid to the related Borrower pursuant to the terms of the
related Mortgage Loan or applicable law) and (ii) to the extent permitted by
applicable law and the related Mortgage Loans (and not otherwise payable to the
Special Servicer pursuant to Section 3.12(b)), any late payment charges, 50% of
the Assumption Fees for non-Specially Serviced Mortgage Loans, 50% of the
assumption processing fees on non-Specially Serviced Mortgage Loans, loan
modification fees for modifications done by the Servicer in accordance with
Section 3.29(c), loan service transaction fees, Net Default Interest, Prepayment
Interest Excess with respect to all Mortgage Loans in excess of any Prepayment
Interest Shortfalls with respect to the Mortgage Loans (other than Mortgage
Loans that permit prepayments on a date other than a Due Date and other than
Specially Serviced Mortgage Loans), beneficiary statement charges or similar
items (but not including any Prepayment Premiums), in each case to the extent
received and not required to be deposited or retained in the Collection Account
pursuant to Section 3.05; provided, however, that the Servicer shall not be
entitled to apply or retain any amounts as additional compensation, any late
payment charges with respect to any Mortgage Loan with respect to which a
default or event of default thereunder has occurred and is continuing unless and
until such default or event of default has been cured and all delinquent amounts
(including any Default Interest) due with respect to such Mortgage Loan have
been paid. Notwithstanding the foregoing, the aggregate Servicing Fee on all
Mortgage Loans and investment income earned on any Principal Prepayments during
the related Collection Period and due to the Servicer on any Distribution Date
shall be reduced as provided in the definition of Servicer Prepayment Interest
Shortfalls applicable to the Servicer.
Except as otherwise provided herein, the Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder,
including all fees of any sub-servicers retained by it (but excluding any Other
Servicers or Other Special Servicers).
(b) (x) The Special Servicer shall receive a Work Out Fee with
respect to each Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the
"Work Out Fee" will be payable out of, and will be calculated by application of
a "Work Out Fee Rate" of 1% to, each collection of interest (other than Default
Interest and Excess Interest), principal (including scheduled payments,
prepayments and Balloon Payments at maturity) and Prepayment Premiums received
on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The
Work Out Fee with respect to any Corrected Mortgage Loan will cease to be
payable if such loan again becomes a Specially Serviced Mortgage Loan or if the
related Mortgage Property becomes an REO Property. A new Work Out Fee will
become payable if and when such Mortgage Loan again becomes a Corrected Mortgage
Loan. If the Special Servicer is terminated (other than for cause) or resigns,
it shall retain the right to receive any and all Work Out Fees payable with
respect to Mortgage Loans that became Corrected Mortgage Loans during the period
that it acted as Special Servicer and remained Corrected Mortgage Loans at the
time of such termination or resignation. The successor Special Servicer will not
be entitled to any portion of such Work Out Fees.
(i) The Special Servicer shall receive a "Liquidation Fee" with
respect to each Specially Serviced Mortgage Loan as to which
the Special Servicer obtains a full or discounted payoff from
the related Borrower and, except as otherwise described below,
with respect to any Specially Serviced Mortgage Loan or REO
property as to which the Special Servicer receives any
liquidation proceeds. As to each such Specially Serviced
Mortgage Loan and REO Property, the Liquidation Fee will be
payable from, and will be calculated by application of a
"Liquidation Fee Rate" of 1% to, the related payment or
proceeds (other than any portion thereof that represents a
recovery of Default Interest or Excess Interest).
Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of
liquidation proceeds received in connection with:
(A) the repurchase of any Mortgage Loan by a Mortgage Loan
Seller or NHA for a breach of representation or warranty
so long as such repurchase occurs within the 180-day
cure period;
(B) the purchase of any Specially Serviced Mortgage Loan or
REO Property by the Special Servicer;
(C) the purchase of all of the Mortgage Loans and REO
Properties by the Depositor, the Special Servicer, the
Servicer or the holders of the Class LR Certificates
representing greater than a 50% Percentage Interest of
the Class LR Certificates in connection with an optional
termination of the Trust Fund; or
(D) any amount received in connection with the defeasance of
a Mortgage Loan.
(ii) As compensation for its activities hereunder, the Special
Servicer shall be entitled with respect to each Specially
Serviced Mortgage Loan, REO Mortgage Loan or Corrected
Mortgage Loan to the Special Servicing Compensation, which
shall be payable from amounts on deposit in the Collection
Account as set forth in Section 3.06(iv). The Special
Servicer's rights to the Special Servicing Compensation 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. In
addition, the Special Servicer shall be entitled to receive,
as Special Servicing Compensation, (i) to the extent permitted
by applicable law and the related Loan Documents, any
Assumption Fees, any assumption processing fees for Specially
Serviced Mortgage Loan and extension or other fees relating to
any Specially Serviced Mortgage Loan or with respect to
servicing activities performed by the Special Servicer on any
Specially Serviced Mortgage Loan, and, with respect to any
Non-Specially Serviced Mortgage Loan, fees for any
modification (other than modification fees due to the Servicer
pursuant to Section 3.12(a)), extension or other action by the
Special Servicer and 50% of any Assumption Fees and extension
or other fees payable by the related Borrower in connection
therewith; and (ii) any interest or other income earned on
deposits in the REO Accounts.
Except as otherwise provided herein, the Special Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder.
(c) As compensation for its activities hereunder on each
Distribution Date, the Trustee shall be entitled to the Trustee Fee with respect
to each Mortgage Loan and which shall be payable from amounts on deposit in the
Distribution Account as set forth in Section 3.06(v). The Trustee shall pay the
routine fees and expenses of the Certificate Registrar, the Paying Agent, the
Custodian and the Authenticating Agent. The Trustee's rights to the Trustee Fee
may not be transferred in whole or in part except in connection with the
transfer of all of the Trustee's responsibilities and obligations under this
Agreement. Except as otherwise provided herein, the Trustee shall pay all
expenses incurred by it in connection with its activities hereunder.
(d) The Servicer, Special Servicer and Trustee shall be entitled to
reimbursement from the Trust Fund for the costs and expenses incurred by them in
the performance of their duties under this Agreement which are "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(iii); provided that any such costs and expenses that
constitute Property Advances will be reimbursable in accordance with the
provisions of this Agreement that relate to Property Advances. Such expenses
shall include, by way of example and not by way of limitation, environmental
assessments, Updated Appraisals and appraisals in connection with foreclosure or
determination of recoverability of an Advance, the fees and expenses of any
administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.06(vii). All such costs and expenses shall be treated
as costs and expenses of the Lower-Tier REMIC or the applicable Loan REMIC.
(e) No provision of this Agreement or of the Certificates shall
require the Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
expend or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the exercise
of any of their rights or powers, if, in the good faith business judgment of the
Servicer, Special Servicer, Trustee or Fiscal Agent, as the case may be,
repayment of such funds would not be ultimately recoverable from late payments,
Net Insurance Proceeds, Net Liquidation Proceeds and other collections on or in
respect of the Mortgage Loans, or from adequate indemnity from other assets
comprising the Trust Fund against such risk or liability.
If the Servicer, the Special Servicer or the Trustee receives a
request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Servicer's or the Trustee's good faith
business judgment require the assistance of Independent legal counsel or other
consultant to the Servicer, the Special Servicer or the Trustee, the cost of
which would not be an expense of the Trust Fund hereunder, then the Servicer,
the Special Servicer or the Trustee, as the case may be, shall not be required
to take any action in response to such request or inquiry unless the Borrower or
such Certificateholder or such other Person, as applicable, makes arrangements
for the payment of the Servicer's, the Special Servicer's or the Trustee's
expenses associated with such counsel (including, without limitation, posting an
advance payment for such expenses) satisfactory to the Servicer, the Special
Servicer or the Trustee, as the case may be, in its sole discretion. Unless such
arrangements have been made, the Servicer, the Special Servicer or the Trustee,
as the case may be, shall have no liability to any Person for the failure to
respond to such request or inquiry.
Section 3.13 Reports to the Trustee; Collection Account
Statements.
(a) The Servicer shall deliver to the Trustee, the Special Servicer
and the Rating Agencies, no later than 1:00 p.m. Central time on the Business
Day prior to the Servicer Remittance Date prior to each Distribution Date (in
electronic format acceptable to the Servicer, the Special Servicer and the
Trustee), the Servicer Remittance Report with respect to the related
Distribution Date (which shall include, without limitation, the amount of
Available Funds for the related Distribution Date) including a written statement
of anticipated P&I Advances for the related Distribution Date. The Servicer's
responsibilities under this Section 3.13(a) with respect to REO Mortgage Loans
shall be subject to the satisfaction of the Special Servicer's obligations under
Section 3.26.
(b) For so long as the Servicer makes deposits into and withdrawals
from the Collection Account, not later than fifteen days after each Distribution
Date, the Servicer shall forward to the Trustee and the Fiscal Agent a statement
prepared by the Servicer setting forth the status of the Collection Account as
of the close of business on the last Business Day of the related Collection
Period and showing the aggregate amount of deposits into and withdrawals from
the Collection Account of each category of deposit specified in Section 3.05 and
each category of withdrawal specified in Section 3.06 for the related Collection
Period. The Trustee and its agents and attorneys may at any time during normal
business hours, upon reasonable notice, inspect and copy the books, records and
accounts of the Servicer solely relating to the Mortgage Loans and the
performance of its duties hereunder. The Trustee will reimburse the Servicer for
reasonable costs and expenses (including copying costs) incurred by the Servicer
in connection with such inspection by the Trustee or its agents or attorneys.
(c) No later than 3:00 p.m. Central time on the Servicer Remittance
Date, the Servicer shall deliver or cause to be delivered to the Trustee,
Special Servicer and the Rating Agencies (in electronic format acceptable to the
Servicer, Special Servicer and the Trustee) the following reports with respect
to the Mortgage Loans (and, if applicable, the related REO Properties),
providing the required information as of the Due Date: (i) a Comparative
Financial Status Report, (ii) a Delinquent Loan Status Report; (iii) an
Historical Loss Estimate Report; (iv) an Historical Loan Modification Report;
(v) an REO Status Report; (vi) CSSA Reports; (vii) a Loan Payoff Notification
Report, (viii) a Premium Loan Report and (ix) a Watch List. Such reports shall
be presented on a computer readable medium reasonably acceptable to the Trustee
and the Servicer. The information that pertains to Specially Serviced Mortgage
Loans and REO Properties and historic loss estimates and historic loan
modifications reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Servicer by 2:00 p.m. Central Time at
least two Business Days prior to the related Servicer Remittance Date in the
form required by Section 3.13(f) or shall be provided by means of such reports
so delivered by the Special Servicer to the Servicer in the form so required.
Absent manifest error, the Servicer shall be entitled to conclusively rely upon,
without investigation or inquiry, the information and reports delivered to it by
the Special Servicer and the Trustee shall be entitled to conclusively rely upon
the Servicer's reports and the Special Servicer's reports and the Other
Servicer's reports without any duty or obligation to recompute, verify or
recalculate any of the amounts and other information stated therein (and such
reports may include any reasonable disclaimers with respect to information
provided by third parties or with respect to assumptions required to be made in
the preparation of such reports as the Servicer or the Special Servicer deems
appropriate). In the case of information or reports to be furnished by the
Servicer to the Trustee pursuant to this Section 3.13, to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.26(c) and this Section 3.13 and to the extent that such reports are
to be prepared and delivered by the Special Servicer pursuant to Section 3.26(c)
and this Section 3.13, for so long as the Servicer is not the Special Servicer,
the Servicer shall have no obligation to provide such information or reports
until it has received such information or reports from the Special Servicer and
the Servicer shall not be in default hereunder due to a delay in providing the
reports required by this Section 3.13 to the extent caused by the Special
Servicer's failure to timely provide any report required under Section 3.26(c)
and this Section 3.13.
(d) The Servicer shall deliver or cause to be delivered to the
Trustee and, except for the rent rolls and operating statements provided for
below, the Special Servicer (in electronic format mutually acceptable to the
Servicer, the Special Servicer and the Trustee), and promptly after its receipt
thereof, the Trustee shall deliver to the Depositor, each Underwriter and each
Rating Agency and, upon request, shall make available to the Certificateholders
and any potential investor in the Certificates, the following materials, in each
case to the extent that such materials or the information on which they are
based have been received by the Servicer:
(i) At least annually by June 30th, commencing on June 30, 2000,
with respect to each Mortgage Loan and REO Property (to the
extent prepared by and received from the Special Servicer in
the case of any Specially Serviced Mortgage Loan or REO
Property), an Operating Statement Analysis for the related
Mortgaged Property or REO Property as of the end of the
preceding calendar year (but only to the extent the Special
Servicer has received such information from the Servicer at
the time of the servicing transfer pursuant to Section 3.26
necessary to prepare the related Operating Statement Analysis
on a prospective basis), to the Trustee and the Rating
Agencies, copies of the operating statements and rent rolls,
to the Trustee, S&P and Moody's (but only to the extent the
related Borrower is required by the Mortgage to deliver, or
otherwise agrees to provide such information and, with respect
to operating statements and rent rolls for Specially Serviced
Mortgage Loans and REO Properties, only to the extent
requested or obtained by the Special Servicer) for the related
Mortgaged Property or REO Property as of the end of the
preceding fiscal year. The Servicer shall use its best
reasonable efforts consistent with the Servicing Standard to
obtain said annual operating statements and rent rolls with
respect to each of the Mortgage Loans other than Specially
Serviced Mortgage Loans or REO Properties.
(ii) Within thirty days after receipt by the Servicer (or within 10
days of receipt from the Special Servicer in the case of a
Specially Serviced Mortgage Loan or REO Property), of any
annual operating statements with respect to any Mortgaged
Property or REO Property (to the extent prepared by and
received from the Special Servicer in the case of any
Specially Serviced Mortgage Loan or REO Property), an NOI
Adjustment Worksheet for such Mortgaged Property (and, to the
Trustee and the Rating Agencies, the annual operating
statements attached thereto as an exhibit) (and such reports
may include any reasonable disclaimers with respect to
information provided by third parties or with respect to
assumptions required to be made in the preparation of such
reports as the Servicer or the Special Servicer deems
appropriate).
The Servicer shall maintain one Operating Statement Analysis report for each
Mortgaged Property and REO Property (to the extent prepared by and received from
the Special Servicer in the case of any REO Property or any Mortgaged Property
constituting security for a Specially Serviced Mortgage Loan). The Operating
Statement Analysis report for each Mortgaged Property (other than any such
Mortgaged Property which is REO Property or constituted or constitutes security
for a Specially Serviced Mortgage Loan) is to be updated by the Servicer and
such updated report delivered to the Trustee, the Special Servicer and S&P (in
electronic format) within thirty days after receipt by the Servicer of updated
operating statements for such Mortgaged Property. The Servicer will use the
"Normalized" column from the NOI Adjustment Worksheet to update the Operating
Statement Analysis report and will use any operating statements received with
respect to any Mortgaged Property (other than any such Mortgaged Property which
is REO Property or constitutes security for a Specially Serviced Mortgage Loan)
to update the Operating Statement Analysis report for such Mortgaged Property,
such updates to be completed and copies thereof sent to the Trustee and the
Special Servicer within thirty days after receipt of the necessary information
(and such reports may include any reasonable disclaimers with respect to
information provided by third parties or with respect to assumptions required to
be made in the preparation of such reports as the Servicer or the Special
Servicer deems appropriate).
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Servicer the information required pursuant to this Section
3.13(d) with respect to Specially Serviced Mortgage Loans and REO Mortgage Loans
on or before June 10th of each year, commencing on June 10, 2000, and within 15
days after its receipt of any operating statement for any related Mortgaged
Property or REO Property.
(e) No later than 3:00 p.m. Central time on the Servicer
Remittance Date, beginning in December 1999, the Servicer shall prepare and
deliver to the Trustee, the Special Servicer and each Rating Agency, a Watch
List of all Mortgage Loans that the Servicer has determined are in jeopardy of
becoming Specially Serviced Mortgage Loans. For this purpose, Mortgage Loans
that are in jeopardy of becoming Specially Serviced Mortgage Loans shall be: (i)
Mortgage Loans having a current Debt Service Coverage Ratio that is 80% or less
of the trailing twelve-month Debt Service Coverage Ratio as of the Cut-off Date
(as stated on Annex A to the Prospectus) or having a current trailing
twelve-month Debt Service Coverage Ratio that is less than 1.05x (other than
Credit Lease Loans), (ii) Mortgage Loans as to which any required inspection of
the related Mortgaged Property conducted by the Servicer indicates a problem
that the Servicer determines can reasonably be expected to materially adversely
affect the cash flow generated by such Mortgaged Property, (iii) Mortgage Loans
which have come to the Servicer's attention in the performance of its duties
under this Agreement (without any expansion of such duties by reason hereof)
that (A) any tenant occupying 25% or more of the space in the related Mortgaged
Property has vacated (without being replaced by a comparable tenant and lease)
or been the subject of bankruptcy or similar proceedings or (B) relate to a
borrower or an affiliate that is the subject of a bankruptcy or similar
proceeding, (iv) Mortgage Loans that are at least one Collection Period
delinquent in payment, and (v) Mortgage Loans that are within 6 months of
maturity (and such reports may include any reasonable disclaimers with respect
to information provided by third parties or with respect to assumptions required
to be made in the preparation of such reports as the Servicer or the Special
Servicer deems appropriate).
The Special Servicer shall report to the Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Servicer and the Special Servicer shall provide to each other and to the
Trustee written notice of any event that comes to their knowledge with respect
to a Mortgage Loan or REO Property that the Servicer or the Special Servicer,
respectively, determines, in accordance with Servicing Standards, would have a
material adverse effect on such Mortgage Loan or REO Property, which notice
shall include an explanation as to the reason for such material adverse effect.
(f) By 2:00 p.m. Central Time, at least one Business Day prior to
each Servicer Remittance Date, the Special Servicer shall deliver, or cause to
be delivered, to the Servicer, the Rating Agencies and, upon the request of any
of the Trustee, the Depositor or the Underwriters, to such requesting party, the
following reports with respect to the Specially Serviced Mortgage Loans (and, if
applicable, any REO Properties) (and, as to clauses (ii) and (iii), with respect
to all Mortgage Loans), providing the required information as of the Due Date:
(i) a Delinquent Loan Status Report; (ii) an Historical Loss Estimate Report;
(iii) an Historical Loan Modification Report; (iv) an REO Status Report; (v)
Comparative Financial Status Reports with respect to all Specially Serviced
Mortgage Loans and REO Properties; (vi) a Loan Payoff Notification Report with
respect to all Specially Serviced Mortgage Loans; (vii) CSSA Reports and (viii)
a Premium Loan Report with respect to all Specially Serviced Mortgage Loans.
Such reports shall be presented in writing and on a computer readable magnetic
medium (and such reports may include any reasonable disclaimers with respect to
information provided by third parties or with respect to assumptions required to
be made in the preparation of such reports as the Servicer or the Special
Servicer deems appropriate).
(g) The Special Servicer shall deliver or cause to be delivered to
the Servicer, and the Rating Agencies and, upon the request of any of the
Trustee, the Depositor or the Underwriters, to such requesting party, the
following materials, in each case to the extent that such materials or the
information on which they are based have been received by the Special Servicer:
(i) Annually, on or before June 10 of each year, commencing with
June 10, 2000, with respect to each Specially Serviced
Mortgage Loan and REO Mortgage Loan, an Operating Statement
Analysis for the related Mortgaged Property or REO Property as
of the end of the preceding calendar year (but only to the
extent the Special Servicer has received such information from
the Servicer at the time of the servicing transfer pursuant to
Section 3.26 necessary to prepare the related Operating
Statement Analysis on a prospective basis), together with
copies of the operating statements and rent rolls (which are
required to be delivered pursuant to the related Mortgage
File) for the related Mortgaged Property or REO Property as of
the end of the preceding calendar year. The Special Servicer
shall use its best reasonable efforts to obtain said annual
operating statements and rent rolls with respect to each
Mortgaged Property constituting security for a Specially
Serviced Mortgage Loan and each REO Property.
(ii) Within 20 days of receipt by the Special Servicer of any
annual operating statements with respect to any Mortgaged
Property relating to a Specially Serviced Mortgage Loan, or at
least six months of operating information with respect to any
REO Property, an NOI Adjustment Worksheet for such Mortgaged
Property or REO Property (with the annual operating statements
attached thereto as an exhibit).
The Special Servicer shall maintain one Operating Statement Analysis report for
each Mortgaged Property securing a Specially Serviced Mortgage Loan and REO
Property. The Operating Statement Analysis report for each Mortgaged Property
which constitutes security for a Specially Serviced Mortgage Loan or is a REO
Property is to be updated by the Special Servicer and such updated report
delivered to the Servicer within 20 days after receipt by the Special Servicer
of updated operating statements for each such Mortgaged Property. In addition,
the Special Servicer shall provide each such report to the Servicer in the
then-applicable CSSA format. The Special Servicer will use the "Normalized"
column from the NOI Adjustment Worksheet to update the Operating Statement
Analysis report and will use any operating statements received with respect to
any Mortgaged Property which constitutes security for a Specially Serviced
Mortgage Loan or is a REO Property to update the Operating Statement Analysis
report for such Mortgaged Property, such updates to be completed and copies
thereof sent to the Servicer within 20 days after receipt of the necessary
information.
(h) The Trustee shall be entitled to rely conclusively on and
shall not be responsible for the content or accuracy of any information provided
to it by the Servicer or the Special Servicer pursuant to this Agreement.
Section 3.14 Annual Statement as to Compliance.
The Servicer and the Special Servicer (the "reporting person") each
shall deliver to the Trustee, the Depositor and to the Rating Agencies on or
before March 15 of each year, beginning with March 15, 2001, an Officer's
Certificate stating, as to each signatory thereof, (i) that a review of the
activities of the reporting person during the preceding calendar year (or such
shorter period from the Closing Date to the end of the related calendar year)
and of its performance under this Agreement has been made under such officer's
supervision, (ii) that, to the best of such officer's knowledge, based on such
review, the reporting person has fulfilled its obligations under this Agreement
in all material respects throughout such year (or such shorter period), or, if
there has been a material default in the fulfillment of any such obligation,
specifying each such default known to such officer, the nature and status
thereof and what action it proposes to take with respect thereto, (iii) that, to
the best of such officer's knowledge, each related sub-servicer has fulfilled
its obligations under its sub-servicing agreement in all material respects, or,
if there has been a material default in the fulfillment of such obligations,
specifying each such default known to such officer and the nature and status
thereof, and (iv) whether it has received any notice regarding qualification, or
challenging the status, of any of the Upper-Tier REMIC, Lower-Tier REMIC or the
Loan REMICs as a REMIC or the portion of the Trust Fund exclusive of the Trust
REMICs and the Loan REMICs as a grantor trust from the IRS or any other
governmental agency or body.
Section 3.15 Annual Independent Public Accountants'
Servicing Report.
On or before March 15 of each year, beginning with March 15, 2001,
the Servicer and the Special Servicer (the "reporting person") each at the
reporting person's expense shall cause a firm of nationally recognized
Independent public accountants (who may also render other services to the
reporting person) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to the
Trustee, the Depositor and to the Rating Agencies, to the effect that such firm
has examined certain documents and records relating to the servicing of the
similar mortgage loans under similar agreements for the prior calendar year and
that, on the basis of such examination conducted substantially in compliance
with generally accepted auditing standards and the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FHLMC, such servicing has been conducted in compliance with similar agreements
except for such significant exceptions or errors in records that, in the opinion
of such firm, generally accepted auditing standards and the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FHLMC require it to report, in which case such exceptions and
errors shall be so reported. Each reporting person shall obtain from the related
accountants, or shall prepare, an electronic version of each Accountant's
Statement and provide such electronic version to the Trustee for filing in
accordance with the procedures set forth in Section 3.22 hereof. With respect to
any electronic version of an Accountant's Statement prepared by the reporting
person, the reporting person shall receive written confirmation from the related
accountants that such electronic version is a conformed copy of the original
Accountant's Statement.
Section 3.16 Access to Certain Documentation.
The Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded only upon reasonable request and
during normal business hours at the offices of the Servicer or Special Servicer.
Nothing in this Section 3.16 shall require the Servicer and Special Servicer to
violate, in the judgment of the Servicer or Special Servicer, as applicable, any
applicable law prohibiting disclosure of information with respect to the
Borrowers, and the failure of the Servicer or Special Servicer to provide access
as provided in this Section 3.16 as a result of such law shall not constitute a
breach of this Section 3.16. The Servicer or the Special Servicer may require
that such party execute a reasonable confidentiality agreement customary in the
industry with respect to such information.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder or any regulatory
authority that may exercise authority over a Certificateholder, the Servicer and
the Special Servicer may each require payment from such Certificateholder of a
sum sufficient to cover the reasonable costs and expenses of providing such
information or access, including, without limitation, copy charges and, in the
case of any such party requiring on site review in excess of three Business
Days, reasonable fees for employee time and for space; provided that no charge
may be made if such information or access was required to be given or made
available under applicable law without charge.
Section 3.17 Title and Management of REO Properties.
(a) In the event that title to any Mortgaged Property is acquired
for the benefit of Certificateholders in foreclosure, by deed in lieu of
foreclosure or upon abandonment or reclamation from bankruptcy, the deed or
certificate of sale shall be taken in the name of the Trustee, or its nominee,
on behalf of the Certificateholders, and itself as Holder of the related Loan
REMIC Regular Interest, the related Loan REMIC Residual Interest and the
Lower-Tier Regular Interests. The Special Servicer, on behalf of the Trust Fund,
shall dispose of any REO Property prior to the close of the third calendar year
beginning after the year in which the Trust Fund acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless (i) the Special
Servicer on behalf of the Lower-Tier REMIC or the related Loan REMIC, as
applicable, has applied for an extension of such period pursuant to Sections
856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Special Servicer
shall sell such REO Property within the applicable extension period or (ii) the
Special Servicer seeks and subsequently receives an Opinion of Counsel (which
opinion shall be an expense of the Trust Fund), addressed to the Special
Servicer and Trustee, to the effect that the holding by the Trust Fund of such
REO Property for an additional specified period will not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (determined without regard to the exception applicable
for purposes of Section 860D(a) of the Code) at any time that any Certificate is
outstanding, in which event such period shall be extended by such additional
specified period subject to any conditions set forth in such Opinion of Counsel.
The Special Servicer, on behalf of the Trust Fund, shall dispose of any REO
Property held by the Trust Fund prior to the last day of such period (taking
into account extensions) by which such REO Property is required to be disposed
of pursuant to the provisions of the immediately preceding sentence in a manner
provided under Section 3.18 hereof. The Special Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for the
purpose of its prompt disposition and sale in a manner which does not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a)).
(b) The Special Servicer shall have full power and authority,
subject only to the specific requirements and prohibitions of this Agreement, to
do any and all things in connection with any REO Property as are consistent with
the manner in which the Special Servicer manages and operates similar property
owned or managed by the Special Servicer or any of its Affiliates, all on such
terms and for such period as the Special Servicer deems to be in the best
interests of Certificateholders, and, in connection therewith, the Special
Servicer shall agree to the payment of management fees that are consistent with
general market standards. Consistent with the foregoing, the Special Servicer
shall cause or permit to be earned with respect to such REO Property any "net
income from foreclosure property," within the meaning of Section 860G(c) of the
Code, which is subject to tax under the REMIC Provisions only if it has
determined, and has so advised the Trustee in writing, that the earning of such
income on a net after-tax basis could reasonably be expected to result in a
greater recovery on behalf of Certificateholders than an alternative method of
operation or rental of such REO Property that would not be subject to such a
tax. The Special Servicer shall segregate and hold all revenues received by it
with respect to any REO Property separate and apart from its own funds and
general assets and shall establish and maintain with respect to any REO Property
a segregated custodial account (each, an "REO Account"), each of which shall be
an Eligible Account and shall be entitled "LaSalle Bank National Association, as
Trustee, in trust for Holders of Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2, REO Account." The REO
Property and the related REO Account with respect to the Geneva Crossing Loan
and the Henry W. Oliver Loan shall be treated as assets of the related Loan
REMIC for all purposes of this Agreement. The Special Servicer shall be entitled
to withdraw for its account any interest or investment income earned on funds
deposited in an REO Account to the extent provided in Section 3.07(b). The
Special Servicer shall deposit or cause to be deposited in the REO Account
within one Business Day after receipt all revenues received by it with respect
to any REO Property (other than Liquidation Proceeds), and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property and for other Property Protection Expenses with respect to
such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO
Property;
(ii) all real estate taxes and assessments in respect of any REO
Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any REO
Property; and
(iv) any taxes imposed on the Upper Tier REMIC, the Lower-Tier
REMIC or the related Loan REMIC in respect of net income from
foreclosure property in accordance with Section 4.05.
To the extent that such REO Proceeds are insufficient for the
purposes set forth in clauses (i) through (iii) above and the Special Servicer
has provided written notice of such shortfall to the Servicer at least five
Business Days (or such lesser period as may be necessary, in the reasonable
opinion of the Special Servicer, to prevent a material adverse effect on any
Mortgaged Property but in no event less than two Business Days) prior to the
date that such amounts are due, the Servicer shall advance the amount of such
shortfall as a Property Advance unless the Servicer determines, in its good
faith judgment, that such Advance would be a Nonrecoverable Advance; provided,
however, the Special Servicer shall make reasonable efforts to request Advances
once in any 30 day period to satisfy all such shortfalls. The Special Servicer
shall reasonably cooperate with the Servicer in providing any information
required to determine whether an Advance would be a Nonrecoverable Advance and
the Servicer shall reasonably cooperate with the Special Servicer in providing
any information required to determine whether an Advance would be a
Nonrecoverable Advance. If the Servicer does not make any such Advance in
violation of the immediately preceding sentence, the Trustee shall make such
Advance; and if the Trustee fails to make any such Advance, the Fiscal Agent
shall make such Advance, unless in either case, the Trustee or the Fiscal Agent
determines that such Advance would be a Nonrecoverable Advance. The Trustee and
the Fiscal Agent shall be entitled to rely, conclusively, on any determination
by the Servicer that an Advance, if made, would be a Nonrecoverable Advance. The
Trustee and the Fiscal Agent, in determining whether or not a proposed Advance
would be a Nonrecoverable Advance, shall be subject to the standards applicable
to the Servicer hereunder. The Servicer, the Trustee or the Fiscal Agent, as
applicable, shall be entitled to reimbursement of such Advances (with interest
at the Advance Rate) made pursuant to the preceding sentence, to the extent set
forth in Section 3.06. The Special Servicer shall withdraw from each REO Account
and remit to the Servicer for deposit into the Collection Account on a monthly
basis prior to or on the related Due Date the Net REO Proceeds received or
collected from each REO Property, except that in determining the amount of such
Net REO Proceeds, the Special Servicer may retain in each REO Account reasonable
reserves for repairs, replacements and necessary capital improvements and other
related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease, if the New Lease by its terms will give rise to any
income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease, other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on any REO Property,
other than the repair or maintenance thereof or the completion
of a building or other improvement thereon, and then only if
more than ten percent of the construction of such building or
other improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate any
REO Property on any date more than 90 days after its date of
acquisition by the Trust Fund, unless such Person is an
Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code) at any
time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an
Independent Contractor the fees and expenses of which shall be an expense of the
Trust Fund and payable out of REO Proceeds, for the operation and management of
any REO Property, within 90 days of the Trust Fund's acquisition thereof (unless
the Special Servicer shall have provided the Trustee with an Opinion of Counsel
that the operation and management of any REO Property other than through an
Independent Contractor shall not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Code Section 860G(a)(8)) (which
opinion shall be an expense of the Trust Fund), provided that:
(i) the terms and conditions of any such contract shall be
reasonable and customary for the area and type of property and
shall not be inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and
expenses incurred in connection with the operation and
management of such REO Property, including those listed above,
and remit all related revenues (net of such costs and
expenses) to the Special Servicer as soon as practicable, but
in no event later than 30 days following the receipt thereof
by such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b) relating to any
such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of
any of its duties and obligations to the Trust Fund or the
Trustee on behalf of the Certificateholders with respect to
the operation and management of any such REO Property; and
(iv) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties
and obligations in connection with the operation and
management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(c) Promptly following any acquisition by the Trust Fund of an REO
Property, the Special Servicer shall obtain an Updated Appraisal thereof, but
only in the event that any Appraisal or Updated Appraisal with respect thereto
is more than 12 months old, in order to determine the fair market value of such
REO Property and shall notify the Depositor, the Servicer and the Trustee hereto
of the results of such appraisal. Any such appraisal shall be conducted by an
appraiser who is an MAI and the cost thereof shall be an expense of the Trust
Fund. The Special Servicer shall obtain a new Updated Appraisal or a letter
update every 12 months thereafter.
(d) When and as necessary, the Special Servicer shall deliver to
the Trustee a statement prepared by the Special Servicer setting forth the
amount of net income or net loss, as determined for federal income tax purposes,
resulting from the operation and management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any other amount not constituting Rents from Real Property in respect
of, any REO Property in accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Sale of Specially Serviced Mortgage Loans and
REO Properties.
(a) The Special Servicer may offer to sell to any Person any
Specially Serviced Mortgage Loan or any REO Property, or may offer to purchase
any Specially Serviced Mortgage Loan or any REO Property, if and when the
Special Servicer determines, consistent with the Servicing Standard, that no
satisfactory arrangements can be made for collection of delinquent payments
thereon and such a sale would be in the best economic interests of the Trust
Fund. With respect to any Specially Serviced Mortgage Loan or REO Property which
the Special Servicer has determined to sell in accordance with the foregoing,
the Special Servicer shall deliver to the Trustee an Officers' Certificate (
with a copy to the Servicer) to the effect that pursuant to the terms hereof,
the Special Servicer has determined to sell such Specially Serviced Mortgage
Loan or REO Property in accordance with this Section 3.18. The Special Servicer
may then offer to sell to any Person any Specially Serviced Mortgage Loan or any
REO Property or, subject to the following sentence, purchase any such Specially
Serviced Mortgage Loan or REO Property (in each case at the Repurchase Price
therefor), but shall, in any event, so offer to sell any REO Property no later
than the time determined by the Special Servicer to be sufficient to result in
the sale of such REO Property within the period specified in Section 3.17(a).
The Special Servicer shall deliver such Officers' Certificate and give the
Servicer and the Trustee not less than ten Business Days' prior written notice
of its intention to sell any Specially Serviced Mortgage Loan or REO Property,
in which case the Special Servicer shall accept the highest offer received from
any Person for any Specially Serviced Mortgage Loan or any REO Property in an
amount at least equal to the Repurchase Price therefor or, at its option, if it
has received no offer at least equal to the Repurchase Price therefor, purchase
the Specially Serviced Mortgage Loan or REO Property at the Repurchase Price.
In the absence of any such offer or purchase by the Special
Servicer, the Special Servicer shall accept the highest offer received from any
Person that is determined by the Special Servicer to be a fair price, as
determined in accordance with Section 3.18(b), for such Specially Serviced
Mortgage Loan or REO Property, if the highest offeror is a Person other than an
Interested Person, or is determined to be a fair price by the Trustee in
accordance with Section 3.18(b), if the highest offeror is an Interested Person;
provided, that the Trustee shall be entitled to engage, at the expense of the
Trust Fund, an Independent appraiser to determine whether the highest offer is a
fair price and, further provided, that if the highest offeror is an Interested
Person such offer shall not be accepted if it is less than the Repurchase Price,
unless the Rating Agencies have confirmed, in writing, that such acceptance will
not, in itself, result in the qualification, downgrade or withdrawal of the
then-current ratings assigned to the Certificates. Notwithstanding anything to
the contrary herein, neither the Trustee, in its individual capacity, nor any of
its Affiliates may make an offer or purchase any Specially Serviced Mortgage
Loan or any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such offer would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower offer if it determines, in
accordance with the Servicing Standard, that acceptance of such offer would be
in the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer (other than price)
are more favorable), provided that the offeror is not an Affiliate of the
Special Servicer. In the event that the Special Servicer determines with respect
to any REO Property that the offers being made with respect thereto are not in
the best interests of the Certificateholders and that the end of the period
referred to in Section 3.17(a) with respect to such REO Property is approaching,
the Special Servicer shall seek an extension of such period in the manner
described in Section 3.17(a); provided, however, that the Special Servicer shall
use its best efforts, consistent with the Servicing Standard, to sell any REO
Property prior to the Rated Final Distribution Date.
(b) In determining whether any offer received from an Interested
Person represents a fair price for any Specially Serviced Mortgage Loan or any
REO Property, the Trustee shall engage, at the expense of the Trust Fund, an
Independent appraiser to determine whether the higher offer is a fair price, and
the Trustee may conclusively rely on the opinion of an Independent appraiser or
other Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a fair
price for any Specially Serviced Mortgage Loan or any REO Property, the Special
Servicer (if the highest offeror is not an Interested Person) or the Trustee
(or, if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into account,
as applicable, among other factors, any Updated Appraisal previously obtained,
the period and amount of any delinquency on the affected Specially Serviced
Mortgage Loan, the physical (including environmental) condition of the related
Mortgaged Property or such REO Property, the state of the local economy and the
Trust Fund's obligation to dispose of any REO Property within the time period
specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special
Servicer shall act on behalf of the Trust Fund in negotiating and taking any
other action necessary or appropriate in connection with the sale of any
Specially Serviced Mortgage Loan or REO Property, including the collection of
all amounts payable in connection therewith. Any sale of a Specially Serviced
Mortgage Loan or any REO Property shall be without recourse to, or
representation or warranty by, the Trustee, the Fiscal Agent, the Depositor, the
Servicer, the Special Servicer or the Trust Fund (except that any contract of
sale and assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust Fund),
and, if such sale is consummated in accordance with the duties of the Special
Servicer, the Servicer, the Depositor, the Fiscal Agent and the Trustee pursuant
to the terms of this Agreement, no such Person who so performed shall have any
liability to the Trust Fund or any Certificateholder with respect to the
purchase price therefor accepted by the Special Servicer or, if the offeror is
an Interested Person, the Servicer (or the Trustee, if the Servicer is an
offeror).
(d) The Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with the IRS at the time and
in the manner required by the Code based upon information provided by the
Special Servicer. The Special Servicer hereby agrees to provide the Servicer
with written notification of all information necessary for the Servicer to make
such filings. Such notification shall be delivered by the Special Servicer for
receipt by the Servicer no later than January 7 of each year during the term
hereof by Federal Express or other reputable national overnight carrier
addressed to the two addresses for the Servicer set forth in Section 10.04
hereof (as changed from time to time by Servicer in accordance with the terms
and provisions thereof). If the Special Servicer fails or refuses to timely
provide such information to the Servicer as set forth in the immediately
preceding sentence with respect to any particular abandonment or foreclosure (i)
the Servicer shall have no liability for any failure to file such return and
(ii) the Special Servicer shall be solely responsible for any penalties and
curative efforts required or imposed by the IRS.
(e) The proceeds of any sale after deduction of the expenses of
such sale incurred in connection therewith shall be promptly, and in any event
within one Business Day following receipt thereof, deposited in the Collection
Account in accordance with Section 3.05(a)(iv).
Section 3.19 Additional Obligations of the Servicer and
Special Servicer; Inspections.
(a) The Servicer shall inspect or cause to be inspected (at its
own expense) each Mortgaged Property (other than those Mortgaged Properties
relating to Specially Serviced Mortgage Loans or REO Properties) securing a Note
with a Stated Principal Balance (or in the case of a Note secured by more than
one Mortgaged Property, an Allocated Loan Amount) of (A) $5,000,000 or more at
least once every 12 months (other than Mortgage Properties securing Credit Lease
Loans), (B) less than $5,000,000 at least once every 24 months and (C) with
respect to a Mortgaged Property securing a Credit Lease Loan, at least once
every 24 months, in each case, such period commencing in November 1999,
provided, however, that in the event the Trustee notifies the Special Servicer
that the long-term unsecured debt rating of the credit tenant or guarantor with
respect to the Credit Lease Loan is downgraded by a full letter rating since
origination by either Rating Agency, then such Mortgaged Property or Mortgaged
Properties securing such Credit Lease Loan shall be inspected by the Special
Servicer within six months of such downgrade and, thereafter, at least once
every 24 months. If any Mortgage Loan (i) becomes a Specially Serviced Mortgage
Loan, (ii) has a Debt Service Coverage Ratio of less than 1.0 (except with
respect to Credit Lease Loans), or with respect to Credit Lease Loans, the
related credit tenant has defaulted or (iii) is delinquent for 60 days, each
Mortgaged Property related to such Specially Serviced Mortgage Loan shall be
inspected by the Special Servicer as soon as practicable and thereafter at least
every 12 months for so long as such condition exists. The Servicer or Special
Servicer, as applicable, shall send to the Rating Agencies (providing the Rating
Agencies have not provided instructions to the contrary) within 45 days of
completion, each inspection report. For any Mortgage Loans serviced by the
Servicer, the Special Servicer may inspect a Mortgaged Property upon at least 30
days notice to the Servicer of its intent. Upon completion of the inspection of
such Mortgaged Property, the Special Servicer shall provide a copy of the
inspection report for such property to the Servicer, and Servicer shall be
relieved of its then-current obligation to inspect such property.
The Special Servicer, at its own expense, shall have the right to
inspect Mortgaged Properties that are on the Watch List, provided that the
Special Servicer notifies the Servicer prior to such inspection and provides a
copy of the inspection report for such property to the Servicer. Any such
inspection by the Special Servicer shall be deemed to be the inspection required
pursuant to the immediately preceding paragraph.
The Servicer shall, as to each Mortgage Loan which is secured by the
interest of the related mortgagor under a ground lease promptly (and in any
event within 60 days of the date on which the Servicer receives the Mortgage
Loan Schedule) notify the related ground lessor of the transfer of such Mortgage
Loan to the Trustee on behalf of 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 Trustee and the Servicer.
(b) With respect to each Mortgage Loan (subject to the rights of
the Servicer pursuant to Section 3.29(c)), the Special Servicer shall enforce
the Trustee's rights with respect to the Manager under the related Loan
Documents and Management Agreement, provided, that, if such right accrues under
the related Loan Documents or Management Agreement only because of the
occurrence of the related Anticipated Repayment Date, if any, the Special
Servicer shall irrevocably waive such right with respect to such date. In the
event the Special Servicer is entitled to terminate the Manager, the Special
Servicer shall promptly give notice to the Trustee (who shall copy the
Certificateholders), the Originator, the Servicer, the Depositor and each Rating
Agency.
Section 3.20 Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Depositor and the Servicer and must be a corporation organized and doing
business under the laws of the United States of America or any state, having a
principal office and place of business in a state and city acceptable to the
Depositor and the Servicer, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities. The Trustee shall
serve as the initial Authenticating Agent and the Trustee hereby accepts such
appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee, the Depositor or
the Servicer. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent, the Depositor and the Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 3.20, the Trustee promptly shall appoint a successor
Authenticating Agent, which shall be acceptable to the Depositor, and shall mail
notice of such appointment to all Certificateholders. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 3.20.
The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee. Any
reasonable compensation paid to the Authenticating Agent shall be an
unreimbursable expense of the Trustee.
Section 3.21 Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a
portion of the Mortgage Files as agent for the Trustee, by entering into a
Custodial Agreement. The Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against the
Custodian for the benefit of the Certificateholders. Each Custodian shall be a
depository institution subject to supervision by federal or state authority,
shall have a combined capital and surplus of at least $10,000,000, shall have a
long-term debt rating of at least "BBB" from Fitch, "BBB" from S&P and "Baa2"
from Moody's, unless the Trustee shall have received prior written confirmation
from each Rating Agency that the appointment of such Custodian would not cause
such Rating Agency to withdraw, qualify or downgrade any of its then-current
ratings on the Certificates, and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File. Each Custodial Agreement may
be amended only as provided in Section 10.07. Any reasonable compensation paid
to the Custodian shall be an unreimbursable expense of the Trustee. The Trustee
shall serve as the initial Custodian. The Custodian shall maintain a fidelity
bond in the form and amount that are customary for securitizations similar to
the securitization evidenced by this Agreement, with the Trustee named as loss
payee. The Custodian shall be deemed to have complied with this provision if one
of its respective Affiliates has such fidelity bond coverage and, by the terms
of such fidelity bond, the coverage afforded thereunder extends to the
Custodian. In addition, the Custodian shall keep in force during the term of
this Agreement a policy or policies of insurance covering loss occasioned by the
errors and omissions of its officers and employees in connection with its
obligations hereunder in the form and amount that are customary for
securitizations similar to the securitization evidenced by this Agreement, with
the Trustee named as loss payee. All fidelity bonds and policies of errors and
omissions insurance obtained under this Section 3.21 shall be issued by a
Qualified Insurer, or shall be otherwise acceptable to the Rating Agencies.
Section 3.22 Reports to the Securities and Exchange
Commission; Available Information.
(a) The Trustee shall prepare and sign, on behalf of the
Depositor, any and all Exchange Act Reports; provided, however, that the
Depositor shall prepare, sign and file with the Commission the initial Form 8-K
relating to the Trust Fund. Each Exchange Act Report consisting of a monthly
Distribution Date Statement, Comparative Financial Status Report, Delinquent
Loan Status Report, Historical Loss Estimate Report, Historical Loan
Modification Report, REO Status Report, Operating Statement Analysis, NOI
Adjustment Worksheet, Watch List, Loan Payoff Notification Report, Premium Loan
Report or report pursuant to Section 4.02(b) shall be prepared as an exhibit or
exhibits to a Form 8-K. Each Exchange Act Report consisting of an Annual
Compliance Report shall be prepared as exhibits to an Annual Report on Form 10-K
and shall identify the aggregate number of Holders of Public Certificates and
Depository Participants holding positions in Public Certificates as of December
31 (or the nearest Business Day if such date is not a Business Day) of the
related year. For each Exchange Act Report, the Trustee shall prepare (i) a
manually-signed paper version of such report and (ii) an electronic version of
such report, which version shall be prepared as a ASCII Text, Microsoft Word(TM)
or Excel(TM) file (or in such other format as the Trustee, the Depositor and the
Servicer or the Special Servicer may agree), provided, that, with respect to the
electronic version of each Exchange Act Report consisting of a monthly
Distribution Date Statement, the Servicer need only deliver an electronic
version of the related Form 8-K and the Trustee shall attach an electronic
version of the related monthly Distribution Date Statement thereto as an
exhibit. Exchange Act Reports consisting of (i) a monthly Distribution Date
Statement shall be filed by the Trustee within ten days after the related
Distribution Date; (ii) a Comparative Financial Status Report, Delinquent Loan
Status Report, Historical Loss Estimate Report, Historical Loan Modification
Report, REO Status Report, Operating Statement Analysis, NOI Adjustment
Worksheet, Watch List, Loan Payoff Notification Report, Premium Loan Report or
report pursuant to Section 4.02(b) shall be filed within ten days after each
Distribution Date; and (iii) an Annual Compliance Report shall be filed on or
prior to March 15 of each calendar year. Electronic versions of each Exchange
Act Report shall be delivered to the Trustee on a computer diskette in ASCII
Text, Microsoft Word(TM) or Excel (TM) format (delivered by courier in packaging
designed to shield such diskette from damage in transmission) or by means of
electronic data transfer system mutually agreed upon by the Trustee and the
Servicer or Special Servicer. The Trustee shall forward each Exchange Act Report
to the Depositor (and its attorneys, Cadwalader, Wickersham & Taft, Attn: Anna
H. Glick) in a manner and in a format agreed upon by the Trustee and the
Depositor. Manually-signed copies of each Exchange Act Report shall be delivered
to the Depositor at the address set forth in Section 10.04 to the attention of
Nez Mustafic, with a copy to Marshall Brozost, Esq. (or such other Persons as
are designated in writing by the Depositor), with a copy to the Trustee.
If information for any Exchange Act Report is incomplete by the date
on which such report is required to be filed under the Exchange Act, the Trustee
or, with respect to any Annual Compliance Report which is incomplete or not
timely delivered to the Trustee relating to the Special Servicer or the
Servicer, the Special Servicer or the Servicer, as applicable, shall prepare and
execute a Form 12b-25 under the Exchange Act and shall deliver an electronic
version of such form to the Trustee for forwarding to the Depositor as provided
above. The Servicer or the Special Servicer, as applicable, shall deliver the
related report in electronic form (ASCII Text, Microsoft Word(TM) or Excel(TM),
as the case may be) to the Trustee when such information is available and such
completed report shall be filed by the Trustee with the SEC and forwarded
electronically by the Trustee to the Depositor.
None of the Servicer, the Special Servicer and the Trustee shall (i)
file a Form ID with respect to the Depositor or (ii) cause the Trust Fund to
stop filing reports, statements and information with the Commission pursuant to
this Section unless directed to do so by the Depositor or the continued
reporting is prohibited under the Exchange Act or any regulations thereunder.
Upon the written request of the Depositor, the Trustee shall file a Form 15
relating to the Trust Fund with the Commission and send a copy thereof to the
Trustee and the Depositor.
The Trustee shall, at the written direction of the Depositor,
solicit any and all proxies of the Certificateholders whenever such proxies are
required to be solicited pursuant to the Exchange Act.
(b) The Servicer or the Special Servicer with respect to Specially
Serviced Mortgage Loans shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement
that provides that such information shall be used solely for purposes of
evaluating the investment characteristics of the Certificates be executed to the
extent the Servicer, or the Special Servicer with respect to Specially Serviced
Mortgage Loans, deems such action to be necessary or appropriate), also, make
available any information relating to the Mortgage Loans, the Mortgaged
Properties or the Borrowers, for review by the Depositor, the Rating Agencies
and any other Persons to whom the Servicer, or the Special Servicer with respect
to Specially Serviced Mortgage Loans, believes such disclosure is appropriate,
in each case except to the extent doing so is prohibited by applicable law or by
any related Loan Documents related to a Mortgage Loan. In connection with
providing or granting any information or access pursuant to this paragraph, the
Servicer and the Special Servicer may require payment from the Depositor, or
other Persons (other than the Rating Agencies) of a sum sufficient to cover the
reasonable costs and expenses of providing such information or access,
including, without limitation, copy charges and, in the case of any such party
requiring on-site review in excess of three Business Days, reasonable fees for
employee time and for space; provided that no charge may be made if such
information or access was required to be given or made available under
applicable law. The Servicer or the Special Servicer may require that such party
execute a reasonable confidentiality agreement customary in the industry with
respect to such information.
(c) The Servicer and the Special Servicer shall make available at
their offices during normal business hours, or send to the requesting party at
the expense of each such requesting party (other than the Rating Agencies and
the Depositor) for review by the Depositor, the Trustee, the Rating Agencies,
any Certificateholder, any Person identified to the Servicer or the Special
Servicer, as applicable, by a Certificateholder as a prospective transferee of a
Certificate and any other Persons to whom the Servicer or the Special Servicer,
as applicable, believes such disclosure to be appropriate the following items:
(i) all financial statements, occupancy information, rent rolls, retail sales
information, average daily room rates and similar information received by the
Servicer or the Special Servicer, as applicable, from each Borrower, (ii) the
inspection reports prepared by or on behalf of the Servicer or the Special
Servicer, as applicable, in connection with the property inspections pursuant to
Section 3.19, (iii) any and all modifications, waivers and amendments of the
terms of a Mortgage Loan entered into by the Servicer or the Special Servicer,
as applicable and (iv) any and all officer's certificates and other evidence
delivered to the Trustee and the Depositor to support the Servicer's
determination that any Advance was, or if made would be, a Nonrecoverable
Advance. Copies of any and all of the foregoing items shall be available from
the Servicer or the Special Servicer, as applicable, or the Trustee, as
applicable, upon request. Nothing in this Section 3.22(c) shall require the
Servicer or the Special Servicer to violate, in the judgment of the Servicer or
the Special Servicer, as applicable, any applicable law prohibiting disclosure
of information with respect to Borrower and the failure of the Servicer or the
Special Servicer to provide access as provided under this Section 3.22(c) as a
result of such law shall not constitute a breach of this Section. The Servicer
or the Special Servicer may require that such party execute a reasonable
confidentiality agreement customary in the industry with respect to such
information.
(d) Notwithstanding the obligations of the Trustee set forth in
the preceding provisions of this Section 3.22, the Trustee, Servicer or Special
Servicer may withhold any information not yet included in a Form 8-K filed with
the Commission or otherwise made publicly available with respect to which it has
determined that such withholding is appropriate.
(e) Notwithstanding any provisions in this Agreement to the
contrary, the Trustee shall not be required to review the content of any
Exchange Act Report for compliance with applicable securities laws or
regulations, completeness, accuracy or otherwise, and the Trustee shall not have
any liability with respect to any Exchange Act Report filed with the Commission
or delivered to Certificateholders. None of the Servicer, the Special Servicer
and the Trustee shall be responsible for the accuracy or completeness of any
information supplied by a Borrower or a third party for inclusion in any Form
8-K, and each of the Servicer, the Special Servicer and the Trustee shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to any statement
or omission or alleged statement or omission therein. None of the Trustee, the
Special Servicer, and the Servicer shall have any responsibility or liability
with respect to any Exchange Act Report filed by the Depositor, and each of the
Servicer, the Special Servicer and the Trustee shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to any statement or omission or
alleged statement or omission therein.
Section 3.23 Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts.
The Servicer shall administer each Lock-Box Account, Cash Collateral
Account, Escrow Account and Reserve Account in accordance with the related
Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box
Agreement, if any.
Section 3.24 Property Advances.
(a) The Servicer (or, to the extent provided in Section 3.24(b),
the Trustee or the Fiscal Agent) shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof. For purposes of
distributions to Certificateholders and compensation to the Servicer, Special
Servicer or Trustee, Property Advances shall not be considered to increase the
principal balance of any Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so provide.
(b) The Servicer shall notify the Trustee, the Special Servicer
and the Fiscal Agent, in writing promptly upon, and in any event within one
Business Day after, becoming aware that it will be unable to make any Property
Advance required to be made pursuant to the terms hereof, and in connection
therewith, shall set forth in such notice the amount of such Property Advance,
the Person to whom it will be paid, and the circumstances and purpose of such
Property Advance, and shall set forth therein information and instructions for
the payment of such Property Advance, and, on the later of (i) the date
specified in such notice for the payment of such Property Advance and (ii) the
fifth Business Day following such notice, the Trustee, subject to the provisions
of Section 3.24(c), shall pay the amount of such Property Advance in accordance
with such information and instructions. If the Trustee fails to make any
Property Advance required to be made under this Section 3.24, the Fiscal Agent,
subject to the provisions of Section 3.24(c), shall make such Advance on the
same day the Trustee was required to make such Property Advance and, thereby,
the Trustee shall not be in default under this Agreement.
(c) None of the Servicer, the Trustee or the Fiscal Agent shall be
obligated to make a Property Advance as to any Mortgage Loan or REO Property if
the Servicer, the Trustee or the Fiscal Agent, as applicable, determines in its
good faith business judgment that such Advance will be a Nonrecoverable Advance.
The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Servicer, that a Property Advance, if made, would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent, in determining whether
or not a Property Advance previously made is, or a proposed Property Advance, if
made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Servicer hereunder.
(d) The Servicer, the Trustee and/or the Fiscal Agent, as
applicable, shall be entitled to the reimbursement of Property Advances made by
any of them to the extent permitted pursuant to Section 3.06(ii) of this
Agreement, together with any related Advance Interest Amount in respect of such
Property Advances, and the Servicer hereby covenants and agrees to promptly seek
and effect the reimbursement of such Property Advances from the related
Borrowers to the extent permitted by applicable law and the related Loan
Documents.
Section 3.25 Appointment of Special Servicer.
(a) Lennar Partners, Inc. is hereby appointed as the initial
Special Servicer to service each Specially Serviced Mortgage Loan.
(b) The Directing Holders (at the sole cost of the Directing
Holders and without cost to the Trust Fund) shall be entitled to remove the
Special Servicer with or without cause and to appoint a successor Special
Servicer, provided that each Rating Agency confirms to the Trustee in writing
that such removal and appointment, in and of itself, would not cause a
downgrade, qualification or withdrawal of the then-current ratings assigned to
any Class of Certificates. If there is a Special Servicer Event of Default, the
Special Servicer shall be removed and replaced pursuant to Sections 7.01(c) and
7.02.
(c) The appointment of any such successor Special Servicer, shall
not relieve the Servicer, the Trustee or the Fiscal Agent of their respective
obligations to make Advances as set forth herein; provided, however, the
Servicer shall not be liable for any actions or any inaction of such successor
Special Servicer.
(d) No termination of the Special Servicer and appointment of a
successor Special Servicer shall be effective until the successor Special
Servicer has assumed all of its responsibilities, duties and liabilities
hereunder pursuant to a writing satisfactory to the Trustee and each Rating
Agency, as evidenced in writing, and the Trustee has received written
confirmation from each Rating Agency that such appointment would not cause any
Rating Agency to qualify, withdraw or downgrade any of its then-current ratings
on any Certificates. Any successor Special Servicer shall make the
representations and warranties provided for in Section 2.04(a) mutatis mutandis.
Section 3.26 Transfer of Servicing Between Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan has become a Specially
Serviced Mortgage Loan, the Servicer shall promptly give notice thereof to the
Special Servicer and shall use its reasonable best efforts to provide the
Special Servicer with all information, documents (but excluding the original
documents constituting the Mortgage File) 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 duties hereunder with respect thereto without acting through a
sub-servicer. The Servicer shall use its reasonable best efforts to comply with
the preceding sentence within five Business Days of the date such Mortgage Loan
became a Specially Serviced Mortgage Loan and in any event shall continue to act
as Servicer and administrator of such Mortgage Loan until the Special Servicer
has commenced the servicing of such Mortgage Loan, which shall occur upon the
receipt by the Special Servicer of the information, documents and records
referred to in the preceding sentence, provided that receipt of copies of all
documents in the Mortgage File shall suffice for such purpose. With respect to
each Mortgage Loan that becomes a Specially Serviced Mortgage Loan, the Servicer
shall instruct the related Borrower to continue to remit all payments in respect
of such Mortgage Loan to the Servicer. The Servicer or Special Servicer, as
applicable, may agree that, notwithstanding the preceding sentence, with respect
to each Mortgage Loan that became a Specially Serviced Mortgage Loan, the
Servicer shall instruct the related Borrower to remit all payments in respect of
such Mortgage Loan to the Special Servicer, provided that the payee in respect
of such payments shall remain the Servicer. The Special Servicer shall remit to
the Servicer any such payments received by it pursuant to the preceding sentence
within one Business Day of receipt. The Servicer shall forward any notices it
would otherwise send to the Borrower of a Specially Serviced Mortgage Loan to
the Special Servicer who shall send such notice to the related Borrower.
Upon determining that no event has occurred and is continuing with
respect to a Mortgage Loan that causes such Mortgage Loan to be a Specially
Serviced Mortgage Loan, the Special Servicer shall immediately give notice
thereof to the Servicer, and upon giving such notice, such Mortgage Loan shall
cease to be a Specially Serviced Mortgage Loan in accordance with the first
proviso of the definition of Specially Serviced Mortgage Loan, the Special
Servicer's obligation to service such Mortgage Loan shall terminate and the
obligations of the Servicer to service and administer such Mortgage Loan as a
Mortgage Loan that is not a Specially Serviced Mortgage Loan shall resume. In
addition, if the related Borrower has been instructed, pursuant to the last
sentence of the preceding paragraph, to make payments to the Special Servicer,
upon such determination, the Special Servicer shall instruct the related
Borrower to remit all payments in respect of such Specially Serviced Mortgage
Loan directly to the Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the Special
Servicer shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Servicer.
(c) Not later than 3:00 p.m. Central Time on the Business Day
preceding each date on which the Servicer is required to furnish a report under
Section 3.13(a) to the Trustee, the Special Servicer shall deliver to the
Trustee, with a copy to the Servicer a written statement describing, on a
Mortgage Loan by Mortgage Loan basis (for all Mortgage Loans for which the
Special Servicer is collecting the payments thereon), (i) the amount of all
payments on account of interest received on each Specially Serviced Mortgage
Loan, the amount of all payments on account of principal, including Principal
Prepayments, on each Specially Serviced Mortgage Loan, the amount of Net
Insurance Proceeds and Net Liquidation Proceeds received with respect to each
Specially Serviced Mortgage Loan, and the amount of net income or net loss, as
determined from management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
rental income that does not constitute Rents from Real Property with respect to
the REO Property relating to each applicable Specially Serviced Mortgage Loan,
in each case in accordance with Section 3.17 and (ii) such additional
information relating to the Specially Serviced Mortgage Loans as the Servicer,
or Trustee reasonably requests to enable it to perform its duties under this
Agreement.
(d) Notwithstanding the provisions of the preceding subsection
(c), the Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and shall provide the Special Servicer
with any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Servicer
with any information reasonably required by the Servicer to perform its duties
under this Agreement.
(e) The Servicer shall maintain all records with respect to
defeased Mortgage Loans.
Section 3.27 Interest Reserve Account.
(a) On each Servicer Remittance Date occurring in February and on
any Servicer Remittance Date occurring in January which occurs in a year which
is not a leap year, the Servicer shall remit to the Trustee, in respect of each
Actual/360 Mortgage Loan, for deposit into the Interest Reserve Account, an
amount equal to one day's interest accrued at a per annum rate equal to 31/30 of
the related Mortgage Rate (less the Administrative Fee Rate) on the Stated
Principal Balance of such Mortgage Loan as of the last day of the then most
recently ended Interest Accrual Period, to the extent a full Monthly Payment or
P&I Advance is made in respect thereof (all amounts so deposited in any
consecutive January and February, "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the
Servicer shall instruct the Trustee to withdraw from the Interest Reserve
Account an amount equal to the Withheld Amounts from the preceding January and
February, if any, and deposit such amount into the Distribution Account.
Section 3.28 Limitations on and Authorizations of the
Servicer and Special Servicer with Respect to
Certain Mortgage Loans.
(a) Prior to taking any action with respect to a Mortgage Loan
secured by Mortgaged Properties located in a "one-action" state, the Servicer,
with respect to non-Specially Serviced Mortgage Loans, or Special Servicer, with
respect to Specially Serviced Mortgage Loans, as applicable, shall consult with
legal counsel, the fees and expenses of which shall be an expense of the Trust
Fund which for the Servicer or Special Servicer, as the case may be, will be
reimbursed as a Property Advance in accordance with this Agreement.
(b) With respect to any Specially Serviced Mortgage Loan which
permits the related Borrower, with the consent or grant of a waiver by
mortgagee, to incur additional indebtedness, to grant additional encumbrances
against the related Mortgaged Property or to amend or modify the related
Borrower's organizational documents or the organizational documents of the owner
of the Borrower, then the Special Servicer may either consent to such action, or
grant a waiver with respect thereto, only if the Special Servicer determines
that such consent or waiver is likely to result in an equal or greater recovery
on a present value basis (discounted at the related Mortgage Rate) than would
not consenting to such action, and the Special Servicer first obtains written
confirmation from each Rating Agency that such consent or grant of a waiver
would not, in and of itself, result in a downgrade, qualification or withdrawal
of any of the then-current ratings assigned to the Certificates. If a request is
made with respect to a non-Specially Serviced Mortgage Loan by a Borrower to the
Servicer for a consent to a request for the Borrower to incur additional
indebtedness, to grant additional encumbrances against the related Mortgaged
Property or to amend or modify the related Borrower's organizational documents
or the organizational documents of the owner of the Borrower, the Servicer shall
forward such request to the Special Servicer and the Special Servicer shall be
solely responsible for processing such request in the same manner as set forth
above for Specially Serviced Mortgage Loans. If the Servicer forwards to the
Special Servicer any such request by the Borrower with respect to a
non-Specially Serviced Mortgage Loan, such non-Specially Serviced Mortgage Loan
will not be considered a Specially Serviced Mortgage Loan solely due to any
action taken by the Special Servicer, and in connection with those
responsibilities, the Special Servicer will not be entitled to the Special
Servicing Fee solely for any action it takes under this Section 3.28(b).
(c) With respect to the Mortgage Loans that require the related
Borrower to pay Rating Agency monitoring or review fees, the Servicer or the
Special Servicer, in accordance with the Servicing Standard, shall enforce the
obligation of the related Borrowers to pay Rating Agency monitoring or review
fees and the Servicer shall remit such fees from the related Cash Collateral
Account for payment of such fees to the applicable Rating Agencies. The Servicer
shall receive bills from the Rating Agencies for monitoring, review and
surveillance of the Certificates and the Mortgage Loans on behalf of CCA and
shall promptly notify and send such bills to CCA, Attention: Brad Altberger. CCA
will notify each Rating Agency to bill CCA for such services and to send such
bills to the Servicer. The Servicer shall notify CCA of the portion of the bill
that it has paid from funds collected from such Borrowers and CCA will pay such
portion of the bill not paid from funds provided by the applicable Borrowers (as
described in this section (c)). Any Rating Agency monitoring or review fees
shall be paid by CCA on an ongoing basis, provided, that if such fees are not
paid by CCA within 30 days after notice from the Servicer, they will be paid
from amounts otherwise distributable to the Class Q-2 Certificates on the next
succeeding Distribution Date pursuant to the terms of this Agreement, and, to
the extent such amounts are insufficient to make payment on such fees, such fees
will be paid by the Servicer and shall constitute a Property Advance hereunder.
(d) With respect to all Mortgage Loans that provide that the
holder of the related Note may apply amounts received thereunder (including,
without limitation, Liquidation Proceeds) against principal, interest and any
other sums due in the order as the holder shall determine, the Servicer shall
apply amounts received in respect of any such Mortgage Loan (after using such
amounts to reimburse the Servicer, the Trustee or the Fiscal Agent, as
applicable, for outstanding Advances and interest thereon (to the extent not
offset by Default Interest) that were made as to such Mortgage Loan) (i) first
to interest (other than Excess Interest or Default Interest) due thereunder;
(ii) next to principal; (iii) next to Default Interest due thereunder; (iv) next
to Prepayment Premiums (excluding any Return of Premium Amounts) due thereunder;
(v) then to any Excess Interest due thereunder; (vi) then to reimburse any
litigation or other expenses incurred in collecting any such amounts received in
respect of such Mortgage Loan and that were not otherwise reimbursed as an
Advance, as described above; (vii) then to any Return of Premium Amounts due
thereunder and (viii) finally to any other sums due thereunder.
(e) With respect to the Mortgage Loans that are ARD Loans, neither
the Servicer (including the Servicer in its capacity as a Certificateholder, if
applicable) nor the Special Servicer shall take any enforcement action with
respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than requests for
collection, until the maturity date of the related Mortgage Loan; provided that
the foregoing shall not limit the ability of the Special Servicer to accelerate
(and to enforce such acceleration of) the amounts due under such Mortgage Loan
pursuant to Section 3.10(b) hereunder in the event of a failure by a Borrower to
pay any portion of the Monthly Payment when due.
(f) To the extent not inconsistent with the related Mortgage Loan,
the Special Servicer shall not consent to a change of franchise affiliation with
respect to a Mortgaged Property unless it obtains written confirmation from the
Rating Agencies that such consent would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates; provided, however, that if the Stated Principal Balance of
such Mortgage Loan as of the date immediately prior to the date of determination
plus the principal balance of any Mortgage Loans that are cross-collateralized,
cross-defaulted or made to related borrowers with the Mortgage Loan subject to
such modification is less than the lesser of 2% for Moody's at the aggregate
Stated Principal Balances of the Mortgage Loans and $15,000,000, and the
Mortgage Loan is not one of the ten largest Mortgage Loans in the Trust Fund,
such written confirmation shall not be required from Moody's. If such request is
made with respect to a non-Specially Serviced Mortgage Loan by a Borrower to the
Servicer, the Servicer shall forward such request to the Special Servicer and
the Special Servicer shall be solely responsible for processing such request. If
the Servicer forwards to the Special Servicer any such request by the Borrower
with respect to a non-Specially Serviced Mortgage Loan, such non-Specially
Serviced Mortgage Loan will not be considered a Specially Serviced Mortgage Loan
solely due to any action taken by the Special Servicer, and in connection with
those responsibilities, the Special Servicer will not be entitled to the Special
Servicing Fee solely for any action it takes pursuant to this Section 3.28(f).
(g) Upon a default in the payment of any amounts due under the
ACCOR Credit Lease Loan or any of the Circuit City Credit Lease Loans, the
Servicer shall provide written notice to the respective Borrower of such
default.
(h) With respect to the Mortgage Loans that are ARD Loans, the
Special Servicer shall be permitted, in its discretion, to waive all or any
accrued Excess Interest if, prior to the related maturity date, the related
Borrower has requested the right to prepay the Mortgage Loan in full together
with all payments required by the Mortgage Loan in connection with such
prepayment (except for a portion of accrued Excess Interest, provided that the
Special Servicer's determination to waive the right to such accrued Excess
Interest is reasonably likely to produce an equal or greater payment to
Certificateholders on a present value basis (discounted at the related Mortgage
Rate) than a refusal to waive the right to such Excess Interest. Any such waiver
shall not be effective until such prepayment is tendered. Additionally, with
respect to any ARD Loan, the Special Servicer is permitted, in accordance with
the Servicing Standard, to waive the portion of accrued Excess Interest, if any,
accrued at a rate in excess of 2% above the related Mortgage Rate if (i) a
default has occurred or is reasonably foreseeable and (ii) the Special Servicer
has determined that such a waiver is likely to produce an equal or greater
payment to Certificateholders on a present value basis. Neither the Servicer nor
the Special Servicer will have any liability to the Trust Fund, the
Certificateholders or any other Person so long as such determination is based on
such criteria. If such request is made with respect to a non-Specially Serviced
Mortgage Loan by a Borrower to the Servicer, the Servicer shall forward such
request to the Special Servicer and the Special Servicer shall be solely
responsible for processing such request. If the Servicer forwards to the Special
Servicer any such request by the Borrower with respect to a non-Specially
Serviced Mortgage Loan, such non-Specially Serviced Mortgage Loan will not be
considered a Specially Serviced Mortgage Loan solely due to any action taken by
the Special Servicer, and in connection with those responsibilities, the Special
Servicer will not be entitled to the Special Servicing Fee solely for any action
it takes pursuant to this Section 3.28(h).
(i) With respect to the Mortgage Loans that (i) require earthquake
insurance, or (ii) (A) at the date of origination were secured by Mortgaged
Properties on which the related Borrower maintained earthquake insurance and (B)
have provisions which enable the Servicer to continue to require the related
Borrower to maintain earthquake insurance, the Servicer shall require the
related Borrower to maintain such insurance in the amount, in the case of clause
(i), required by the Mortgage Loan and in the amount, in the case of clause
(ii), maintained at origination, in each case, to the extent such amounts are
available at commercially reasonable rates. Any determination by the Servicer
that such insurance is not available at commercially reasonable rates shall be
subject to confirmation by S&P that such determination not to purchase such
insurance will not result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates rated by S&P.
(j) The Servicer shall send written notice to each Borrower and
the related Manager and clearing bank that, if applicable, the Servicer and/or
the Trustee has been appointed as the "Designee" of the "Lender" under any
related Lock-Box Agreement.
(k) Each of the Servicer and the Special Servicer hereby agrees to
use efforts consistent with the Servicing Standard to abide by the terms and
conditions precedent to payment of claims under any Residual Value Policies and
to use efforts consistent with the Servicing Standard to take all such action as
may be required to comply with the terms and provisions of such policies in
order to maintain, in full force and effect, such Residual Value Policies. In
addition to complying with all conditions to coverage, the Special Servicer
hereby agrees that it will use efforts consistent with the Servicing Standard to
take any and all actions required under the Residual Value Policy in connection
with any claim, including (i) the timely presentation of a proof of loss
containing all required information, (ii) providing reasonable access to any
Mortgaged Property (but only to the extent such access is available pursuant to
the related Loan Documents, applicable law and the related Credit Lease), (iii)
the providing of any other notices required under the Residual Value Policy in a
timely fashion, and (iv) the timely submission of claims under the Residual
Value Policy to the extent the Special Servicer determines in accordance with
the Servicing Standard that any such claim would not be excluded under the terms
of the Residual Value Policy. Any and all amounts collected under a Residual
Value Policy shall be immediately deposited in the Collection Account, subject
to withdrawal as provided herein.
(l) For any Mortgage Loan as to which, under the terms of the
related Loan Documents, the mortgagee may, in its discretion, apply Insurance
Proceeds, condemnation awards or escrowed funds to the prepayment of such loan
prior to the expiration of the related Lock-out Period, the Servicer may only
make such a prepayment if the Servicer has first consulted with the Special
Servicer (if the Special Servicer is not the Servicer), provided, however, the
Servicer is not obligated to follow the Special Servicer's advice after
consultation.
(m) [Reserved]
(n) The Special Servicer (together with its employees, officers
and directors) shall not utilize the proprietary and nonpublic information that
it becomes aware of in servicing the Mortgage Loans to render advice in
connection with, solicit or otherwise participate in the refinancing of any
Mortgage Loans (whether at maturity or otherwise, unless the Mortgage Loan
Seller confirms in writing that it will not pursue the refinancing of such
Mortgaged Property). The Special Servicer shall not make its Mortgage Loan
servicing system available to the Special Servicer's Affiliates, engaged in the
commercial mortgage origination business for the purpose of refinancing a
Mortgage Loan prior to or at its due date.
(o) The Servicer and the Special Servicer shall administer the
Split Notes in accordance with the related Co-Lender Agreements.
(p) Without limiting the obligations of the Servicer hereunder
with respect to the enforcement of a Borrower's obligations under the related
Mortgage Loan Documents, the Servicer agrees that it shall use efforts
consistent with the Servicing Standard to enforce the provisions of the Mortgage
Loan Documents with respect to the collection of Prepayment Premiums.
(q) In the event that a Rating Agency shall charge a fee in
connection with providing confirmation under this Agreement that a proposed
action, including any enforcement of a due-on-encumbrances clause, will not
result in the downgrade, withdrawal, or qualification of any rating assigned to
any Class of Certificates, the Servicer or Special Servicer shall use efforts
consistent with the Servicing Standard to require the related Borrower to pay
such fee to the full extent permitted under the applicable Mortgage Loan
Documents. If the Borrower fails to pay such fee, then the Servicer and Special
Servicer shall not take such proposed action; provided that if the Servicer or
Special Servicer determines that (A) the Borrower is not obligated to pay such
expense or (B) failure to waive such due-on-encumbrance provision or take such
proposed action will result in the borrower defaulting under the related
Mortgage Loan and that, in the event of such default, failure to waive such
due-on-encumbrance provision or take such proposed action would result in a
lesser net recovery with respect to the related Mortgage Loan than would occur
if the Servicer or Special Servicer were to take such proposed action, the
Depositor shall pay such expenses; provided, that if the Depositor does not pay
such expenses, any expenses incurred by the Servicer or Special Servicer, as
applicable, shall be reimbursable as a Property Advance.
(r) [Reserved]
(s) To the extent not inconsistent with the related Mortgage Loan,
neither the Servicer nor the Special Servicer shall consent to a replacement of
the related Manager with respect to a Mortgaged Property unless it obtains
written confirmation from S&P and Moody's that such consent would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates; provided, however, that if the Stated
Principal Balance of such Mortgage Loan as of the day immediately prior to the
date of determination plus the principal balance of any Mortgage Loans that are
cross-collateralized, cross-defaulted or made to related borrowers with the
Mortgage Loan subject to such modification is less than the lesser of (x) (i) 2%
for Moody's and (ii) 5% for Fitch and S&P of the total aggregate Stated
Principal Balances of the Mortgage Loans and (y) $20,000,000 (or, with respect
to Moody's, $15,000,000), and the Mortgage Loan is not, at the time of
determination, one of the ten largest Mortgage Loans in the Trust Fund, such
written confirmation shall not be required from the applicable Rating Agency.
(t) To the extent not inconsistent with the related Mortgage Loan,
none of the Servicer or the Special Servicer shall consent to a transfer of
ownership interest in any Borrower or beneficial owner of any Borrower with
respect to a Mortgaged Property unless it obtains written confirmation from the
Rating Agencies that such consent would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates; provided, however, that if the Stated Principal Balance of
such Mortgage Loan as of the day immediately prior to the date of determination
plus the principal balance of any Mortgage Loans that are cross-collateralized,
cross-defaulted or made to affiliated Borrowers, as the case may be, with the
Mortgage Loan subject to such modification, is (x) for Fitch IBCA, not one of
the ten largest Mortgage Loans by outstanding principal balance, in the Trust
Fund (including in such calculation, any concentration of Mortgage Loans with
affiliated Borrowers), less than the lesser of (y) (i) 2% for Moody's and (ii)
5% for S&P of the total aggregate Stated Principal Balances of the Mortgage
Loans and (z) $20,000,000, and the Mortgage Loan is not one of the ten largest
Mortgage Loans in the Trust Fund, such written confirmation shall not be
required from the applicable Rating Agency.
(u) To the extent not inconsistent with the related Mortgage Loan,
the Servicer shall maintain all reserve accounts and cash collateral accounts as
Eligible Accounts and shall invest funds in such accounts in Permitted
Investments.
(v) To the extent not inconsistent with the related Mortgage Loan,
the Special Servicer shall, as a condition to granting consent to any material
alteration of a Mortgaged Property require any such Borrower to post cash
security in the amount of 125% of the projected cost of such alteration,
provided, however, that if the Stated Principal Balance of such Mortgage Loan as
of the day immediately prior to the date of determination or group of
cross-collateralized Mortgage Loans or group of Mortgage Loans to affiliated
Borrowers, as the case may be, is less than the lesser of (x) 2% of the total
aggregate Stated Principal Balances of the Mortgage Loans and (y) $20,000,000,
and is not, at the time of determination, one of the ten largest Mortgage Loans
in the Trust Fund, such deposit shall not be required. A material alteration
shall be an alteration where the projected cost of such alteration exceeds 5% of
the Stated Principal Balance of such Mortgage Loan.
(w) Pursuant to the provisions of any Mortgage Loan which provides
for the removal of a property manager, any calculation of Debt Service Coverage
Ratio by the Servicer or the Special Servicer shall use the Mortgage Rate, and
not the Revised Mortgage Rate, regardless of the rate in effect at the time of
such calculation.
(x) The Special Servicer shall not remove any Manager solely
because any Mortgage Loan has reached its Anticipated Repayment Date and there
remains an outstanding principal balance on such Mortgage Loan.
(y) The assignment to the Trust Fund of the ACCOR Credit Lease
notwithstanding, the right of the landlord under the ACCOR Credit Lease to
approve of the substitution of the related Mortgaged Properties under certain
specified circumstances may be exercised only by the Borrower and not by the
Trustee, the Servicer or the Special Servicer, to the extent consistent with the
applicable law and the related Loan Documents; provided, that the foregoing
shall not contravene any requirement under the Loan Documents to obtain any
Rating Agency confirmation.
(z) Any Mortgaged Property securing the ACCOR Credit Lease Loan
may not be sold to anyone actively engaged in the management or operation of 30
or more limited service budget motels for as long as the ACCOR Credit Lease is
in effect for such property.
(aa) With respect to any Credit Lease Loan, for as long as the
Residual Value Policy is in effect for this Loan, the Servicer or Special
Servicer shall not modify the terms of the Credit Lease Loan without the consent
of the related insurer and subject to the Servicing Standard.
Section 3.29 Modification, Waiver, Amendment and Consents.
(a) The Special Servicer may, consistent with the Servicing
Standard and the terms of this Agreement, agree to the modification, waiver or
amendment of any term of a Mortgage Loan which is in default or as to which
default is reasonably foreseeable after consultation with the Directing Holders,
provided, in the sole, good faith judgment of the Special Servicer, such
modification, waiver or amendment would increase the recovery to
Certificateholders on a net present value basis documented to the Trustee. The
Special Servicer may either foreclose or elect to grant up to three one-year
extensions on any such Mortgage Loan that is a Specially Serviced Mortgage Loan;
provided, however, that no such extension may extend the final Maturity Date
beyond (a) the date that is two years prior to the Final Rated Distribution Date
or (b) the date that is twenty years prior to the expiration of any related
ground lease.
To the extent that either the Servicer or Special Servicer waives
any Default Interest or late payment charge in respect of any Mortgage Loan,
whether pursuant to Section 3.03(a) or this Section 3.29, the respective amounts
of additional servicing compensation payable to the Servicer and the Special
Servicer out of such Default Interest or late payment charges shall be reduced
proportionately based upon the respective amounts that had been payable thereto
out of such Default Interest or late payment charges immediately prior to such
waiver.
(b) The Special Servicer may, subject to Section 3.29(f) and the
terms of this Agreement and consistent with the Servicing Standard, agree to any
modification, waiver or amendment (other than any modifications, waivers or
amendments to any non-Specially Serviced Mortgage Loan expressly the
responsibility of the Servicer, pursuant to Section 3.29(c)) of any term of any
Mortgage Loan that is not in default or for which a default is not reasonably
foreseeable with the consent of the Holders of Certificates representing greater
than 50% of the Voting Rights of the most subordinate Class or Classes of
Certificates then outstanding (provided, for the purpose of determining the most
subordinate Class of Certificates then outstanding, (i) the Class A-1, Class
A-2, Class A-3, Class CS-1 and Class X Certificates collectively and (ii) the
Class N, Class Q-1 and Class Q-2 Certificates collectively will, in each case,
be treated as one Class) representing a minimum of 1.0% of the aggregate initial
Certificate Balances of all Classes of Certificates (or if the Certificate
Balance of such Class or Classes has been notionally reduced based on Appraisal
Reduction Amounts to less than 25% of its initial Certificate Balance, the
holders of the next most subordinate Class) (the "Directing Holders"), subject,
however, to each of the following limitations, conditions and restrictions:
(i) [Reserved];
(ii) the Special Servicer shall not release or substitute material
collateral except as provided in clause (iii) below;
(iii) except as expressly provided in the related Mortgage or in
connection with a material adverse environmental condition at
the related Mortgaged Property or through defeasance or the
assumption of a Borrower's obligations with respect to a
Mortgage Loan in accordance with the terms thereof and the
provisions of Section 3.09 hereof, the Special Servicer may
not take any action that results in a release of the lien of
the related Mortgage on any material portion of such Mortgaged
Property without a corresponding principal prepayment.
(iv) the Special Servicer shall not permit any Borrower to add any
collateral unless (A) the Special Servicer has first
determined in accordance with the Servicing Standard, based
upon an environmental assessment prepared by an Independent
Person who regularly conducts environmental assessments, at
the expense of the Borrower, that such additional collateral
is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions
present with respect to such new collateral relating to the
use, management or disposal of any hazardous materials for
which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then
applicable environmental laws and/or regulations, (B) the
Special Servicer has received an Opinion of Counsel at the
expense of the Borrower, to the effect that the addition of
such collateral will not cause the Upper-Tier REMIC, the
Lower-Tier REMIC or the related Loan REMIC to fail to qualify
as a REMIC or cause a tax to be imposed on the Trust Fund
under the REMIC Provisions and (C) the Special Servicer shall
have received written confirmation from each Rating Agency
that such changes will not result in the qualification,
downgrade or withdrawal to the ratings then assigned to the
Certificates;
(v) other than with respect to an amendment, modification or
waiver pursuant to Section 3.29(a), the Special Servicer may
not waive or reduce a Lock-out Period or any Prepayment
Premiums; and
(vi) other than with respect to an amendment, modification or
waiver pursuant to Section 3.29(a), the Special Servicer may
not affect the amount or timing of any scheduled payments of
principal, interest or other amounts (including Prepayment
Premiums) payable under the Mortgage Loan;
provided that the Special Servicer shall not be required to oppose the
confirmation of a plan in any bankruptcy or similar proceeding involving a
Borrower if in its reasonable and good faith judgment such opposition would not
ultimately prevent the confirmation of such plan or one substantially similar.
(c) Subject to the limitations set forth in Section 3.29(b), for
any Mortgage Loan other than a Specially Serviced Mortgage Loan, the Servicer
shall be responsible for any request by a Borrower for the consent of the
mortgagee for a modification, waiver or amendment of any term with respect to:
(i) Approving routine leasing activity (including any
subordination, standstill and attornment agreements) with
respect to leases for less than the lesser of (a) 30,000
square feet and (b) 20% of the related Mortgaged Property;
(ii) Approving a change of the Manager at the request of the
related Borrower subject to Section 3.28(s);
(iii) Approving any waiver affecting the timing of receipt of
financial statements from any Borrower, provided that such
financial statements are delivered no less than quarterly and
within 60 days of the end of the calendar quarter;
(iv) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (1) provides for the payment of
operating expenses in an amount equal to more than 110% of the
amounts budgeted therefor for the prior year or (2) provides
for the payment of any material expenses to any affiliate of
the Borrower (other than the payment of a management fee to
any property manager if such management fee is no more than
the management fee in effect on the Cut-off Date); and
(v) Subject to other restrictions in this Agreement regarding
Principal Prepayments, waiving any provision of a Mortgage
Loan requiring a specified number of days' notice prior to a
Principal Prepayment.
(d) With respect to any modification, waiver or amendment
requested by a Borrower relating to a non-Specially Serviced Mortgaged Loan
which does not fall into one of the categories enumerated in sub-sections
3.29(c)(i)-(v) above, the Servicer shall forward such request to the Special
Servicer and the Special Servicer shall be solely responsible for processing
such request. If the Servicer forwards to the Special Servicer any such request
by the Borrower with respect to a non-Specially Serviced Mortgage Loan, such
non-Specially Serviced Mortgage Loan will not be considered a Specially Serviced
Mortgage Loan solely due to any action taken by the Special Servicer, and in
connection with those responsibilities, the Special Servicer will not be
entitled to a Special Servicing Fee solely for any action it takes under this
Section 3.29(d). All modifications, waivers, amendments and other actions
entered into or taken in respect of the Mortgage Loans pursuant to this Section
3.29 shall be in writing. The Special Servicer shall notify the Servicer and the
Trustee, in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Mortgage Loan pursuant to this Section
3.29, prior to the effective date thereof and the date as of which the related
modification, waiver or amendment is to take effect, and shall deliver to the
Trustee or the related Custodian for deposit in the related Mortgage File (with
a copy to the Servicer) an original counterpart of the agreement relating to
such modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. Following the
execution of any modification, waiver or amendment agreed to by the Special
Servicer pursuant to clauses (a) and (b) above, the Special Servicer shall
deliver to the Trustee (with a copy to the Servicer) an Officer's Certificate
setting forth in reasonable detail the basis of the determination made by it
pursuant to clause (a) and (b) above.
(e) Any payment of interest which is deferred as described herein
shall not, for purposes, including, without limitation, of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so permit or that such interest may actually be capitalized.
(f) The Servicer or the Special Servicer, as applicable, shall be
permitted to modify, waive or amend any term of a Mortgage Loan that is not in
default or as to which default is not reasonably foreseeable pursuant to Section
3.29(b) or (c), only if such modification, waiver or amendment (a) (i) would not
be "significant" as such term is defined in Treasury Regulations Section
1.860G-2(b), as determined by the Servicer or Special Servicer (and the Servicer
or Special Servicer may rely on an Opinion of Counsel (which shall be an expense
of the Person requesting such modification, waiver or amendment) in making such
determination), or (ii) occurs within three months of the Startup Day, (b) would
be in accordance with the Servicing Standard and (c) would not adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto. The consent thereto of the Directing Holders or written confirmation
from each Rating Agency that such modification, waiver or amendment will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates shall not be required, but either shall be
conclusive evidence that such modification, waiver or amendment would not
adversely affect in any material respect the interest of any Certificateholder
not consenting thereto.
Section 3.30 [Reserved]
Section 3.31 Servicing of Mortgage Loans Subject to
Co-Lender Agreements.
(a) With respect to each of the Split Notes, the Servicer and
Special Servicer will act as the lead servicer and special servicer,
respectively, with respect to the servicing of the related Split Loans and will
service such Split Loans pursuant to the provisions of this Agreement and the
Servicing Standard with a view toward the maximization of recovery on both the
Split Note included in the Trust Fund and related Other Note or Other Notes. All
amounts collected by the Servicer (or the Trustee, the Fiscal Agent or Special
Servicer, as applicable), with respect to any Split Note shall be allocated in
the manner prescribed in the related Co-Lender Agreement.
(b) With respect to each Split Note, the Servicer (or the Trustee,
Fiscal Agent or Special Servicer, as applicable), will hold the Mortgaged
Property, any insurance thereon (including, but not limited to, property,
casualty and residual value insurance) and any proceeds derived from the Split
Loan or the Mortgaged Property for the benefit of the holders of the Split Note
and the Other Note, and will allocate and pay any such proceeds therefrom in the
manner prescribed in the related Co-Lender Agreement.
(c) Notwithstanding any of the provisions of Section 4.06 to the
contrary, with respect to any P&I Advance that is made pursuant to Section 4.06
with respect to a Split Note that is in the Trust Fund, such P&I Advance shall
not exceed the amount due with respect to such Split Note.
(d) Notwithstanding any of the provisions of Section 3.24 to the
contrary, with respect to any Property Advance that is made with respect to a
Mortgaged Property securing a Split Note, the Servicer (or the Trustee or Fiscal
Agent, to the extent required by this Agreement), shall advance the entire
amount of such Property Advance, subject to Section 3.24(c). To the extent that
a Property Advance and related Advance Interest Amounts have been determined to
be Nonrecoverable Advances and have not been reimbursed from recoveries in
respect of the related Mortgage Loan, the Servicer (or the Trustee or Fiscal
Agent, as applicable), shall enforce its rights under the related Co-Lender
Agreement against the Other Servicer to collect a pro rata share (based on the
outstanding principal amount of each note) of such Nonrecoverable Advance. The
Servicer shall use its reasonable best efforts to recover any out-of pocket
expenses incurred in pursuing such recovery from the Other Servicer. To the
extent that the pro rata portion of any Advance allocable to the Other Note and
advanced by the Lead Lender (and any costs of the Servicer to recover such
amounts) is not reimbursed by the related Other Trust Fund within a period of 90
days, such amount shall be deemed to be a Nonrecoverable Advance and shall be
reimbursed pursuant to Section 3.06(ii).
(e) Copies of Certain Materials to Servicers of Other Notes. The
Servicer shall deliver or cause to be delivered to the Other Servicer, at the
cost of the Other Servicer, the following materials, in writing and on a
computer readable medium reasonably acceptable to the Other Servicer and the
Servicer (and such reports may include any reasonable disclaimers with respect
to information provided by third parties or with respect to assumptions required
to be made in the preparation of such reports as the Servicer deems
appropriate):
(i) Copies of the following reports given to the Trustee: (x) the
Operating Statement Analysis (with operating statements and
rent rolls where provided by the Borrower) and NOI Adjustment
Worksheet under Section 3.13(d); and (y) a notice to the
Trustee under Section 3.19(b) with respect to the related
Split Note;
(ii) The information contained in the Delinquent Loan Status Report
with respect to the Split Notes;
(iii) Copies of the annual compliance statement delivered pursuant
to Section 3.14 and the Accountant's Statement delivered
pursuant to Section 3.15;
(iv) If requested, copies of all property inspection reports for
the Split Notes conducted pursuant to Section 3.19(a); and
(v) Copies of the Watch List whenever a Split Note appears
thereon.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, after the deemed distributions
pursuant to Section 4.01(i), the Trustee shall pay to itself from the
Distribution Account the Trustee Fee, and the remaining amounts held in the
Distribution Account shall be withdrawn (to the extent of Available Funds or, in
the case of clause (ii), Prepayment Premiums) and distributed in respect of the
Lower-Tier Regular Interests as follows:
(i) The amounts and timing of principal and interest payments and
Prepayment Interest Shortfall allocations on each Lower-Tier
Regular Interest will be identical to such amounts and timing
on the corresponding Class of Related Certificates for such
Distribution Date, or in the case of the Class A-1-LA and the
Class A-1-LB Interests, the aggregate of such amounts and
timing with respect to the Class A-1 Certificates, except
that, (A) solely for this purpose, all calculations with
respect to the Related Lower-Tier Regular Interests shall be
made as though (x) the Class A-1, Class A-2, Class A-3, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class Q-1 and Class Q-2
Pass-Through Rates were equal to the Weighted Average Net
Mortgage Pass-Through Rate, (y) each of the Class CS-1 and
Class X Notional Balance were zero at all times, and (z) the
Class Interest Distribution Amount with respect to the Class
CS-1 Certificates shall be deemed to be distributed in respect
of the Class A-1-LA Interest and the Class Interest
Distribution Amount in respect of the Class X Certificates
shall be deemed to be distributed in respect of each other
Class of Lower-Tier Regular Interests in accordance with the
portion of the Class Interest Distribution Amount with respect
to the Class X Certificates represented by the Certificate
Balance thereof (or, in the case of the Class A-1-LB Interest,
the portion of the Certificate Balance of the Class A-1
Certificates equal to the Class A-1 Component 2 Balance) times
the excess of the Weighted Average Net Mortgage Pass-Through
Rate over the Pass-Through Rate of the Related Certificates
for the related Interest Accrual Period, and (B) as between
the Class A-1-LA Interest and the Class A-1-LB Interest,
principal distributed on the Class A-1 Certificates shall be
allocated in the same manner as in determining the Class A-1
Component 1 Balance and the Class A-1 Component 2 Balance.
(ii) Prepayment Premiums shall be distributed in respect of the
Lower-Tier Regular Interests in accordance with Section
4.01(c)(ii).
(iii) Realized Losses shall be allocated to, and shall reduce the
Certificate Balances of, each Class of Lower-Tier Regular
Interests without distribution on any Distribution Date, to
the extent that the Certificate Balance of such Class exceeds
the Certificate Balance of the corresponding Class of Related
Certificates because of Realized Losses allocated to such
Class of Related Certificates; provided, that Realized Losses
on the Class A-1 Certificates correspond to the Class A-1-LA
and Class A-1-LB Interests in the aggregate, and are allocated
in the same manner as in determining the Class A-1 Component 1
Balance and the Class A-1 Component 2 Balance. Amounts
recovered in respect of any amounts previously written off as
Realized Losses will be distributed to each Class of Related
Lower-Tier Regular Interests, to the extent that amounts
recovered in respect of any amounts previously written off as
Realized Losses are distributed to the corresponding Class of
Related Certificates, allocated in the case of the Class
A-1-LA and the Class A-1-LB Interests as such Realized Losses
were previously allocated thereto.
(iv) Any amounts remaining in the Distribution Account after the
distribution set forth above in this Section 4.01(a)(i)-(iii)
shall be distributed to the Class LR Certificates.
(v) In the case of the Class A-1-LA and Class A-1-LB Interests,
the aggregate principal balances of such Lower-Tier Regular
Interests shall correspond to the Certificate Balance of the
Class A-1 Certificates; and interest on the Class A-1-LA
Interest and Class A-1-LB Interest shall correspond to
interest on the Class CS-1 and Class X Certificates,
respectively.
(b) On each Distribution Date prior to the Crossover Date, amounts
distributed on the Lower-Tier Regular Interests pursuant to Section 4.01(a)
shall be deposited in the Upper-Tier Distribution Account, and, subject to the
penultimate paragraph of this Section 4.01(b), Holders of each Class of
Certificates (other than the Class LR Certificates) shall receive distributions
from amounts on deposit in the Upper-Tier Distribution Account in respect of
interest and principal in the amounts and in the order of priority set forth
below:
(i) First, pro rata, in respect of interest, to the Class A-1,
Class A-2, Class A-3, Class CS-1 and Class X Certificates, up
to an amount equal to the aggregate Class Interest
Distribution Amounts of such Classes for such Distribution
Date;
(ii) Second, pro rata, to the Class A-1, Class A-2, Class A-3 ,
Class CS-1 and Class X Certificates, in respect of interest,
up to an amount equal to the aggregate Class Interest
Shortfalls of such Classes for such Distribution Date;
(iii) Third, to the Class A-1 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount until the Certificate Balance thereof is
reduced to zero;
(iv) Fourth, to the Class A-2 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(v) Fifth, to the Class A-3 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less the portion of the Principal
Distribution Amount distributed to all prior clauses, until
the Certificate Balance thereof is reduced to zero;
(vi) Sixth, pro rata, to the Class A-1, Class A-2 and Class A-3
Certificates, for the unreimbursed amounts of Realized Losses,
if any, an amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class for such
Distribution Date;
(vii) Seventh, to the Class B Certificates, in respect of interest,
up to an amount equal to the Class Interest Distribution
Amount of such Class for such Distribution Date;
(viii)Eighth, to the Class B Certificates, in respect of interest,
up to an amount equal to the Class Interest Shortfall of such
Class for such Distribution Date;
(ix) Ninth, to the Class B Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(x) Tenth, to the Class B Certificates, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xi) Eleventh, to the Class C Certificates in respect of interest,
up to an amount equal to the Class Interest Distribution
Amount of such Class for such Distribution Date;
(xii) Twelfth, to the Class C Certificates in respect of interest,
up to an amount equal to the Class Interest Shortfall of such
Class for such Distribution Date;
(xiii)Thirteenth, to the Class C Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(xiv) Fourteenth, to the Class C Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xv) Fifteenth, to the Class D Certificates in respect of interest,
up to an amount equal to the Class Interest Distribution
Amount of such Class for such Distribution Date;
(xvi) Sixteenth, to the Class D Certificates in respect of interest,
up to an amount equal to the Class Interest Shortfall of such
Class for such Distribution Date;
(xvii)Seventeenth, to the Class D Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(xviii) Eighteenth, to the Class D Certificates, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xix) Nineteenth, to the Class E Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such Distribution Date;
(xx) Twentieth, to the Class E Certificates in respect of interest,
up to an amount equal to the Class Interest Shortfall of such
Class for such Distribution Date;
(xxi) Twenty-first, to the Class E Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(xxii)Twenty-second, to the Class E Certificates, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxiii) Twenty-third, to the Class F Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such Distribution Date;
(xxiv)Twenty-fourth, to the Class F Certificates in respect of
interest, up to an amount equal to the Class Interest
Shortfall of such Class for such Distribution Date;
(xxv) Twenty-fifth, to the Class F Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(xxvi)Twenty-sixth, to the Class F Certificates, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxvii) Twenty-seventh, to the Class G Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such Distribution Date;
(xxviii)Twenty-eight, to the Class G Certificates in respect of
interest, up to an amount equal to the Class Interest
Shortfall of such Class for such Distribution Date;
(xxix)Twenty-ninth, to the Class G Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(xxx) Thirtieth, to the Class G Certificates, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxxi)Thirty-first, to the Class H Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such Distribution Date;
(xxxii) Thirty-second, to the Class H Certificates in respect of
interest, up to an amount equal to the Class Interest
Shortfall for such Class for such Distribution Date;
(xxxiii)Thirty-third, to the Class H Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, less the portion of the
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xxxiv) Thirty-fourth, to the Class H Certificates, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxxv)Thirty-fifth, to the Class J Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such Distribution Date;
(xxxvi) Thirty-sixth, to the Class J Certificates in respect of
interest, up to an amount equal to the Class Interest
Shortfall of such Class for such Distribution Date;
(xxxvii)Thirty-seventh, to the Class J Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, less the portion of the
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xxxviii) Thirty-eighth, to the Class J Certificates, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxxix) Thirty-ninth, to the Class K Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such Distribution Date;
(xl) Fortieth, to the Class K Certificates in respect of interest,
up to an amount equal to the Class Interest Shortfall of such
Class for such Distribution Date;
(xli) Forty-first, to the Class K Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(xlii)Forty-second, to the Class K Certificates, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xliii) Forty-third, to the Class L Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class for such Distribution Date;
(xliv)Forty-fourth, to the Class L Certificates in respect of
interest, up to an amount equal to the Class Interest
Shortfall of such Class for such Distribution Date;
(xlv) Forty-fifth, to the Class L Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of such Class is reduced to
zero;
(xlvi) Forty-sixth, to the Class L Certificates, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xlvii) Forty-seventh, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate Class
Interest Distribution Amounts of such Classes for such
Distribution Date;
(xlviii)Forty-eighth, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate Class
Interest Shortfall of such Classes for such Distribution Date;
(xlix)Forty-ninth, to the Class M Certificates in reduction of the
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of each such Class is reduced to
zero;
(l). Fiftieth, to the Class M Certificates for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(li) Fifty-first, to the Class N Certificates in respect of
interest, up to an amount equal to the aggregate Class
Interest Distribution Amounts of such Classes for such
Distribution Date;
(lii) Fifty-second, to the Class N Certificates in respect of
interest, up to an amount equal to the aggregate Class
Interest Shortfall of such Classes for such Distribution Date;
(liii)Fifty-third, to the Class N Certificates in reduction of the
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of each such Class is reduced to
zero;
(liv) Fifty-fourth, to the Class N Certificates for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(lv) Fifty-fifth, pro rata, to the Class Q-1 and Class Q-2
Certificates in respect of interest, up to an amount equal to
the aggregate Class Interest Distribution Amounts of such
Classes for such Distribution Date (and, with respect to the
Class Q-2 Certificates, subject to section 3.28(c) of this
Agreement);
(lvi) Fifty-sixth, pro rata, to the Class Q-1 and Class Q-2
Certificates in respect of interest, up to an amount equal to
the aggregate Class Interest;
(lvii)Fifty-seventh, pro rata, to the Class Q-1 and Class Q-2
Certificates in respect of interest, up to an amount equal to
the aggregate Class Interest Shortfall of such Classes for
such Distribution Date (and, with respect to the Class Q-2
Certificates, subject to section 3.28(c) of this Agreement);
(lviii) Fifty-eighth, pro rata based on Certificate Balance, to the
Class Q-1 and Class Q-2 Certificates in reduction of the
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount, less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Balance of each such Class is reduced to
zero (and, with respect to the Class Q-2 Certificates, subject
to Section 3.28(c) of this Agreement);
(lix) Fifty-ninth, pro rata, to the Class Q-1 and Class Q-2
Certificates, for the unreimbursed amounts of Realized Losses,
if any, an amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Classes (and,
with respect to the Class Q-2 Certificates, subject to Section
3.28(c) of this Agreement);
(lx) Sixtieth, to the Class R Certificates.
On each Distribution Date occurring on or after the Crossover Date,
the Principal Distribution Amount will be distributed to the Class A-1, Class
A-2, and Class A-3 Certificates, pro rata, based on their respective Certificate
Balances, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero and other amounts
distributable to the Class A-1, Class A-2, Class A-3, Class CS-1 and Class X
Certificates shall be distributed pursuant to the priority set forth in this
Section 4.01(b).
All references to pro rata in the preceding clauses with respect to
interest and Class Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) (xi) On each Distribution Date, following the distribution from
the Distribution Account in respect of the Lower-Tier Regular Interests pursuant
to Section 4.01(c)(ii), the Paying Agent shall make distributions of any
Prepayment Premiums (subject to any portion payable to the Special Servicer as a
portion of the Work Out Fee for any Mortgage Loan) with respect to any Principal
Prepayments received in the related Collection Period from amounts deposited in
the Upper-Tier Distribution Account pursuant to Section 3.05(c) in the following
amounts (as additional payments and not as payments of interest and principal
due thereunder) and order of priority, with respect to the Certificates of each
Class in each case to the extent remaining amounts of Prepayment Premiums are
available therefor:
(I) to the extent that such Prepayment Premium is paid with
respect to a Mortgage Loan that is not a Premium Loan,
then the amount of such Prepayment Premium will be
distributed on the related Distribution Date to the
Holders of the Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D, Class E and Class F Certificates in an
amount up to, in the case of each such Class, the
product of (a) such Prepayment Premium, (b) the Discount
Rate Fraction for such Class and (c) the Principal
Allocation Fraction of such Class. The "Discount Rate
Fraction" for any such Class of Certificates is equal to
a fraction (not greater than 1.0 or less than zero) the
numerator of which is equal to the excess, if any, of
(x) the Pass-Through Rate for such Class of Certificates
over (y) the applicable Prepayment Premium Discount Rate
(as defined below), and the denominator of which is
equal to the excess, if any, of (x) the Net Mortgage
Pass-Through Rate of such Mortgage Loan over (y) the
applicable Prepayment Premium Discount Rate. With
respect to any Distribution Date and each such Class of
Certificates, the "Principal Allocation Fraction" is a
fraction, the numerator of which is the portion, if any,
of the Principal Distribution Amount allocated to such
Class of Certificates for such Distribution Date, and
the denominator of which is the entire Principal
Distribution Amount for such Distribution Date. The
portion of the Prepayment Premium remaining, if any,
after the payment of the amount calculated as described
above will be distributed to the holders of the Class
CS-1 and Class X Certificates, pro rata, based upon the
Class A-1 Component 1 Balance and the Class A-1
Component 2 Balance, respectively. The "Prepayment
Premium Discount Rate" means the yield (compounded
monthly) on the U.S. Treasury issue (primary issue) with
a maturity date closest to the Assumed Final
Distribution Date of the subject Class. In the event
that there are two such U.S. Treasury issues (a) with
the same coupon, the issue with the lower yield will be
utilized, and (b) with maturity dates equally close to
the Assumed Final Distribution Date, the issue with the
earliest maturity date will be utilized;
(II) to the extent that such Prepayment Premium is paid with
respect to a Premium Loan that has a Base Interest Rate,
net of the Administrative Fee Rate (the "Net Base Rate")
equal to or lower than the Pass-Through Rate in effect
on such Distribution Date for the Class of Public
Certificates that received distributions in reduction of
its Certificate Balance on such Distribution Date (the
"Reference Pass-Through Rate"), then the amount of such
Prepayment Premium will be distributed to the Class CS-1
and Class X Certificates, pro rata, based upon the Class
A-1 Component 1 Balance and the Class A-1 Component 2
Balance, respectively; provided that if more than one
Class of Public Certificates receives distributions in
reduction of Certificate Balance on such Distribution
Date, the Reference Pass-Through Rate will be equal to
the weighted average of the Pass-Through Rates for such
Classes for such Distribution Date (weighted on the
basis of the respective Certificate Balances thereof
outstanding immediately prior to such Distribution
Date); and
(III) to the extent that such Prepayment Premium is paid with
respect to a Premium Loan that has a Net Base Rate
higher than the Reference Pass-Through Rate for such
Distribution Date, then the amount of such Prepayment
Premium will be allocated between the Class CS-1 and
Class X Certificates (pro rata, based upon the Class A-1
Component 1 Balance and the Class A-1 Component 2
Balance, respectively) and the Class or Classes of
Public Certificates that received distributions in
reduction of Certificate Balance on such Distribution
Date in the following proportions: to the Class CS-1 and
Class X Certificates a fraction of such Prepayment
Premium the numerator of which is the excess of the Net
Mortgage Pass-Through Rate of the related Mortgage Loan
over the Net Base Rate and the denominator of which is
the excess of the Net Mortgage Pass-Through Rate of the
related Mortgage Loan over the Reference Pass-Through
Rate; and the balance to the Class or Classes of Public
Certificates receiving distributions in reduction of
Certificate Balance on such Distribution Date, pro rata
in accordance with the amounts by which their
Certificate Balances were so reduced.
In all clauses above, Prepayment Premiums will only be distributed
to any particular Class on a Distribution Date (i) if the respective Certificate
Balance, Notional Balance of such Class is greater than zero on the last
Business Day of the Interest Accrual Period ending immediately prior to such
Distribution Date and (ii) if the amount computed pursuant to the relevant
clause above is greater than zero for such Class. Any Prepayment Premiums
remaining following the distributions described in the preceding clauses (I)
through (III) shall be distributed to holders of the Class Q-2 Certificates
regardless of whether the Certificate Balance thereof has been reduced to zero
(subject to Section 3.28(c) of this Agreement).
Notwithstanding the foregoing, Prepayment Premiums shall be
distributed on any Distribution Date only to the extent they (i) are received in
respect of the Mortgage Loans in the related Collection Period and (ii) are not
otherwise payable to the Special Servicer as a part of the Work Out Fee or the
Liquidation Fee.
(i) On each Distribution Date, prior to the distributions to the
Certificates from the Upper-Tier Distribution Account pursuant
to Section 4.01(c)(i), the Lower-Tier Regular Interests shall
receive distributions in respect of Prepayment Premiums in
proportion to their Certificate Balances.
(d) The Certificate Balance of each Class of Regular Certificates
(other than the Class CS-1 and Class X Certificates) will be reduced without
distribution on any Distribution Date as a write-off to the extent of any
Realized Losses allocated to such Class with respect to such date. The Realized
Loss for any Distribution Date will be allocated to Classes of Regular
Certificates (other than the Class CS-1 and Class X Certificates) in the
following order, in each case until the Certificate Balance of such Class is
reduced to zero: first, to the Class Q-1 and Class Q-2 Certificates, pro rata,
based on their respective Certificate Balances; second, to the Class N
Certificates; third, to the Class M Certificates; fourth, to the Class L
Certificates; fifth, to the Class K Certificates; sixth, to the Class J
Certificates; seventh, to the Class H Certificates; eighth, to the Class G
Certificates; ninth, to the Class F Certificates; tenth, to the Class E
Certificates; eleventh, to the Class D Certificates; twelfth, to the Class C
Certificates; thirteenth, to the Class B Certificates; and fourteenth, to the
Class A-1, Class A-2 and Class A-3 Certificates, pro rata, based on their
respective Certificate Balances.
Realized Losses and such other amounts described above which are
applied to each Class of Regular Certificates (other than the Class CS-1 and
Class X Certificates) will be allocated to reduce the Certificate Balance of the
Class of Related Lower-Tier Regular Interests as provided in Section
4.01(a)(iii) and, with respect to the Mortgage Loan that incurred such Realized
Loss, the related Loan REMIC Regular Interest.
(e) All amounts distributable to a Class of Certificates pursuant
to this Section 4.01 on each Distribution Date shall be allocated pro rata among
the outstanding Certificates in each such Class based on their respective
Percentage Interests. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date by check mailed by first Class mail to the address set forth
therefor in the Certificate Register or, provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity located
in the United States and having appropriate facilities therefor. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee.
(f) Except as otherwise provided in Section 9.01 with respect to
an Anticipated Termination Date, the Trustee shall, no later than the fifteenth
day of the month in the month preceding the month in which the final
distribution with respect to any Class of Certificates is expected to be made,
mail to each Holder of such Class of Certificates, on such date a notice to the
effect that:
(A) the Trustee reasonably expects based upon information
previously provided to it that the final distribution
with respect to such Class of Certificates will be made
on such Distribution Date, but only upon presentation
and surrender of such Certificates at the office of the
Trustee therein specified, and
(B) if such final distribution is made on such Distribution
Date, no interest shall accrue on such Certificates from
and after such Distribution Date;
provided, however, that the Residual Interests shall remain outstanding until
there is no other Class of Regular Certificates, Lower-Tier Regular Interests or
related Loan REMIC Regular Interests outstanding and the Class Q-2 Certificates
shall be deemed to be outstanding so long as there are any Mortgage Loans
outstanding that provide for payments of Prepayment Premiums in connection with
voluntary or involuntary prepayments.
Any funds not distributed to any Holder or Holders of such Classes
of Certificates 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 in trust for the benefit of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.01(f) 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 Holders to surrender their Certificates
for cancellation to receive the final distribution with respect thereto. If
within one year after the second notice not all of such Certificates shall have
been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering Holders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Holders shall be paid out of such
funds. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Holder on any amount held in trust hereunder or by the Trustee
as a result of such Holder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(f). Any such amounts
transferred to the Trustee may be invested in Permitted Investments and all
income and gain realized from investment of such funds shall be for the benefit
of the Trustee.
(g) [Reserved]
(h) The Certificate Balances of the Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class Q-1 and Class Q-2 Certificates shall be notionally reduced on any
Distribution Date to the extent of any Appraisal Reduction Amounts with respect
to such Distribution Date. Any such reductions shall be applied notionally,
first, to the Class Q-1 and Class Q-2 Certificates, second, to the Class N
Certificates, third, to the Class M Certificates, fourth, to the Class L
Certificates, fifth, to the Class K Certificates, sixth, to the Class J
Certificates, seventh, to the Class H Certificates, eighth, to the Class G
Certificates, ninth, to the Class F Certificates, tenth, to the Class E
Certificates, eleventh, to the Class D Certificates, twelfth, to the Class C
Certificates, and finally, to the Class B Certificates (provided in each case
that no Certificate Balance in respect of any such Class shall be notionally
reduced below zero). Once a Final Recovery Determination has been made with
respect to any Mortgage Loan, any applicable Appraisal Reduction Amount applied
to the Certificates shall be reversed in its entirety.
(i) All payments made on the Mortgage Loans (or subsequently
acquired REO Property) which are assets of the Loan REMICs shall be deemed to be
paid to the Lower-Tier REMIC before payments are made to the holders of the
Lower-Tier Regular Interests pursuant to Section 4.01(a), and shall be treated
as principal, interest or Prepayment Premiums, as the case may be, based on
these characterizations with respect to the related Mortgage Loan (or REO
Property), except where expressly noted and, in addition, any payment of
principal on, or Realized Loss with respect to, a Mortgage Loan in a Loan REMIC
shall reduce the principal balance of the related Loan REMIC Regular Interest.
Any payments on or with respect to the Mortgage Loans which are assets of the
Loan REMICs in excess of the principal, interest and Prepayment Premiums
distributable on the related Loan REMIC Regular Interest shall be distributable
to the Class LR Certificate in respect of amounts distributed on the related
Loan REMIC Residual Interest.
(j) On each Distribution Date, the Trustee shall distribute (i) to
the Holders of the Class A-2, Class A-3, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
Q-1 and Class Q-2 Certificates, pro rata, in accordance with their initial
Certificate Balances, all amounts on deposit in the Excess Interest Distribution
Account (and, with respect to the Class Q-2 Certificates, subject to Section
3.28(c) of this Agreement); and (ii) to the Holders of the Class X Certificates,
all amounts on deposit in the Repurchase Price Return of Premium Distribution
Account.
Section 4.02 Statements to Certificateholders; Reports by
Trustee; Other Information Available to the
Holders and Others.
(a) On each Distribution Date, based upon reports prepared by the
Servicer and Special Servicer relating to such Distribution Date, and only to
the extent such information is provided to the Trustee by the Servicer or
Special Servicer (except that the information in (xvi) will be based on notice
from the Rating Agencies), the Trustee shall prepare and forward by first class
mail to each Certificateholder, each prospective investor in a Certificate (upon
request), with copies to the Depositor (and its attorneys, Cadwalader,
Wickersham & Taft, Attn.: Anna H. Glick), the Servicer, the Special Servicer,
each Underwriter, each Rating Agency (and, in the case of the Split Notes, the
Other Servicer, with respect to information related to such Split Note) a
written report (a "Distribution Date Statement") setting forth the following
information:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates
applied to reduce the respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates
allocable to (A) the Interest Accrual Amount and/or (B)
Prepayment Premiums;
(iii) the aggregate Certificate Balance or aggregate Notional
Balance, as the case may be, of each Class of Certificates,
before and after giving effect to the distributions and
allocations of Realized Losses made on such Distribution Date,
separately identifying any reduction in the aggregate
Certificate Balance (or, if applicable, the aggregate Notional
Balance) of each such Class due to Realized Losses and/or
additional Trust Fund expenses;
(iv) the Pass-Through Rate, if any, for each Class of Certificates
applicable to such Distribution Date;
(v) the number of outstanding Mortgage Loans and the aggregate
unpaid principal balance of the Mortgage Loans at the close of
business on the related Due Date;
(vi) the number and aggregate unpaid principal balance of Mortgage
Loans without giving effect to grace periods (A) delinquent
30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 days
or more, (D) that are Specially Serviced Mortgage Loans that
are not delinquent, or (E) as to which foreclosure proceedings
have been commenced;
(vii) with respect to any REO Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the preceding
calendar month, the Stated Principal Balance and the unpaid
principal balance of such Mortgage Loan as of the date it
became an REO Mortgage Loan;
(viii)as to any Mortgage Loan repurchased by the Mortgage Loan
Seller or otherwise liquidated or disposed of during the
related Collection Period, (A) the Loan Number of the related
Mortgage Loan, (B) the amount of proceeds of any repurchase of
a Mortgage Loan, Liquidation Proceeds and/or other amounts, if
any, received thereon during the related Collection Period and
the portion thereof included in the Available Funds for such
Distribution Date, and (C) the date of Final Recovery
Determination;
(ix) with respect to any REO Property included in the Trust Fund at
the close of business on the related Due Date (A) the Loan
Number of the related Mortgage Loan, (B) the value of such REO
Property based on the most recent appraisal or valuation, and
(C) the aggregate amount of Net Income and other revenues
collected by the Special Servicer with respect to such REO
Property during the related Collection Period and the portion
thereof included in the Available Funds for such Distribution
Date;
(x) with respect to any REO Property sold or otherwise disposed of
during the related Collection Period and for which a Final
Recovery Determination has been made, (A) the Loan Number of
the related Mortgage Loan, (B) the amount of sale proceeds and
other amounts, if any, received in respect of such REO
Property during the related Collection Period and the portion
thereof included in the Available Funds for such Distribution
Date and (C) the date of the Final Recovery Determination;
(xi) the aggregate amount of Principal Prepayments (other than
Liquidation Proceeds and Insurance Proceeds) made during the
related Collection Period and any Prepayment Interest
Shortfall in excess of Servicer Prepayment Interest Shortfall
for such Distribution Date;
(xii) the amount of Property Advances and P&I Advances outstanding
at the close of business on the related Due Date (net of
reimbursed Advances) which have been made by the Servicer, the
Trustee or the Fiscal Agent;
(xiii)the aggregate amount of Servicing Compensation, Special
Servicing Compensation and any other compensation retained by
or paid to the Servicer and the Special Servicer during the
related Collection Period;
(xiv) the amount of any Appraisal Reduction Amounts allocated during
the related Collection Period on a loan-by-loan basis; the
total Appraisal Reduction Amounts allocated during the related
Collection Period; and the total Appraisal Reduction Amounts
as of such Distribution Date on a loan-by-loan basis;
(xv) the amount of losses incurred with respect to the Mortgage
Loans, Trust Fund expenses, Class Interest Shortfalls,
Prepayment Interest Shortfalls, if any, during the related
Collection Period and in the aggregate for all prior
Collection Periods (except to the extent reimbursed or paid);
and
(xvi) the original and then-current ratings of the Certificates,
based upon all notifications received by the Trustee from the
Rating Agencies with respect to any change, withdrawal,
downgrade or qualification of the ratings of the Certificates.
In the case of information furnished pursuant to subclauses (i),
(ii) and (iii) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall forward to each Holder
of a Class R or Class LR Certificate a copy of the reports forwarded to the
other Certificateholders on such Distribution Date and a statement setting forth
the amounts, if any, actually distributed with respect to the Class R or Class
LR Certificates (including, in the case of the Class LR Certificates, amounts
distributed in respect of each Loan REMIC Residual Interest) on such
Distribution Date. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that it provided substantially comparable information
pursuant to any requirements of the Code as from time to time in force.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items provided to Certificateholders pursuant to clauses
(i) and (ii) of Section 4.02(a) above and such other information as may be
required to enable such Certificateholders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates held by Persons other than Holders
exempted from the reporting requirements and information regarding the expenses
of the Trust. Such requirement shall be deemed to be satisfied to the extent
such information is provided pursuant to applicable requirements of the Code
from time to time in force.
(b) On each Distribution Date, the Trustee shall deliver or cause
to be delivered by first class mail (or by other means of equal or greater
expediency) to each Certificateholder, each prospective investor in a
Certificate (upon request), the Depositor, the Servicer, the Special Servicer,
each Underwriter and each Rating Agency a report containing information
regarding the Mortgage Loans as of the end of the related Collection Period
(after giving effect to Principal Prepayments and other collections of principal
required to be distributed on such Distribution Date), which report shall
contain substantially the categories of information regarding the Mortgage Loans
set forth in the Prospectus under the caption "Description of the Mortgage
Pool--Additional Mortgage Loan Information" (calculated, where applicable, on
the basis of the most recent relevant information provided by the Borrowers to
the Servicer or the Special Servicer, as the case may be, and by the Servicer or
the Special Servicer, as the case may be, to the Trustee), which information
shall be presented in tabular format substantially similar to the format
utilized under such caption in the Prospectus and shall also include a
loan-by-loan listing (in descending balance order) showing loan number, property
type, location, unpaid principal balance, Mortgage Rate, paid through date,
maturity date, net interest portion of the Monthly Payment, principal portion of
the Monthly Payment and any Prepayment Premiums received. Such report shall be
made available electronically; provided, however, that the Trustee will provide
Certificateholders with a written copy of such report upon written request.
(c) On each Distribution Date, the Trustee shall deliver or cause
to be delivered by first class mail (or by other means of equal or greater
expediency) to each Certificateholder, each prospective investor in a
Certificate (upon request), the Depositor, each Underwriter and each Rating
Agency a copy of the Comparative Financial Status Report, the Delinquent Loan
Status Report, the Historical Loss Estimate Report, the Historical Loan
Modification Report, the REO Status Report, a Watch List, a Loan Payoff
Notification Report and a Premium Loan Report provided by the Servicer to the
Trustee pursuant to Section 3.13(c) and 3.13(e) on the related Servicer
Remittance Date. Such information shall also be made available on the Trustee's
website at www.lnbabs.com. The information that pertains to Specially Serviced
Mortgage Loans and REO Properties reflected in such reports shall be based
solely upon the reports delivered by the Special Servicer to the Servicer at
least two Business Days prior to the related Servicer Remittance Date. Such
reports shall be made available electronically; provided, however, that the
Trustee will provide Certificateholders with a written copy of such reports upon
written request. Absent manifest error, (i) none of the Servicer, the Special
Servicer or the Trustee shall be responsible for the accuracy or completeness of
any information supplied to it by a Borrower or third party that is included in
any reports, statements, materials or information prepared or provided by the
Servicer, the Special Servicer or the Trustee, as applicable, (ii) the Trustee
shall not be responsible for the accuracy or completeness of any information
supplied to it by the Servicer or Special Servicer that is included in any
reports, statements, materials or information prepared or provided by the
Servicer or Special Servicer, as applicable, and (iii) the Trustee shall be
entitled to conclusively rely upon the Servicer's reports, and the Special
Servicer's reports without any duty or obligation to recompute, verify or
re-evaluate any of the amounts or other information stated therein; and (iv) the
Servicer shall not be responsible for the accuracy or completeness of any
information supplied to it by the Special Servicer that is included in any
reports, statements, materials or information prepared or provided by the
Special Servicer.
The information contained in the reports in the preceding paragraph
of this Section 4.02(c) shall be made available to the Trustee electronically by
the Servicer in the form of the standard CSSA Reports, and the Trustee will make
such reports available electronically in such form to Certificateholders using
the media mutually agreed upon by the Trustee, the Underwriter and the
Depositor; provided, however, that the Trustee will continue to provide
Certificateholders with a written copy of such reports upon request in the
manner described in such preceding paragraph.
The Servicer may make available each month via the Servicer's
internet website, initially located at www.bnyassetsolutions.com, (i) to any
interested party, the Delinquent Loan Status Report, the Historical Loan
Modification Report, the Historical Loss Estimate Report, the REO Status Report,
the Loan Payoff Notification Report, the Premium Loan Report, the Watch List,
the Comparative Financial Status Report, the CSSA property file, the CSSA loan
setup file and the CSSA Loan File and, as a convenience for interested parties
(and not in furtherance of the distribution thereof under the securities laws)
the Prospectus and the Prospectus Supplement and (ii) to any Certificateholder
or Certificate Owner of a Certificate or any person identified to the Trustee as
a prospective transferee of a Certificate or any interest therein, the Rating
Agencies, the Underwriters and to the parties to this Agreement (collectively,
the "Privileged Persons"), with the use of a password provided by the Servicer
to such Privileged Person upon receipt by the Servicer from such person of a
certification in the form attached hereto as Exhibit N, the Watch List, the
Comparative Financial Status Report and the CSSA property file; provided,
however, that the Rating Agencies, the Underwriters and the parties to this
Agreement will not be required to provide such certification.
The Trustee shall deliver a copy of each Operating Statement
Analysis report and NOI Adjustment Worksheet that it receives from the Servicer
to the Depositor, each Underwriter and each Rating Agency promptly after its
receipt thereof. Upon request, the Trustee shall also make such reports
available to the Certificateholders and the Special Servicer. Upon request, the
Trustee shall also make available any NOI Adjustment Worksheet for a Mortgaged
Property or REO Property in the possession of the Trustee to any
Certificateholder or any prospective investor in the Certificates.
(d) The Trustee shall make available at its offices, during normal
business hours, upon not less than two Business Days' prior notice, for review
by any Certificateholder, any prospective investor in a Certificate, the
Depositor, the Servicer, the Special Servicer, any Rating Agency and any other
Person to whom the Depositor believes such disclosure is appropriate, originals
or copies of documents relating to the Mortgage Loans and any related REO
Properties to the extent in its possession, including, without limitation, the
following items (except to the extent prohibited by applicable law or to the
extent it is aware that such disclosure is prohibited by the Mortgage File
provided that the Trustee shall have no obligation to review the Mortgage File
for such prohibition): (i) this Agreement and any amendments thereto; (ii) all
Distribution Date Statements delivered to the Certificateholders since the
Closing Date; (iii) all annual Officers' Certificates and all accountants'
reports delivered by the Servicer or Special Servicer to the Trustee since the
Closing Date regarding compliance with the relevant agreements; (iv) the most
recent property inspection report prepared by or on behalf of the Servicer or
the Special Servicer in respect of each Mortgaged Property and REO Property; (v)
the most recent annual (or more frequent, if available) operating statements,
rent rolls (to the extent such rent rolls have been made available by the
related Borrower) and retail sales information, if any, collected by or on
behalf of the Servicer or the Special Servicer in respect to each Mortgaged
Property; (vi) any and all modifications, waivers and amendments of the terms of
a Mortgage Loan entered into by the Servicer and/or the Special Servicer; (vii)
any and all Officers' Certificates and other evidence delivered to or by the
Trustee to support the Servicer's, the Trustee's or the Fiscal Agent's, as the
case may be, determination that any Advance, if made, would be a Nonrecoverable
Advance; and (viii) any other materials not otherwise required to be provided
hereunder to a requesting Certificateholder in situations where such requesting
Certificateholder declined to enter into a confidentiality agreement with the
Servicer. Copies of any and all of the foregoing items will be available from
the Trustee upon request. The Trustee will be permitted to require payment by
the requesting party of a sum sufficient to cover the reasonable costs and
expenses of making such information available and providing any copies thereof.
The Trustee's obligation under this Section 4.02(d) to make available any
document is subject to the Trustee's receipt of such document.
The Trustee shall provide access to the information in the
Distribution Date Statements referred to in Section 4.02(a) telephonically
through the Trustee's ASAP System, electronically through the Trustee's website
or bulletin board service or by such other mechanism as the Trustee may have in
place from time to time.
(e) On or within two Business Days following each Distribution
Date, the Trustee shall prepare and furnish to each Financial Market Publisher
and each Underwriter, using the format and media mutually agreed upon by the
Trustee, each Financial Market Publisher, each Underwriter and the Depositor,
the following information regarding each Mortgage Loan and any other information
reasonably requested by each Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) the Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by this Section 4.02 to the extent it receives the
necessary underlying information from the Servicer, or the Special Servicer and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Servicer or the
Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Borrower and the failure of the Trustee, the
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
Section 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying
Agent shall comply with all federal withholding requirements with respect to
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is non-U.S. Person that has
furnished or caused to be furnished (i) an effective Form W-8 or Form W-9 or an
acceptable substitute form or a successor form and who is not a "10-percent
shareholder" within the meaning of Code Section 871(h)(3)(B) or a "controlled
foreign corporation" described in Code Section 881(c)(3)(C) with respect to the
Trust Fund or the Depositor, or (ii) an effective Form 4224 or an acceptable
substitute form or a successor form. In the event the Paying Agent or its agent
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
Section 4.04 REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the
Lower-Tier REMIC shall constitute, and that the affairs of each of the
Upper-Tier REMIC and the Lower-Tier REMIC shall be conducted so as to qualify it
as, a "real estate mortgage investment conduit" as defined in, and in accordance
with, the REMIC Provisions, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall, to the extent permitted by applicable law, act as agent, and is hereby
appointed to act as agent, of each of the Upper-Tier REMIC and the Lower-Tier
REMIC and shall on behalf of each of the Upper-Tier REMIC and the Lower-Tier
REMIC: (i) prepare, sign and file, or cause to be prepared and filed, all
required Tax Returns for each of the Upper-Tier REMIC and the Lower-Tier REMIC,
using a calendar year as the taxable year for each of the Upper-Tier REMIC and
the Lower-Tier REMIC when and as required by the REMIC Provisions and other
applicable federal, state or local income tax laws; (ii) make an election, on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC, to be treated
as a REMIC on Form 1066 for its first taxable year, in accordance with the REMIC
Provisions; (iii) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.04(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the Holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of the Upper-Tier REMIC
for this purpose), together with such additional information as may be required
by such Form, and shall update such information at the time or times and in the
manner required by the Code (and the Depositor agrees within 10 Business Days of
the Closing Date to provide any information reasonably requested by the
Servicer, the Special Servicer or the Trustee and necessary to make such
filing); and (vi) maintain such records relating to each of the Upper-Tier REMIC
and the Lower-Tier REMIC as may be necessary to prepare the foregoing returns,
schedules, statements or information, such records, for federal income tax
purposes, to be maintained on a calendar year and on an accrual basis. The
Holder of the largest Percentage Interest in the Class R and Class LR
Certificates shall be the tax matters person of the Upper-Tier REMIC, on the one
hand, and the Lower-Tier REMIC and each of the Loan REMICs, on the other hand,
pursuant to Treasury Regulations Section 1.860F-4(d). If more than one Holder
should hold an equal Percentage Interest in the Class R or Class LR Certificates
larger than that held by any other Holder, the first such Holder to have
acquired such Class R or Class LR Certificates shall be such tax matters person.
The Trustee shall act as attorney-in-fact and agent for the tax matters person
of each of the Upper-Tier REMIC, the Lower-Tier REMIC and each of the Loan
REMICs, and each Holder of a Percentage Interest in the Class R or Class LR
Certificates, by acceptance hereof, is deemed to have consented to the Trustee's
appointment in such capacity and agrees to execute any documents required to
give effect thereto, and any fees and expenses incurred by the Trustee in
connection with any audit or administrative or judicial proceeding shall be paid
by the Trust Fund. The Trustee shall not intentionally take any action or
intentionally omit to take any action if, in taking or omitting to take such
action, the Trustee knows that such action or omission (as the case may be)
would cause the termination of the REMIC status of the Upper-Tier REMIC or the
Lower-Tier REMIC or the imposition of tax on the Upper-Tier REMIC or the
Lower-Tier REMIC (other than a tax on income expressly permitted or contemplated
to be received by the terms of this Agreement). Notwithstanding any provision of
this paragraph to the contrary, the Trustee shall not be required to take any
action that the Trustee in good faith believes to be inconsistent with any other
provision of this Agreement, nor shall the Trustee be deemed in violation of
this paragraph if it takes any action expressly required or authorized by any
other provision of this Agreement, and the Trustee shall have no responsibility
or liability with respect to any act or omission of the Depositor, the Servicer
or the Special Servicer which does not enable the Trustee to comply with any of
clauses (i) through (vi) of the fifth preceding sentence or which results in any
action contemplated by clauses (i) or (ii) of the next succeeding sentence. In
this regard the Trustee shall (i) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" within the meaning of Code Section
860F(a), unless the party seeking such action shall have delivered to the
Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (A) result in a taxable gain, (B) otherwise subject the Upper-Tier
REMIC or Lower-Tier REMIC to tax (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property), or (C) cause either
the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow the Trust Fund to receive income from the
performance of services or from assets not permitted under the REMIC Provisions
to be held by a REMIC (provided, however, that the receipt of any income
expressly permitted or contemplated by the terms of this Agreement shall not be
deemed to violate this clause). None of the Servicer, the Special Servicer and
the Depositor shall be responsible or liable (except in connection with any act
or omission referred to in the two preceding sentences) for any failure by the
Trustee to comply with the provisions of this Section 4.04. The Depositor, the
Servicer and the Special Servicer shall cooperate in a timely manner with the
Trustee in supplying any information within the Depositor's, the Servicer's or
the Special Servicer's control (other than any confidential information) that is
reasonably necessary to enable the Trustee to perform its duties under this
Section 4.04.
(b) The Trustee shall administer each of the Loan REMICs in
accordance with the respective Loan REMIC Declarations and the REMIC Provisions
and shall comply with and perform all federal and, if applicable, state and
local income tax return and information reporting requirements with respect to
such Loan REMICs, and shall otherwise administer each of the Loan REMICs in the
same manner as specified for the Trust REMICs in Section 4.04(a). Each of the
Geneva Crossing Loan and the Henry W. Oliver Loan shall be serviced and
administered in accordance with the provisions of Article III hereof and the
related Loan REMIC Declaration. The Trustee shall maintain separate accounting
with respect to each of the Loan REMICs sufficient (i) to comply with such
return and information reporting requirements, including quarterly and annual
reporting on Schedule Q to Form 1066 to the holders of the Class LR Certificates
with respect to the Loan REMIC Residual Interests, (ii) to account for the Loan
REMIC Regular Interests as assets of the Lower-Tier REMIC, (iii) to pay or cause
to be paid any federal, state or local income tax attributable to a Loan REMIC
from payments received on or with respect to the related Mortgage Loan, and (iv)
to cause any payments on the related Mortgage Loan in excess amounts
distributable in respect of the related Loan REMIC Regular Interests to be
distributed in respect of the related Loan REMIC Residual Interests.
(c) The following assumptions are to be used for purposes of
determining the anticipated payments of principal and interest for calculating
the original yield to maturity and original issue discount with respect to the
Regular Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Servicer, the Depositor and the
Class LR Certificateholders will exercise the right described in Section 9.01 of
this Agreement to cause early termination of the Trust Fund; and (iii) no
Mortgage Loan is repurchased by the Mortgage Loan Seller, the Depositor or a
Mortgage Loan Seller pursuant to Article II hereof.
Section 4.05 Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or
assessments, additional amounts or additions to tax, is imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any Loan REMIC such tax shall be
charged against amounts otherwise distributable to the Holders of the
Certificates; provided, that any taxes imposed on any net income from
foreclosure property pursuant to Code Section 860G(d) or any similar tax imposed
by a state or local jurisdiction shall instead be treated as an expense of the
related REO Property in determining Net REO Proceeds with respect to the REO
Property (and until such taxes are paid, the Special Servicer from time to time
shall withdraw from the REO Account and transfer to the Trustee amounts
reasonably determined by the Trustee to be necessary to pay such taxes, which
the Trustee shall maintain in a separate, non-interest-bearing account, and the
Trustee shall deposit in the Collection Account the excess determined by the
Trustee from time to time of the amount in such account over the amount
necessary to pay such taxes) and shall be paid therefrom; provided that any such
tax imposed on net income from foreclosure property that exceeds the amount in
any such reserve shall be retained from Available Funds as provided in Section
3.06(viii) and the next sentence. Except as provided in the preceding sentence,
the Trustee is hereby authorized to and shall retain or cause to be retained
from Available Funds sufficient funds to pay or provide for the payment of, and
to actually pay, such tax as is legally owed by the Upper-Tier REMIC, the
Lower-Tier REMIC or any Loan REMIC (but such authorization shall not prevent the
Trustee from contesting, at the expense of the Trust Fund, any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The Trustee is hereby authorized
to and shall segregate or cause to be segregated, into a separate non-interest
bearing account, (i) the net income from any "prohibited transaction" under Code
Section 860F(a) or (ii) the amount of any contribution to the Upper-Tier REMIC,
the Lower-Tier REMIC or any Loan REMIC after the Startup Day that is subject to
tax under Code Section 860G(d) and use such income or amount, to the extent
necessary, to pay such tax (and return the balance thereof, if any, to the
Collection Account or the Upper-Tier Distribution Account, as the case may be).
To the extent that any such tax is paid to the IRS, the Trustee shall retain an
equal amount from future amounts otherwise distributable to the Holders of the
Class R or the Class LR Certificates (or to a Loan REMIC Residual Interest in
respect of the Class LR Certificates), as the case may be, and shall distribute
such retained amounts to the Holders of Regular Certificates, Lower-Tier Regular
Interests or Loan REMIC Regular Interest, as applicable, until they are fully
reimbursed and then to the Holders of the Class R Certificates or the Class LR
Certificates (including in respect of a Loan REMIC Residual Interest), as
applicable. None of the Servicer, the Special Servicer or the Trustee shall be
responsible for any taxes imposed on the Upper-Tier REMIC, Lower-Tier REMIC or
Loan REMICs except to the extent such tax is attributable to a breach of a
representation or warranty of the Servicer, the Special Servicer or the Trustee
or an act or omission of the Servicer, the Special Servicer or the Trustee in
contravention of this Agreement in both cases, provided, further, that such
breach, act or omission could result in liability under Section 6.03, in the
case of the Servicer or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Servicer or the Special Servicer shall not be responsible for Trustee's
breaches, acts or omissions, and the Trustee shall not be responsible for the
breaches, acts or omissions of the Servicer or the Special Servicer.
Section 4.06 Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan
with respect to any month, and subject to section 3.31(c) (A) if such Mortgage
Loan is delinquent as to its Balloon Payment (including any such Mortgage Loan
as to which the related Mortgaged Property has become an REO Property), the
related Assumed Scheduled Payment and (B) if such Mortgage Loan is not described
by the preceding clause (A) (including any such Mortgage Loan as to which the
related Mortgaged Property has become an REO Property), the Monthly Payment
(after giving effect to any modification other than as described in clause (A)
above); provided, however, that for purposes of calculating the amount of any
P&I Advance required to be made by the Servicer, the Trustee or the Fiscal
Agent, notwithstanding the amount of such Applicable Monthly Payment, interest
shall be calculated at the Mortgage Rate. The Applicable Monthly Payment shall
be reduced, for purposes of P&I Advances, by any modifications pursuant to
Section 3.29 or otherwise and by any reductions by a bankruptcy court pursuant
to a plan of reorganization or pursuant to any of its equitable powers.
(b) On the Servicer Remittance Date immediately preceding each
Distribution Date:
(i) the Servicer shall remit to the Trustee for deposit in the
Distribution Account an amount equal to the Prepayment
Premiums received by the Servicer or Special Servicer in the
Collection Period preceding such Distribution Date;
(ii) the Servicer shall remit to the Trustee for deposit in the
Distribution Account an amount equal to the aggregate of the
Available Funds (other than P&I Advances) and the Trustee Fee
for such Distribution Date; and
(iii) subject to Sections 4.06(c) and 4.06(f), the Servicer shall
make a P&I Advance by depositing into the Distribution
Account, in an amount equal to the sum of the Applicable
Monthly Payments for each Mortgage Loan (including any such
Mortgage Loan as to which the related Mortgaged Property has
become an REO Property) to the extent such amounts were not
received on such Mortgage Loan as of the close of business on
the immediately preceding Determination Date, unless related
recoveries are received by the close of business on the
Business Day prior to the Servicer Remittance Date (and
therefore are included in the remittance described in the
preceding clause (ii)).
(c) The Servicer shall not be required or permitted to make an
advance for Balloon Payments, Excess Interest or Default Interest. The amount
required to be advanced in respect of a Mortgage Loan that is delinquent in
respect of its Balloon Payment is the Assumed Scheduled Payment of such Mortgage
Loan. The amount required to be advanced by the Servicer in respect of
Applicable Monthly Payments on Mortgage Loans that have been subject to an
Appraisal Reduction Event will equal the product of (i) the amount required to
be advanced by the Servicer without giving effect to such Appraisal Reduction
Amounts and (ii) a fraction, the numerator of which is the Stated Principal
Balance of the Mortgage Loan (as of the last day of the related Collection
Period) less any Appraisal Reduction Amount in respect thereof and the
denominator of which is the related Stated Principal Balance (as of the last day
of the related Collection Period).
(d) Any amount advanced by the Servicer pursuant to Section
4.06(b)(iii) shall constitute a P&I Advance for all purposes of this Agreement
and the Servicer shall be entitled to reimbursement (with interest at the
Advance Rate) thereof to the full extent as otherwise set forth in this
Agreement; provided, however, that with respect to Advances made in connection
with the ACCOR Credit Lease Loan and the Circuit City Credit Lease Loans, such
Advance shall not accrue interest at the Advance Rate until after the expiration
of their applicable notice and cure periods from the related Due Date while such
Mortgage Loans are non-Specially Serviced Mortgage Loans only.
(e) If as of 11:00 a.m., New York City time, on any Distribution
Date the Servicer shall not have made the P&I Advance required to have been made
on the related Servicer Remittance Date pursuant to Section 4.06(b)(iii), the
Trustee shall immediately notify the Servicer and the Fiscal Agent by telephone
promptly confirmed in writing, and the Trustee shall no later than 12:00 noon,
New York City time, on such Business Day deposit into the Distribution Account
in immediately available funds an amount equal to the P&I Advances otherwise
required to have been made by the Servicer. If the Trustee fails to make any P&I
Advance required to be made under this Section 4.06, the Fiscal Agent shall make
such P&I Advance not later than 2:00 p.m., New York City time, on such Business
Day and, thereby, the Trustee shall not be in default under this Agreement.
(f) None of the Servicer, the Trustee or the Fiscal Agent shall be
obligated to make a P&I Advance as to any Monthly Payment or Assumed Scheduled
Payment on any date on which a P&I Advance is otherwise required to be made by
this Section 4.06 if the Servicer, the Trustee or Fiscal Agent, as applicable,
determines in its good faith business judgment that such advance will be a
Nonrecoverable Advance. On the fourth Business Day before each Distribution
Date, the Special Servicer shall report to the Servicer the Special Servicer's
determination as to whether each P&I Advance made with respect to any previous
Distribution Date or required to be made with respect to such Distribution Date
with respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan is in
its good faith judgment a Nonrecoverable P&I Advance; provided, however, the
Special Servicer shall not be liable to the Trust Fund or the Servicer if such
Advance shall be non-recoverable. The Servicer shall be required to provide
notice to the Trustee and the Fiscal Agent on or prior to the related Servicer
Remittance Date of any such non-recoverability determination made on or prior to
such date. The Trustee and the Fiscal Agent shall be entitled to rely,
conclusively, on any determination by the Servicer that a P&I Advance, if made,
would be a Nonrecoverable Advance; provided, however, that if the Servicer has
failed to make a P&I Advance for reasons other than a determination by the
Servicer that such Advance would be a Nonrecoverable Advance, the Trustee or
Fiscal Agent, as applicable, shall make such advance within the time periods
required by Section 4.06(e) unless the Trustee or the Fiscal Agent makes a
determination in its good faith business judgment prior to the times specified
in Section 4.06(e) that such advance would be a Nonrecoverable Advance. The
Trustee and the Fiscal Agent, in determining whether or not an Advance
previously made is, or a proposed Advance, if made, would be, a Nonrecoverable
Advance shall be subject to the standards applicable to the Servicer hereunder.
(g) The Servicer, the Trustee or the Fiscal Agent, as applicable,
shall be entitled to the reimbursement of P&I Advances it makes to the extent
permitted pursuant to Section 3.06(ii) of this Agreement together with any
related Advance Interest Amount in respect of such P&I Advances to the extent
permitted pursuant to Section 3.06(iii) and the Servicer and Special Servicer
hereby covenant and agree to promptly seek and effect the reimbursement of such
Advances from the related Borrowers to the extent permitted by applicable law
and the related Mortgage Loan.
Section 4.07 Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of
(i) the Excess Interest and the Excess Interest Distribution Account, (ii)
Repurchase Return of Premium Amounts, (iii) the Repurchase Price Return of
Premium Distribution Account and (iv) the Loan REMIC Residual Interests shall
constitute, and that the affairs of the Trust Fund (exclusive of the Trust
REMICs and the Loan REMICs) shall be conducted so as to qualify such portions as
a "grantor trust" under the Code, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall furnish or cause to be furnished (i) to the Class A-2, Class A-3, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class Q-1 and Class Q-2 Certificateholders, information as to
their allocable shares of the Excess Interest accrued thereon and (ii) to the
Class X Certificateholders, information as to the Repurchase Return of Premium
Amounts distributable thereto, and in any case such other information as may be
required under the Code and shall file or cause to be filed with the IRS such
information, together with Form 1041 or such other form as may be applicable, at
the time or times and in the manner required by the Code; provided, that the
Trustee shall report to the Class LR Certificateholders with respect to the Loan
REMIC Residual Interests in accordance with Section 4.02 and Section 4.04(b).
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates consist of the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class CS-1 Certificates,
the Class X Certificates, the Class B Certificates, the Class C Certificates,
the Class D Certificates, the Class E Certificates, the Class F Certificates,
the Class G Certificates, the Class H Certificates, the Class J Certificates,
the Class K Certificates, the Class L Certificates, Class M Certificates, the
Class N, Class Q-1 Certificates, the Class Q-2 Certificates, the Class R
Certificates and the Class LR Certificates.
The Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates will
be substantially in the forms annexed hereto as Exhibits A-1 through A-21, as
set forth in the Table of Exhibits hereto. The Certificates of each Class will
be issuable in registered form only, in minimum denominations of authorized
Certificate Balance or Notional Balance, as applicable, as described in the
succeeding table, and multiples of $1 in excess thereof (or such lesser amount
if the Certificate or Notional Balance, as applicable, is not a multiple of $1).
With respect to any Certificate or any beneficial interest in a Certificate, the
"Denomination" thereof shall be (i) the amount (A) set forth on the face thereof
or (B) in the case of any Global Certificate, set forth on a schedule attached
thereto or, in the case of any beneficial interest in a Global Certificate, the
amount set forth on the books and records of the related Participant or Indirect
Participant, as applicable, (ii) expressed in terms of Initial Certificate
Balance or Notional Balance, as applicable, and (iii) be in an authorized
denomination, as set forth below.
Minimum Aggregate Denomination of all
Class Denomination Certificates of Class
- --------------------------- ---------------- ---------------------------------
A-1 $10,000 $125,650,000
A-2 $10,000 $319,833,000
A-3 $10,000 $108,770,000
CS-1 $1,000,000 $48,000,000
X $1,000,000 $775,180,294
B $10,000 $38,759,000
C $10,000 $38,759,000
D $10,000 $11,627,000
E $10,000 $29,069,000
F $10,000 $15,503,000
G $10,000 $15,503,000
H $10,000 $15,503,000
J $10,000 $7,751,000
K $10,000 $11,627,000
L $10,000 $7,751,000
M $10,000 $7,751,000
N $10,000 $5,813,000
Q-1 $10,000 $15,510,294
Q-2 $1,000 $1,000
Each Certificate will share ratably in all rights of the related
Class. The Certificates (other than the Class R and Class LR Certificates), will
be issued, maintained and transferred in the book-entry form. The Class R and
Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates in minimum denominations of 5% Percentage
Interests and integral multiples of a 1% Percentage Interest in excess thereof
and together aggregating the entire 100% Percentage Interest in each such Class.
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the
same benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the
Trust Fund, the Paying Agent and the Trustee may for all purposes (including the
making of payments due on the Global Certificates and the giving of notice to
Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information or transmitting communications
hereunder to the extent that the Depositor has provided the Trustee with the
names of Beneficial Owners the Trustee shall provide such information to such
Beneficial Owners directly. The rights of Beneficial Owners with respect to
Global Certificates shall be limited to those established by law and agreements
between such Certificateholders and the Depository and Depository Participants.
Except as set forth in Section 5.01(e) below, Beneficial Owners of Global
Certificates shall not be entitled to physical certificates for the Global
Certificates as to which they are the Beneficial Owners. Requests and directions
from, and votes of, the Depository as Holder of the Global Certificates shall
not be deemed inconsistent if they are made with respect to different Beneficial
Owners. Subject to the restrictions on transfer set forth in Section 5.02 and
Applicable Procedures, the holder of a beneficial interest in a Private Global
Certificate may request that the Depositor, or an agent thereof, cause the
Depository (or any Agent Member) to notify the Certificate Registrar and the
Certificate Custodian in writing of a request for transfer or exchange of such
beneficial interest for an Individual Certificate or Certificates. Upon receipt
of such a request and payment by the related Beneficial Owner of any attendant
expenses, the Depositor shall cause the issuance and delivery of such Individual
Certificates. The Certificate Registrar may establish a reasonable record date
in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
Without the written consent of the Depositor and the Certificate Registrar, no
Global Certificate may be transferred by the Depository except to a successor
Depository that agrees to hold the Global Certificates for the account of the
Beneficial Owners.
(c) 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.
(d) The Global Certificates (i) shall be delivered by the
Certificate Registrar to the Depository or, pursuant to the Depository's
instructions on behalf of the Depository to, and deposited with, the Certificate
Custodian, and in either case shall be registered in the name of Cede & Co. and
(ii) shall bear a legend substantially to the following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar 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."
The Global Certificates may be deposited with such other Depository
as the Certificate Registrar may from time to time designate, and shall bear
such legend as may be appropriate.
(e) If (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Trustee is unable to locate a qualified
successor, (ii) the Depositor or the Trustee, with the consent of the
Underwriters, elects to terminate the book-entry system through the Depository
with respect to all or any portion of any Class of Certificates or (iii) after
the occurrence of an Event of Default, Beneficial Owners owning not less than a
majority in Certificate Balance or Notional Balance, as applicable, of the
Global Certificate for any Class then outstanding advise the Depository through
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Beneficial Owner
or Owners of such Global Certificate, the Trustee shall notify the affected
Beneficial Owner or Owners through the Depository of the occurrence of such
event and the availability of Individual Certificates to such Beneficial Owners
requesting them. Upon surrender to the Trustee of Global Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Trustee shall issue the Individual Certificates.
None of the Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer,
the Special Servicer or the Depositor shall be liable for any actions taken by
the Depository or its nominee, including, without limitation, any delay in
delivery of such instructions. Upon the issuance of Individual Certificates, the
Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer, the Special
Servicer, and the Depositor shall recognize the Holders of Individual
Certificates as Certificateholders hereunder.
(f) If the Trustee, its agents or the Servicer or Special Servicer
has instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under the Certificates,
and the Trustee, the Servicer or the Special Servicer has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee, the Servicer or the Special Servicer to obtain possession of
the Certificates, the Trustee, the Servicer or the Special Servicer may in its
sole discretion determine that the Certificates represented by the Global
Certificates shall no longer be represented by such Global Certificates. In such
event, the Trustee or the Authenticating Agent will execute and authenticate and
the Certificate Registrar will deliver, in exchange for such Global
Certificates, Individual Certificates (and if the Trustee or the Certificate
Custodian has in its possession Individual Certificates previously executed, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver such Certificates) in a Denomination equal to the aggregate Denomination
of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d)
of the Exchange Act, the Trustee shall make available to each Holder of a Class
Q-1, Class Q-2, Class R or Class LR Certificate, upon request of such a Holder,
information substantially equivalent in scope to the information currently filed
by the Trustee with the Commission pursuant to the Exchange Act, plus such
additional information required to be provided for securities qualifying for
resales under Rule 144A under the Act.
For so long as the Class Q-1, Class Q-2, Class R or Class LR
Certificates remain outstanding, neither the Depositor nor the Trustee nor the
Certificate Registrar shall take any action which would cause the Trust Fund to
fail to be subject to Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar
form, and each Certificate shall, upon original issue, be executed and
authenticated by the Trustee or the Authenticating Agent and delivered to the
Depositor. All Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee or Authenticating Agent by an authorized officer or
signatory. Certificates bearing the signature of an individual who was at any
time the proper officer or signatory of the Trustee or Authenticating Agent
shall bind the Trustee or Authenticating Agent, notwithstanding that such
individual has ceased to hold such office or position prior to the delivery of
such Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-21 executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 5.02 Registration, Transfer and Exchange of
Certificates.
(a) The Trustee shall keep or cause to be kept at the Corporate
Trust Office books (the "Certificate Register") for the registration, transfer
and exchange of Certificates (the Trustee, in such capacity, being the
"Certificate Registrar"). The names and addresses of all Certificateholders and
the names and addresses of the transferees of any Certificates shall be
registered in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of the individual Participants holding beneficial interests in the Trust
Fund through the Depository. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Depositor, the Certificate Registrar, the
Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any Paying Agent
and any agent of any of them shall not be affected by any notice or knowledge to
the contrary. An Individual Certificate is transferable or exchangeable only
upon the surrender of such Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements of Sections
5.02(c), (d), (e), (f), (g) and (h). Upon request of the Trustee, the
Certificate Registrar shall provide the Trustee with the names, addresses and
Percentage Interests of the Holders.
Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article V of 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 Article 5 applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register.
The Trustee and the 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 made in violation
of applicable restrictions.
(b) Upon surrender for registration of transfer of any Individual
Certificate (other than an initial transfer to an Affiliate of the Depositor),
subject to the requirements of Sections 5.02(c), (d), (e), (f), (g), (h) and
(i), the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination as the
Individual Certificate being surrendered. Such Certificates shall be delivered
by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled and
subsequently destroyed by the Certificate Registrar. Each new Certificate issued
pursuant to this Section 5.02 shall be registered in the name of any Person as
the transferring Holder may request, subject to the provisions of Sections
5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.02(d), (e), (f),
(g) and (h) and the rules of the Depository; the exchange, transfer and
registration of transfer of Individual Certificates or beneficial interests in
the Private Global Certificates shall be subject to the following restrictions:
(i) Transfers between Holders of Individual Certificates. With
respect to the transfer and registration of transfer of an
Individual Certificate representing an interest in the Class
Q-2, Class R or Class LR Certificates to a transferee that
takes delivery in the form of an Individual Certificate:
(A) The Certificate Registrar shall register the transfer of
an Individual Certificate if the requested transfer is
being made by a transferee who has provided the
Certificate Registrar with an Investment Representation
Letter substantially in the form of Exhibit D-1 hereto
(an "Investment Representation Letter"), to the effect
that the transfer is being made to a Qualified
Institutional Buyer in accordance with Rule 144A; and
(B) The Certificate Registrar shall register the transfer of
any Individual Certificate (other than the Class R and
Class LR) if prior to the transfer such transferee
furnishes to the Certificate Registrar (1) an Investment
Representations Letter to the effect that the transfer
is being made to an Institutional Accredited Investor or
to an Affiliated Person in accordance with an applicable
exemption under the Act, and (2) an Opinion of Counsel
acceptable to the Certificate Registrar that such
transfer is in compliance with the Act;
and, in each case, the Certificate Registrar shall register the
transfer of an Individual Certificate only if prior to the transfer
the transferee furnishes to the Certificate Registrar a written
undertaking by the transferor to reimburse the Trust for any costs
incurred by it in connection with the proposed transfer. In
addition, the Certificate Registrar may, as a condition of the
registration of any such transfer, require the transferor to furnish
such other certificates, legal opinions or other information (at the
transferor's expense) as the Certificate Registrar may reasonably
require to confirm that the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Act and other applicable laws.
(ii) Transfers within the Private Global Certificates.
Notwithstanding any provision to the contrary herein, so long
as a Private Global Certificate remains outstanding and is
held by or on behalf of the Depository, transfers within the
Private Global Certificates shall only be made in accordance
with this Section 5.02 and the rules of the Depository and all
applicable rules and procedures of the Depository and Cedel or
Euroclear applicable to transfers by their respective
participants (the "Applicable Procedures"). In addition, no
transfer of a Private Global Certificate shall be made unless
such transfer is exempt from the registration requirements of
the Securities Act and any applicable state or foreign
securities laws.
(iii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global
Certificate to a transferee wishing to take delivery in the
form of an Individual Certificate will require the transferee
to take delivery subject to the restrictions on the transfer
of such Individual Certificate described in the Securities
Legend, and such transferee agrees that it will transfer such
Individual Certificate only as provided therein and herein. No
such transfer shall be made and the Certificate Registrar
shall not register any such transfer unless such transfer is
made in accordance with this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will
require delivery in the form of an Individual
Certificate and the Certificate Registrar shall register
such transfer only upon compliance with the provisions
of Section 5.02(c)(i)(B).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer or a
Regulation S Investor wishing to take delivery in the
form of an Individual Certificate will be registered by
the Certificate Registrar only upon compliance with the
provisions of Sections 5.02(c)(i)(A).
Upon acceptance for exchange or transfer of a beneficial interest in
a Private Global Certificate for an Individual Certificate, as
provided herein, the Certificate Registrar shall endorse on the
schedule affixed to the related Private Global Certificate (or on a
continuation of such schedule affixed to such Private Global
Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in
the Denomination of such Private Global Certificate equal to the
Denomination of such Individual Certificate issued in exchange
therefor or upon transfer thereof. Unless determined otherwise by
the Certificate Registrar in accordance with applicable law, an
Individual Certificate issued upon transfer of or exchange for a
beneficial interest in the Private Global Certificate shall bear the
Securities Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual Certificate wishes
at any time to transfer such Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial
interest in the related Rule 144A Global Certificate, such
transfer may be effected only in accordance with the
Applicable Procedures and this Section 5.02(c)(iv). Upon
receipt by the Certificate Registrar at the Corporate Trust
Office of (1) the Individual Certificate to be transferred
with an assignment and transfer pursuant to Section 5.02(a),
(2) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the
Certificate Registrar to credit or cause to be credited to
another specified Agent Member's account a beneficial interest
in such Rule 144A Global Certificate in an amount equal to the
Denomination of the Individual Certificate to be so
transferred, (3) a written order given in accordance with the
Applicable Procedures containing information regarding the
account of the Agent Member, to be credited with such
beneficial interest, and (4) an Investment Representation
Letter from the transferee to the effect that such transferee
is a Qualified Institutional Buyer if delivery is to be taken
in the form of a beneficial interest in the Rule 144A Global
Certificate, the Certificate Registrar shall cancel such
Individual Certificate, execute and deliver a new Individual
Certificate for the Denomination of the Individual Certificate
not so transferred, registered in the name of the Holder or
the Holder's transferee (as instructed by the Holder), and the
Certificate Registrar shall instruct the Depository as the
Certificate Custodian, as applicable, to increase the
Denomination of the Rule 144A Global Certificate, as the case
may be, by the Denomination of the Individual Certificate to
be so transferred, and to credit or cause to be credited to
the account of the Person specified in such instructions a
corresponding Denomination of the Rule 144A Global
Certificate.
It is the intent of the foregoing that under no circumstances
may an Institutional Accredited Investor that is not a
Qualified Institutional Buyer take delivery in the form of a
beneficial interest in a Private Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in a
Private Global Certificate for an Individual Certificate or
Certificates, an exchange of an Individual Certificate or
Certificates for a beneficial interest in a Private Global
Certificate and an exchange of an Individual Certificate or
Certificates for another Individual Certificate or
Certificates (in each case, whether or not such exchange is
made in anticipation of subsequent transfer, and, in the case
of the Private Global Certificates, so long as the Private
Global Certificates remain outstanding and are held by or on
behalf of the Depository), may be made only in accordance with
this Section 5.02 and in accordance with the rules of the
Depository and Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or
replacement of Certificates not bearing the Securities Legend, the Certificates
so issued shall not bear the Securities Legend. If Certificates are issued upon
the transfer, exchange or replacement of Certificates bearing the Securities
Legend, or if a request is made to remove the Securities Legend on a
Certificate, the Certificates so issued shall bear the Securities Legend, or the
Securities Legend shall not be removed, as the case may be, unless there is
delivered to the Certificate Registrar such satisfactory evidence, which may
include an Opinion of Counsel (at the expense of the party requesting the
removal of such legend) familiar with United States securities laws, as may be
reasonably required by the Certificate Registrar, that neither the Securities
Legend nor the restrictions on transfers set forth therein are required to
ensure that transfers of any Certificate comply with the provisions of Rule 144A
or Rule 144 under the Act or that such Certificate is not a "restricted
security" within the meaning of Rule 144 under the Act. Upon provision of such
satisfactory evidence, the Certificate Registrar shall execute and deliver a
Certificate that does not bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Individual Certificate may transfer or
exchange the same in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Corporate Trust
Office or at the office of any transfer agent appointed as provided under this
Agreement, together with an instrument of assignment or transfer (executed by
the Holder or its duly authorized attorney), in the case of transfer, and a
written request for exchange, in the case of exchange. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within five
Business Days of such request if made at such Corporate Trust Office or within
ten Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at the Corporate Trust Office or at
the office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first Class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, an Individual Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the Corporate Trust Office or at
the office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual
Certificate issued in exchange for a beneficial interest in a Public Global
Certificate pursuant to Section 5.01) or a beneficial interest in a Private
Global Certificate may only be transferred to Eligible Investors, as described
herein. In the event that a Responsible Officer of the Certificate Registrar
becomes aware that such an Individual Certificate or beneficial interest in a
Private Global Certificate is being held by or for the benefit of a Person who
is not an Eligible Investor, or that such holding is unlawful under the laws of
a relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Individual Certificate or beneficial interest in a Private
Global Certificate to an Eligible Investor within fourteen days after notice of
such determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding
transfer and exchange, transfers of the Global Certificates shall be limited to
transfers of such Global Certificates in whole, but not in part, to nominees of
the Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 other than for transfers to
Institutional Accredited Investors, as provided herein. In connection with any
transfer to an Institutional Accredited Investor, the transferor shall reimburse
the Trust Fund for any costs (including the cost of the Certificate Registrar's
counsel's review of the documents and any legal opinions, submitted by the
transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
(i) Subject to Section 5.02(e), transfers of the Class R and Class
LR Certificates may be made only in accordance with this Section 5.02(i). The
Certificate Registrar shall register the transfer of a Class R or Class LR
Certificate only if (x) the transferor has advised the Certificate Registrar in
writing that such Certificate is being transferred to a Qualified Institutional
Buyer, an Affiliated Person and (y) prior to such transfer the transferee
furnishes to the Certificate Registrar an Investment Representation Letter. In
addition, the Certificate Registrar may as a condition of the registration of
any such transfer require the transferor to furnish such other certifications,
legal opinions or other information (at the transferor's expense) as it may
reasonably require to confirm that the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(j) None of the Depositor, the Servicer, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class R or Class
LR Certificates under the Act or any other securities law or to take any action
not otherwise required under this Agreement to permit the transfer of such
Certificates without registration or qualification. Any Certificateholder
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Servicer, the Trustee and the Certificate Registrar, against
any loss, liability or expense that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(k) No transfer of any Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class Q-1,
Class Q-2, Class R or Class LR Certificate (each, a "Restricted Certificate")
shall be made to (i) an employee benefit plan or other retirement arrangement
subject to the fiduciary responsibility provisions of ERISA, or Section 4975 of
the Code, or a governmental plan subject to any federal, state or local law
("Similar Law"), which is to a material extent, similar to the foregoing
provisions of ERISA or the Code (collectively, a "Plan") or (ii) a collective
investment fund in which a Plan is invested, an insurance company that is using
the assets of any insurance company separate account or general account in which
the assets of any such Plan are invested (or which are deemed pursuant to ERISA
or any Similar Law to include assets of Plans) to acquire any such Restricted
Certificate or any other Person acting on behalf of any Plan or using the assets
of any Plan to acquire any such Restricted Certificate, other than (with respect
to transfer of Restricted Certificates other than the Class R and Class LR
Certificates) an insurance company using the assets of its general account under
circumstances whereby such transfer to such insurance company and subsequent
holding of such Certificate and transactions in connection with the servicing,
management and operation of the Trust Fund would not constitute or result in
non-exempt "prohibited transactions" within the meaning of Section 406 or 407 of
ERISA, Section 4975 of the Code, or a materially similar characterization under
any Similar Law by reason of the application of Sections I and III of Prohibited
Transaction Exemption 95-60. Each prospective transferee of a Restricted
Certificate shall either (1) deliver to the Depositor, the Certificate Registrar
and the Trustee, a transfer or representation letter, substantially in the form
of Exhibit D-2 hereto, stating that the prospective transferee is not a Person
referred to in (i) or (ii) above or (2) in the event the transferee is such an
entity specified in (i) or (ii) above, except in the case of a Class R or Class
LR Certificate, which may not be transferred unless the transferee represents it
is not such an entity, such entity shall provide an Opinion of Counsel in form
and substance satisfactory to the Certificate Registrar that the purchase or
holding of the Restricted Certificates by or on behalf of a Plan will not result
in the assets of the Trust Fund being deemed to be "plan assets" and subject to
the fiduciary responsibility provisions of ERISA or the prohibited transaction
provisions of ERISA and the Code or Similar Law, will not constitute or result
in a prohibited transaction within the meaning of Section 406 or 407 of ERISA or
Section 4975 of the Code, and will not subject the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or the Certificate
Registrar to any obligation or liability in addition to those undertaken in this
Agreement. None of the Trustee, the Servicer or the Certificate Registrar shall
register a Class R or Class LR Certificate in any Person's name unless such
Person has provided the letter referred to in clause (1) of the preceding
sentence. The purchaser or transferee of a beneficial interest in a Global
Certificate that is a Restricted Certificate shall be deemed to represent that
it is not a Plan or a Person acting on behalf of any Plan or using the assets of
any Plan to acquire such interest other than (with respect to transfers of
beneficial interests in Global Certificates which are Restricted Certificates
other than the Class R and Class LR Certificates) an insurance company using the
assets of its general account under circumstances whereby such transfer to such
insurance company and subsequent holding of such Certificate and transactions in
connection with the servicing, management and operation of the Trust Fund would
not constitute or result in non-exempt "prohibited transactions" within the
meaning of Section 406 or 407 of ERISA, Section 4975 of the Code, or a
materially similar characterization under any Similar Law by reason of the
application of Sections I and III of Prohibited Transaction Exemption 95-60. Any
attempted or purported transfer of a Restricted Certificate that would violate
these transfer restrictions or result in a prohibited transaction under ERISA or
Section 4975 of the Code shall be deemed absolutely null and void ab initio.
(l) [Reserved]
(m) Each Person who has or acquires any Residual Interest shall be
deemed by the acceptance or acquisition of such Residual Interest to have agreed
to be bound by the following provisions and the rights of each Person acquiring
any Residual Interest are expressly subject to the following provisions:
(i) Each Person acquiring or holding any Residual Interest shall
be a Permitted Transferee and shall not acquire or hold such
Residual Interest as agent (including a broker, nominee or
other middleman) on behalf of any Person that is not a
Permitted Transferee. Any such Person shall promptly notify
the Certificate Registrar of any change or impending change in
its status (or the status of the beneficial owner of such
Residual Interest) as a Permitted Transferee. Any acquisition
described in the first sentence of this Section 5.02(l) by a
Person who is not a Permitted Transferee or by a Person who is
acting as an agent of a Person who is not a Permitted
Transferee shall be void and of no effect, and the immediately
preceding owner who was a Permitted Transferee shall be
restored to registered and beneficial ownership of the
Residual Interest as fully as possible.
(ii) No Residual Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the
express written consent of the Certificate Registrar, and the
Certificate Registrar shall not recognize the Transfer, and
such proposed Transfer shall not be effective, without such
consent with respect thereto. In connection with any proposed
Transfer of any Residual Interest, the Certificate Registrar
shall, as a condition to such consent, (x) require delivery to
it in form and substance satisfactory to it, and the proposed
transferee shall deliver to the Certificate Registrar and to
the proposed transferor an affidavit in substantially the form
attached as Exhibit C-1 (a "Transferee Affidavit") of the
proposed transferee (A) that such proposed transferee is a
Permitted Transferee and (B) stating that (i) the proposed
transferee historically has paid its debts as they have come
due and intends to do so in the future, (ii) the proposed
transferee understands that, as the holder of a Residual
Interest, it may incur liabilities in excess of cash flows
generated by the residual interest, (iii) the proposed
transferee intends to pay taxes associated with holding the
Residual Interest as they become due, (iv) the proposed
transferee will not transfer the Residual Interest to any
Person that does not provide a Transferee Affidavit or as to
which the proposed transferee has actual knowledge that such
Person is not a Permitted Transferee or is acting as an agent
(including a broker, nominee or other middleman) for a Person
that is not a Permitted Transferee, and (v) the proposed
transferee expressly agrees to be bound by and to abide by the
provisions of this Section 5.02(l) and (y) other than in
connection with the initial issuance of the Residual
Interests, require a statement from the proposed transferor
substantially in the form attached as Exhibit C-2 (the
"Transferor Letter"), that the proposed transferor has no
actual knowledge that the proposed transferee is not a
Permitted Transferee and has no actual knowledge or reason to
know that the proposed transferee's statements in the
preceding clauses (x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible
Officer of the Certificate Registrar has actual knowledge that
the proposed transferee is not a Permitted Transferee, no
Transfer to such proposed transferee shall be effected and
such proposed Transfer shall not be registered on the
Certificate Register; provided, however, that the Certificate
Registrar shall not be required to conduct any independent
investigation to determine whether a proposed transferee is a
Permitted Transferee.
Upon notice to the Certificate Registrar that there has occurred a
Transfer of a Residual Interest to any Person that is a Disqualified
Organization or an agent thereof (including a broker, nominee, or middleman) in
contravention of the foregoing restrictions, and in any event not later than 60
days after a request for information from the transferor of such Residual
Interest, or such agent, the Certificate Registrar and the Trustee agree to
furnish to the IRS and the transferor of such Residual Interest or such agent
such information necessary to the application of Section 860E(e) of the Code as
may be required by the Code, including, but not limited to, the present value of
the total anticipated excess inclusions with respect to such Residual Interest
(or portion thereof) for periods after such Transfer. At the election of the
Certificate Registrar and the Trustee, the Certificate Registrar and the Trustee
may charge a reasonable fee for computing and furnishing such information to the
transferor or to such agent referred to above; provided, however, that such
Persons shall in no event be excused from furnishing such information.
Section 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee and the Servicer harmless, then, in the absence of
actual knowledge by a Responsible Officer of the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Servicer, to execute
and deliver to the Servicer and the Trustee an instrument in which such Paying
Agent shall agree with the Servicer and the Trustee that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums have been
paid to the Certificateholders or disposed of as otherwise provided herein. The
initial Paying Agent shall be the Trustee. Except for LaSalle Bank National
Association, as the initial Paying Agent, the Paying Agent shall at all times be
an entity having a long-term unsecured debt rating of at least "AA" by Fitch,
"AA" by S&P and "Aa2" by Moody's, or shall be otherwise acceptable to each
Rating Agency.
Section 5.05 Access to Certificateholders' Names and
Addresses.
(a) If any Certificateholder, the Special Servicer or the Servicer
(for purposes of this Section 5.05, an "Applicant") applies in writing to the
Certificate Registrar, and such application states that the Applicant desires to
communicate with other Certificateholders, the Certificate Registrar shall
furnish or cause to be furnished to such Applicant a list of the names and
addresses of the Certificateholders as of the most recent Record Date, at the
expense of the Applicant, in the case of any Certificateholder and the expense
of the Trust Fund in the case of the Servicer or the Special Servicer.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee that the Trustee and the Certificate
Registrar shall not be held accountable in any way by reason of the disclosure
of any information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, when required, to the Depositor or
the Servicer. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee, the Depositor and the Servicer, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of
any such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every Holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted to
be done, by the Trustee, the Depositor or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(d The Trustee or Certificate Registrar may require such
additional proof of any matter referred to in this Section 5.06 as it shall deem
necessary.
ARTICLE VI
THE DEPOSITOR, THE SERVICER
AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Servicer
and the Special Servicer.
The Depositor, the Servicer and the Special Servicer each shall be
liable in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement.
Section 6.02 Merger or Consolidation of the Servicer
or the Special Servicer.
Subject to the following paragraph, each of the Servicer and the
Special Servicer will keep in full effect its existence, rights and good
standing (i) in the case of the Servicer, as a limited liability company under
the laws of the State of Delaware, and (ii) in the case of the Special Servicer,
a corporation under the laws of the State of Florida, and, in each case, will
not jeopardize its ability to do business in each jurisdiction in which the
Mortgaged Properties are located or to protect the validity and enforceability
of this Agreement, the Certificates or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Each of the 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 it shall be a party, or any Person succeeding to its
business of the Servicer or Special Servicer (which may be limited to its
commercial mortgage servicing business), shall be the successor of the Servicer
or the Special Servicer, respectively, hereunder, and shall be deemed to have
assumed all of the liabilities and obligations of the Servicer or the Special
Servicer, respectively, hereunder, if each of the Rating Agencies has confirmed
in writing that such merger or consolidation or transfer of assets and
succession, in and of itself, will not cause a downgrade, qualification or
withdrawal of the then-current ratings assigned by such Rating Agency to any
Class of Certificates.
Section 6.03 Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and Others.
(a) None of the Depositor, the Servicer, the Special Servicer or
any of the directors, officers, employees or agents of the Depositor, the
Servicer or the Special Servicer shall be under any liability to the Trust Fund
or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith or for errors in judgment pursuant to this
Agreement; provided, however, that this provision shall not protect the
Depositor, the Servicer or the Special Servicer or any such Person against any
breach of its warranties or representations made herein, or against any
liability which would otherwise be imposed by reason of its willful misconduct,
bad faith, fraud or negligence in the performance of duties or by reason of
reckless disregard of obligations or duties hereunder. The Depositor, the
Servicer, the Special Servicer and any director, officer, employee or agent of
the Depositor, the Servicer or the Special Servicer may rely in good faith on
any document of any kind which, prima facie, is properly executed and submitted
by any appropriate Person respecting any matters arising hereunder. The
Depositor, the Servicer, the Special Servicer and any director, officer,
employee or agent of the Depositor, the Servicer or the Special Servicer shall
be indemnified and held harmless by the Trust Fund against any loss, liability
or expense (including legal fees and expenses) (i) incurred in connection with
any legal action or claim relating to this Agreement or the Certificates
(including, without limitation, the distribution of reports and information as
contemplated by this Agreement) outside of any costs and expenses that it is
required to bear under this Agreement without reimbursement or that constitutes
a Property Advance, other than any loss, liability or expense incurred by reason
of willful misconduct, bad faith, fraud or negligence (or in the case of the
Servicer or the Special Servicer, by reason of any specific liability imposed
for a breach of the Servicing Standard) in the performance of duties hereunder
or by reason of reckless disregard of obligations or duties hereunder, in each
case by the Person being indemnified (provided that it shall be deemed
non-negligent for the Servicer to service based on Mortgage Loan information
provided to it in electronic format by, or caused to be provided by, the
Depositor for a period of 30 days after delivery to the Servicer of the Mortgage
Files), or (ii) imposed by any taxing authority if such loss, liability or
expense is not specifically reimbursable pursuant to the terms of this
Agreement. None of the Depositor, the 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 in its
opinion does not expose it to any ultimate expense or liability; provided,
however, that the Depositor, the Servicer or the Special Servicer may in its
discretion undertake any action related to its obligations hereunder which it
may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Servicer and the Special Servicer shall be
entitled to be reimbursed therefor from the Collection Account as provided in
Section 3.06 of this Agreement.
Section 6.04 Limitation on Resignation of the Servicer and
the Special Servicer; Termination of the Servicer
and the Special Servicer.
(a) The Servicer may assign its rights and delegate its duties and
obligations under this Agreement upon sixty days notice, provided that it has
obtained the consent of the Depositor and Goldman Sachs & Co. (which consent may
not be unreasonably withheld and which consent will be deemed given if such
parties do not disapprove the resignation within 60 days after notice); and
provided, further, that: (i) the purchaser or transferee accepting such
assignment and delegation (A) shall be an established mortgage finance
institution, bank or mortgage servicing institution, organized and doing
business under the laws of any state of the United States or the District of
Columbia, authorized under such laws to perform the duties of a servicer of
mortgage loans or a Person resulting from a merger, consolidation or succession
that is permitted under Section 6.02, (B) shall be acceptable to each Rating
Agency as confirmed by a letter from each Rating Agency delivered to the Trustee
that such assignment or delegation will not cause a downgrade, withdrawal or
qualification of the then-current ratings of the Certificates, and (C) shall
execute and deliver to the Trustee an agreement which contains an assumption by
such Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by the Servicer under this Agreement
from and after the date of such agreement; (ii) the Servicer shall not be
released from its obligations under this Agreement that arose prior to the
effective date of such assignment and delegation under this Section 6.04; and
(iii) the rate at which the Servicer Compensation (or any component thereof), is
calculated shall not exceed the rate then in effect. Upon acceptance of such
assignment and delegation, the purchaser or transferee shall be the successor
Servicer or Special Servicer, as applicable, hereunder. In the event that
neither the Depositor nor any successor thereto, if any, is in existence, any
consent of the Depositor under this Section 6.04(a) shall not be required.
(b) Except as provided in this Section 6.04, the Servicer and the
Special Servicer shall not resign from their respective obligations and duties
hereby imposed on them. In addition, the Servicer may resign upon determination
that its duties hereunder are no longer permissible under applicable law. Any
such determination permitting the resignation of the Servicer shall be evidenced
by an Opinion of Counsel (obtained at the resigning Servicer's expense) to such
effect delivered to the Trustee. The Special Servicer has the right to resign at
any time provided that (i) a willing successor thereto has been found, (ii) each
of the Rating Agencies confirms in writing that the successor's appointment will
not result in a withdrawal, qualification or downgrade of the current ratings
then assigned to any Class of 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.
No resignation or removal of the Servicer or the Special Servicer as
contemplated by the preceding paragraphs shall become effective until the
Trustee or a successor Servicer or Special Servicer shall have assumed the
Servicer's or the Special Servicer's responsibilities, duties, liabilities and
obligations hereunder. If no successor Servicer or Special Servicer can be
obtained to perform such obligations for the same compensation to which the
terminated Servicer or Special Servicer would have been entitled, additional
amounts payable to such successor Servicer or Special Servicer shall be treated
as Realized Losses.
Section 6.05 Rights of the Depositor and the Trustee in
Respect of the Servicer and the Special Servicer.
The Servicer and the Special Servicer shall afford the Depositor,
the Trustee, the Underwriters and the Rating Agencies, upon reasonable notice,
during normal business hours access to all records maintained by it in respect
of its rights and obligations hereunder and access to its officers responsible
for such obligations. Upon request, the Servicer and the Special Servicer shall
furnish to the Depositor, the Underwriters and the Trustee its most recent
public financial statements, which with respect to the Servicer may be delivered
on a consolidated basis, and such other information in its possession regarding
its business, affairs, property and condition, financial or otherwise as the
party requesting such information, in its reasonable judgment, determines to be
relevant to the performance of the obligations hereunder of the Servicer and the
Special Servicer. The Depositor may, but is not obligated to, enforce the
obligations of the Servicer or the Special Servicer hereunder which are in
default and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of such Person hereunder or exercise its
rights hereunder, provided that the Servicer and the Special Servicer shall not
be relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. In the event the Depositor or its designee
undertakes any such action it will be reimbursed by the Trust Fund from the
Collection Account as provided in Section 3.06 and Section 6.03(a) hereof to the
extent not recoverable from the Servicer or the Special Servicer, as applicable.
No party to this Agreement shall have any responsibility or liability for any
action or failure to act by any other party to this Agreement or shall be
obligated to monitor or supervise the performance of any other party to this
Agreement. Neither the Servicer nor the Special Servicer shall be under any
obligation to disclose confidential or proprietary information pursuant to this
Section.
Section 6.06 Servicer or Special Servicer as Owner of a
Certificate.
The Servicer or an Affiliate of the Servicer, or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder (or with
respect to a Global Certificate, Beneficial Owner) of any Certificate with the
same rights it would have if it were not the Servicer or the Special Servicer or
an Affiliate thereof. If, at any time during which the Servicer or the Special
Servicer or an Affiliate of the Servicer or the Special Servicer is the Holder
or Beneficial Owner of any Certificate, the Servicer or the Special Servicer
proposes to take action (including for this purpose, omitting to take action)
that (i) is not expressly prohibited by the terms hereof and would not, in the
Servicer's or the Special Servicer's good faith judgment, violate the Servicing
Standard, and (ii) if taken, might nonetheless, in the Servicer's or the Special
Servicer's good faith judgment, be considered by other Persons to violate the
Servicing Standard, the Servicer or the Special Servicer may seek the approval
of the Certificateholders to such action by delivering to the Trustee a written
notice that (i) states that it is delivered pursuant to this Section 6.06, (ii)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate of the Servicer or
the Special Servicer, and (iii) describes in reasonable detail the action that
the Servicer or the Special Servicer proposes to take. The Trustee, upon receipt
of such notice, shall forward it to the Certificateholders (other than the
Servicer and its Affiliates or the Special Servicer and its Affiliates, as
applicable) together with such instructions for response as the Trustee shall
reasonably determine. 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 Servicer or its Affiliates or the Special
Servicer or its Affiliates, as applicable) shall have consented in writing to
the proposal described in the written notice, and if the Servicer or the Special
Servicer 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 Servicer or the Special Servicer, as applicable, of the
reasonable expenses of the Trustee incurred pursuant to this paragraph. It is
not the intent of the foregoing provision that the Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, except in the case of unusual
circumstances.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Servicer Event of Default," wherever used herein, means any
one of the following events:
(i) any failure by the Servicer to remit to the Collection Account
or any failure by the Servicer to remit to the Trustee for
deposit into the Distribution Account, Upper-Tier Distribution
Account, Excess Interest Distribution Account or Interest
Reserve Account or any amount required to be so deposited by
the Servicer, pursuant to, and on the day specified by the
terms of this Agreement; or
(ii) any failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements or the breach of any representations or warranties
on the part of the Servicer contained in this Agreement which
continues unremedied for a period of 30 days (or 60 days, so
long as the Servicer is in good faith diligently pursuing a
cure) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
the Servicer by the Depositor, the Special Servicer or the
Trustee, or to the Servicer, the Depositor and the Trustee by
the Holders of Certificates evidencing Percentage Interests of
at least 25% of any Class affected thereby or any failure of
by the Servicer to make any P & I Advances as required
hereunder; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged
or unstayed for a period of 60 days; or
(iv) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating
to all or substantially all of its property; or
(v) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations; or
(vi) the Servicer shall fail to make any Property Advance required
to be made by the Servicer hereunder (whether or not the
Trustee or the Fiscal Agent makes such Advance), which failure
continues unremedied for a period of thirty (30) days after
the date on which such Property Advance was first due (or for
any shorter period as may be required, if applicable, to avoid
any lapse in insurance coverage required under any Mortgage or
this Agreement with respect to any Mortgaged Property or to
avoid any foreclosure or similar action with respect to any
Mortgaged Property by reason of a failure to pay real estate
taxes and assessments and if the Trustee makes a required
Property Advance pursuant to Section 3.08(a) due to the
Servicer's failure to make such an Advance when required
hereunder, such Event of Default shall occur immediately upon
such Advance).
If a Servicer Event of Default or Termination Event shall occur, then, and in
each and every such case, so long as such Servicer Event of Default or
Termination Event shall not have been remedied, the Trustee may, and at the
written direction of the Holders of at least 25% of the aggregate Voting Rights
of all Certificates shall, terminate the Servicer.
In the event that the Servicer is also the Special Servicer and the
Servicer is terminated as provided in this Section 7.01, the Servicer shall also
be terminated as Special Servicer.
(b) "Special Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Special Servicer to remit to the Collection
Account or the REO Account any amount required to be so
deposited by the Special Servicer pursuant to and in
accordance with the terms of this Agreement; or
(ii) any failure on the part of the Special Servicer duly to
observe or perform in any material respect any other of the
covenants or agreements or the breach of any representations
or warranties on the part of the Special Servicer contained in
this Agreement which continues unremedied for a period of 30
days (or 60 days, so long as the Special Servicer is in good
faith diligently pursuing a cure) after the date on which
written notice of such failure, requiring the same to be
remedied, shall have been given to the Special Servicer by the
Servicer, the Depositor or the Trustee, or to the Special
Servicer, the Servicer, the Depositor and the Trustee by the
Holders of Certificates evidencing Percentage Interests of at
least 25% of any Class affected thereby; or
(iii) confirmation in writing (a copy of which shall be provided to
the Special Servicer by the Trustee) by Fitch or Moody's that
failure to remove the Special Servicer would, in and of
itself, cause a downgrade, qualification or withdrawal of the
then-current ratings assigned to any Class of Certificates; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the Special
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v) the Special Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the Special Servicer, or
of or relating to all or substantially all of its property; or
(vi) 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 insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations; or
(vii) the Special Servicer is no longer an "approved" special
servicer by S&P as a special servicer for mortgage pools
similar to the Trust Fund or if the Special Servicer is no
longer rated by Fitch "CSS3" or its equivalent or higher and,
with respect to S&P, the designation as an approved special
servicer, is not reinstated within 30 days of the removal
thereof and with respect to Fitch, the Special Servicer is not
upgraded to "CSS3" or higher within 30 days of such downgrade;
or
(viii)the Special Servicer acquires partnership debt from any
Borrower and the Special Servicer takes a financial interest
in such Borrower.
If a Special Servicer Event of Default shall occur, then, and in each and every
such case, so long as such Special Servicer Event of Default shall not have been
remedied, the Trustee may, and at the written direction of the Holders of at
least 25% of the aggregate Voting Rights of all Certificates shall, terminate
the Special Servicer.
(c) In the event that the Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee (the "Terminating Party")
shall, by notice in writing to the Servicer or the Special Servicer, as the case
may be (the "Terminated Party"), terminate all of its rights and obligations
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than any rights the Terminated Party may have hereunder as a
Certificateholder and any rights or obligations that accrued prior to the date
of such termination (including the right to receive all amounts accrued or owing
to it under this Agreement, plus interest at the Advance Rate on such amounts
until received to the extent such amounts bear interest as provided in this
Agreement, with respect to periods prior to the date of such termination and the
right to the benefits of Section 6.03 notwithstanding any such termination). On
the receipt by the Terminated Party, of such written notice, all of its
authority and power under this Agreement, whether with respect to the
Certificates (except that the Terminated Party shall retain its rights as a
Certificateholder in the event and to the extent that it is a Certificateholder)
or the Mortgage Loans or otherwise, shall pass to and be vested in the
Terminating Party pursuant to and under this Section and, without limitation,
the Terminating Party is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the Terminated 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. The
Servicer and the Special Servicer each agree in the event it is terminated
pursuant to this Section 7.01 to promptly (and in any event no later than 10
Business Days subsequent to such notice) provide the Terminating Party with all
documents and records requested by the Terminating Party to enable the
Terminating Party to assume its functions hereunder, and to cooperate with the
Terminating Party and the successor to its responsibilities hereunder in
effecting the termination of its responsibilities and rights hereunder,
including, without limitation, the transfer to the successor Servicer or Special
Servicer or the Terminating Party, as applicable, for administration by it of
all cash amounts which shall at the time be or should have been credited by the
Servicer or the Special Servicer to the Collection Account, and any REO Account,
Lock-Box Account or Cash Collateral Account thereafter be received with respect
to the Mortgage Loans, and shall promptly provide the Terminating Party or such
successor Servicer or successor Special Servicer (which may include the
Trustee), as applicable, all documents and records reasonably requested by it,
such documents and records to be provided in such form as the Terminating Party
or such successor Servicer or Special Servicer shall reasonably request
(including electromagnetic form), to enable it to assume the Servicer's or
Special Servicer's function hereunder. All reasonable costs and expenses of the
Terminating Party incurred in connection with transferring the Mortgage Files to
the successor Servicer or Special Servicer pursuant to this Section 7.01 shall
be paid by the predecessor Servicer or Special Servicer, as applicable, upon
presentation of reasonable documentation of such costs and expenses. If the
predecessor Servicer or Special Servicer (as the case may be) has not reimbursed
the Terminating Party or the successor Servicer or Special Servicer for such
expenses within 90 days after the presentation of reasonable documentation, such
expense shall be reimbursed by the Trust Fund; provided that the Terminated
Party shall not thereby be relieved of its liability for such expenses. If and
to the extent that the Terminated Party has not reimbursed such costs and
expenses, the Terminating Party shall have an affirmative obligation to take all
reasonable actions to collect such expenses on behalf of the Trust Fund.
In the event of (a) confirmation in writing (a copy of which shall
be provided to the Servicer by the Trustee) by Fitch or Moody's that failure to
remove the Servicer will, in and of itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to any Class of Certificates; or
(b) the Servicer is no longer an "approved" master servicer by S&P as a servicer
for mortgage pools similar to the Trust Fund or if the Servicer is no longer
rated by Fitch "CMS3" or it equivalent or higher and, with respect to S&P, the
designation as an approved master servicer is not reinstated within 30 days of
the removal thereof, and, with respect to Fitch, the Servicer is not upgraded to
"CMS3" or higher within 30 days of such downgrade (each, a "Termination Event")
and the Trustee succeeds to the Servicer pursuant to Section 7.01(c), if the
Servicer delivers to the Trustee proposed bid materials within five Business
Days, the Trustee shall, within the next three Business Days, solicit good faith
bids for the rights to service the Mortgage Loans under this Agreement from at
least three Persons qualified hereunder in accordance with this Agreement to act
as successor Servicer (or if three qualified Persons cannot be located, from as
many Persons as qualified). The bid proposal shall require any Successful
Bidder, as a condition of such bid, to enter into this Agreement as successor
Servicer, and shall agree to be bound by the terms hereof within 45 days after
the termination of Servicer. The Trustee shall solicit bids (i) on the basis of
such successor 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 Servicer to service each of the Mortgage Loans not subject to a
sub-servicing agreement at a servicing fee rate of 0.03% per annum per Mortgage
Loan serviced (each a "Servicing Retained Bid") and (ii) on the basis of
terminating each sub-servicing agreement with the terminated Servicer (each a
"Servicing Released Bid"). The Trustee shall select the qualified bidder of a
Servicing Retained Bid, or if none a Servicing Released Bid, with the highest
cash bid (the "Successful Bidder") to act as successor Servicer hereunder;
provided that the Trustee shall not select the bidder of a Servicing Retained
Bid unless it receives written confirmation from the Rating Agencies that the
retention of the terminated Servicer pursuant to a subservicing agreement would
not result in the withdrawal qualification or downgrade of the then-current
ratings of any Class of Certificates. Any sub-servicing agreement entered into
by the Servicer may be terminated by the Trustee or the successor Servicer
pursuant to Section 3.01(c). The Trustee shall direct the Successful Bidder to
enter into this Agreement as successor Servicer pursuant to the terms hereof, no
later than 45 days after the termination of the Servicer.
Upon the assignment and acceptance of the 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 to the
terminated Servicer the amount of such cash bid received from the Successful
Bidder (net of expenses in connection with obtaining such bid and out-of-pocket
expenses incurred in connection with transferring the servicing of the Mortgage
Loans).
The terminated 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 Servicer of its choice and pursuant to the
terms hereof.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer receives
a notice of termination pursuant to Section 7.01, subject to the appointment of
a successor Servicer pursuant to the second paragraph of Section 7.01(c), the
Terminating Party shall be its successor in all respects in its capacity as
Servicer or Special Servicer under this Agreement and the transactions set forth
or provided for herein and, except as provided herein, shall be subject to all
the responsibilities, duties, limitations on liability and liabilities relating
thereto and arising thereafter placed on the Servicer or Special Servicer by the
terms and provisions hereof; provided, however, that (i) the Terminating Party
shall have no responsibilities, duties, liabilities or obligations with respect
to any act or omission of the Servicer or Special Servicer and (ii) any failure
to perform, or delay in performing, such duties or responsibilities caused by
the Terminated Party's failure to provide, or delay in providing, records,
tapes, disks, information or monies shall not be considered a default by such
successor hereunder. The Trustee, as successor Servicer or successor Special
Servicer, shall be indemnified to the full extent provided the Servicer or
Special Servicer, as applicable, under this Agreement prior to the Servicer's or
the Special Servicer's termination. The appointment of a successor Servicer or
successor Special Servicer shall not affect any liability of the predecessor
Servicer or Special Servicer which may have arisen prior to its termination as
Servicer or Special Servicer. The Terminating Party shall not be liable for any
of the representations and warranties of the Servicer or Special Servicer herein
or in any related document or agreement, for any acts or omissions of the
predecessor Servicer or predecessor Special Servicer or for any losses incurred
in respect of any Permitted Investment by the Servicer pursuant to Section 3.07
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Terminating Party as successor Servicer
or successor Special Servicer shall be entitled to the applicable portion of the
Servicing Compensation or to the Special Servicing Compensation, as applicable,
and all funds (other than reimbursement to the terminated Servicer for amounts
owed to it) relating to the Mortgage Loans that accrue after the date of the
Terminating Party's succession to which the Servicer or Special Servicer would
have been entitled if the Servicer or Special Servicer, as applicable, had
continued to act hereunder. In the event any Advances made by the Servicer and
the Trustee or the Fiscal Agent shall at any time be outstanding, or any amounts
of interest thereon shall be accrued and unpaid, all amounts available to repay
Advances and interest hereunder shall be applied entirely to the Advances made
by the Trustee or the Fiscal Agent (and the accrued and unpaid interest
thereon), until such Advances and interest shall have been repaid in full and
then toward Advances made by the terminated Servicer. Notwithstanding the above,
the Trustee may, if it shall be unwilling to so act, or shall, if it is unable
to so act, or if the Holders of Certificates entitled to at least 25% of the
aggregate Voting Rights so request in writing to the Trustee, or if the
long-term unsecured debt rating of the Trustee or Fiscal Agent is not at least
"AA" by Fitch, "AA" by S&P and "Aa2" by Moody's or if the Rating Agencies do not
provide written confirmation that the succession of the Trustee as Servicer or
Special Servicer, as applicable, will not cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings assigned to any Class of Certificates as evidenced in writing
by each Rating Agency, as the successor to the Servicer or Special Servicer, as
applicable, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer or Special Servicer
hereunder. No appointment of a successor to the Servicer or Special Servicer
hereunder shall be effective until the assumption by such successor of all the
Servicer's or Special Servicer's responsibilities, duties and liabilities
hereunder. Pending appointment of a successor to the Servicer (or the Special
Servicer if the Special Servicer is also the Servicer) hereunder, unless the
Trustee shall be prohibited by law from so acting, the Trustee shall act in such
capacity as herein above provided. Pending the appointment of a successor to the
Special Servicer, unless the Servicer is also the Special Servicer, the Servicer
shall act in such capacity. In connection with such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the Terminated Party hereunder, provided, further, that if no
successor to the Terminated Party can be obtained to perform the obligations of
such Terminated Party hereunder for such compensation, then, subject to approval
by the Directing Holders, additional amounts shall be paid to such successor and
such amounts in excess of that permitted the Terminated Party shall be treated
as Realized Losses. Upon determining that a successor to the Terminated Party
cannot be obtained for the compensation that the Terminated Party was receiving,
the Trustee shall give notice of that fact to the Directing Holders. Once the
Trustee has determined the amount of compensation acceptable to a proposed
successor to the Terminated Party, the Trustee shall give notice to the
Directing Holders of the identity of such successor and the proposed
compensation. The Directing Holders will then have 10 Business Days during which
to propose their own successor and compensation (which must be acceptable to the
Rating Agencies, as evidenced in writing that the appointment of such successor,
in and of itself would not result in a downgrade, qualification or withdrawal by
any Rating Agency of the then-current ratings assigned to the Certificates) or
to approve the successor and compensation proposed by the Trustee. The
Depositor, the Trustee, the Servicer or Special Servicer and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or
appointment of a successor to the Servicer or the Special Servicer, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and to each Rating
Agency.
(b) Within 30 days after the occurrence of any Event of Default or
Termination Event of which a Responsible Officer of the Trustee has actual
knowledge, the Trustee shall transmit by mail to all Certificateholders and to
each Rating Agency notice of such Event of Default or Termination Event, unless
such Event of Default or Termination Event shall have been cured or waived.
Section 7.04 Other Remedies of Trustee.
During the continuance of any Servicer Event of Default, Termination
Event or a Special Servicer Event of Default, so long as such Servicer Event of
Default, Termination Event or Special Servicer Event of Default, if applicable,
shall not have been remedied, the Trustee, in addition to the rights specified
in Section 7.01, shall have the right, in its own name as trustee of an express
trust, to take all actions now or hereafter existing at law, in equity or by
statute to enforce its rights and remedies and to protect the interests, and
enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filing of proofs of claim and debt in connection therewith).
In such event, the legal fees, expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Trustee shall be entitled to be reimbursed therefor from the
Collection Account as provided in Section 3.06. 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 Servicer Event of Default, Termination Event or Special Servicer
Event of Default, if applicable.
Section 7.05 Waiver of Past Events of Default; Termination.
The Holders of Certificates evidencing not less than 66-2/3% of the
aggregate Voting Rights of the Certificates may, on behalf of all
Certificateholders, waive any default or Termination Event by the Servicer or
Special Servicer in the performance of its obligations hereunder and its
consequences, except a default in making any required deposits (including P&I
Advances) to or, in the case of the Servicer, payments from the Collection
Account or the Distribution Account or in remitting payments as received, in
each case in accordance with this Agreement. Upon any such waiver of a past
default or Termination Event, such default shall cease to exist, and any Event
of Default or Termination Event arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default or
Termination Event of which a Responsible Officer of the Trustee has actual
knowledge and after the curing or waiver of all Events of Default or Termination
Events which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement and no permissive right
of the Trustee shall be construed as a duty. During the continuance of an Event
of Default or Termination Event of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee, subject to the provisions of Sections 7.02
and 7.05 shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement; provided, however,
that, the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument provided to it hereunder. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall take action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors,
employees, agents or "control" persons within the meaning of the Act shall have
any liability arising out of or in connection with this Agreement, provided,
that, subject to Section 8.02, no provision of this Agreement shall be construed
to relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default or Termination
Event of which a Responsible Officer of the Trustee has actual
knowledge, and after the curing or waiver of all such Events
of Default or Termination Events which may have occurred, the
duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of
bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
resolutions, certificates, statements, reports, opinions,
documents, orders or other instruments furnished to the
Trustee that conform on their face to the requirements of this
Agreement without responsibility for investigating the
contents thereof;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or
Responsible Officers, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of
Certificates entitled to greater than 50% of the Percentage
Interests (or such other percentage as is specified herein) of
each affected Class (or the Directing Holders if so specified
herein), or of the aggregate Voting Rights of the
Certificates, relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement;
(iv) Neither the Trustee nor any of its respective directors,
officers, employees, agents or control persons shall be
responsible for any act or omission of any Custodian, Paying
Agent or Certificate Registrar that is not the Trustee or any
Affiliate thereof and that is selected other than by the
Trustee, performed or omitted in compliance with any custodial
or other agreement, or any act or omission of the Servicer,
Special Servicer, the Depositor or any other Person,
including, without limitation, in connection with actions
taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental
to its respective duties as Trustee in accordance with this
Agreement (and, if it does, all legal expenses and costs of
such action shall be expenses and costs of the Trust Fund),
and the Trustee shall be entitled to be reimbursed therefor
from the Collection Account, unless such legal action arises
out of the negligence or bad faith of the Trustee or any
breach of an obligation, representation, warranty or covenant
of the Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act,
failure to act or breach of any Person upon the occurrence of
which the Trustee may be required to act, unless a Responsible
Officer of the Trustee obtains actual knowledge of such
failure. The Trustee shall be deemed to have actual knowledge
of the Servicer's or the Special Servicer's failure to provide
scheduled reports, certificates and statements when and as
required to be delivered to the Trustee pursuant to this
Agreement.
None of the provisions contained in this Agreement shall require
either the Trustee, in its capacity as Trustee, or the Fiscal Agent, to expend
or risk its own funds, or otherwise incur financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if in the opinion of the Trustee or the Fiscal Agent, respectively, the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the Servicer or the
Special Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Servicer or the Special Servicer in accordance with the
terms of this Agreement. Neither the Trustee nor the Fiscal Agent shall be
required to post any surety or bond of any kind in connection with its
performance of its obligations under this Agreement and neither the Trustee nor
the Fiscal Agent shall be liable for any loss on any investment of funds
pursuant to this Agreement.
Section 8.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or 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
to have been signed or presented by the proper party or
parties and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any such party or
parties;
(ii) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(iii) (A) The Trustee shall be under no obligation to institute,
conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered
to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein
or thereby; (B) the right of the Trustee to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable
for other than its negligence or willful misconduct in the
performance of any such act; and (C) provided, however, that
subject to the foregoing clause (A), nothing contained herein
shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Default or Termination Event (which
has not been cured or waived) of which a Responsible Officer
of the Trustee has actual knowledge, to exercise such of the
rights and powers vested in it by this Agreement, and to use
the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs;
(iv) Neither the Trustee nor any of its directors, officers,
employees, Affiliates, agents or "control" persons within the
meaning of the Act shall be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by the Trustee to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(v) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing to do so by any of the Holders of
Certificates entitled to at least 25% (of such other
percentage as is specified herein) of the Percentage Interests
of any affected Class; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to
it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a
condition to taking any such action. The reasonable expense of
every such investigation shall be paid by the Servicer or the
Special Servicer if an Event of Default or Termination Event
shall have occurred and be continuing relating to the Servicer
or the Special Servicer, respectively, and otherwise by the
Certificateholders requesting the investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents or attorneys but shall not be relieved of the
obligations hereunder.
(b) Following the Start-up Day, the Trustee shall not, except as
expressly required by any provision of this Agreement, accept any contribution
of assets to the Trust Fund or create or permit the creation of any "interests"
(within the meaning of Treasury Regulations Section 1.860D-1(b)(i)) in the Loan
REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC (other than the Loan REMIC
Interests, the Lower Tier Regular Interests or the Certificates) unless the
Trustee shall have received an Opinion of Counsel (the costs of obtaining such
opinion to be borne by the Person requesting such contribution) to the effect
that the inclusion of such assets in the Trust Fund or the creation of such
interests will not cause the Upper-Tier REMIC, the Lower-Tier REMIC or any Loan
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding or subject the Upper-Tier REMIC, the Lower-Tier REMIC or any Loan
REMIC to any tax under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility
of any Mortgage Loan for purposes of this Agreement.
Section 8.03 Trustee and Fiscal Agent Not Liable for
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not be
taken as the statements of the Trustee, the Fiscal Agent, the Servicer or the
Special Servicer and the Trustee, the Fiscal Agent, the Servicer and the Special
Servicer assume no responsibility for their correctness. The Trustee, the Fiscal
Agent, the Servicer and the Special Servicer make no representations or
warranties as to the validity or sufficiency of this Agreement, of the
Certificates or any prospectus used to offer the Certificates for sale or the
validity, enforceability or sufficiency of any Mortgage Loan, or related
document. Neither the Trustee nor the Fiscal Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage, any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement. Without limiting the foregoing, neither the Trustee nor the Fiscal
Agent shall be liable or responsible for: the existence, condition and ownership
of any Mortgaged Property; the existence of any hazard or other insurance
thereon (other than if the Trustee shall assume the duties of the Servicer or
the Special Servicer pursuant to Section 7.02) or the enforceability thereof;
the existence of any Mortgage Loan or the contents of the related Mortgage File
on any computer or other record thereof (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02);
the validity of the assignment of any Mortgage Loan to the Trust Fund or of any
intervening assignment; the completeness of any Mortgage File; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Servicer or the Special Servicer pursuant to Section 7.02); the
compliance by the Depositor, the Servicer or the Special Servicer with any
warranty or representation made under this Agreement or in any related document
or the accuracy of any such warranty or representation prior to the Trustee's
receipt of notice or other discovery of any non-compliance therewith or any
breach thereof; any investment of monies by or at the direction of the Servicer
or any loss resulting therefrom, it being understood that the Trustee shall
remain responsible for any Trust Fund property that it may hold in its
individual capacity; the acts or omissions of any of the Depositor, the Servicer
or the Special Servicer (other than if the Trustee shall assume the duties of
the Servicer or Special Servicer pursuant to Section 7.02) or any sub-servicer
or any Borrower; any action of the Servicer or Special Servicer (other than if
the Trustee shall assume the duties of the Servicer or Special Servicer pursuant
to Section 7.02) or any sub-servicer taken in the name of the Trustee, except to
the extent such action is taken at the express written direction of the Trustee;
the failure of the Servicer or the Special Servicer or any sub-servicer to act
or perform any duties required of it on behalf of the Trust Fund or the Trustee
hereunder; or any action by or omission of the Trustee taken at the instruction
of the Servicer or the Special Servicer (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02)
unless the taking of such action is not permitted by the express terms of this
Agreement; provided, however, that the foregoing shall not relieve the Trustee
of its obligation to perform its duties as specifically set forth in this
Agreement. Neither the Trustee nor the Fiscal Agent shall be accountable for the
use or application by the Depositor, the Servicer or the Special Servicer of any
of the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, the Servicer or the Special
Servicer in respect of the assignment of the Mortgage Loans or deposited in or
withdrawn from the Collection Account, Distribution Account, Upper-Tier
Distribution Account, Lock-Box Account, Cash Collateral Account, Reserve
Accounts, Interest Reserve Account, Excess Interest Distribution Account and
Repurchase Price Return of Premium Distribution Account or any other account
maintained by or on behalf of the Servicer or the Special Servicer, other than
any funds held by the Trustee or the Fiscal Agent, as applicable. Neither the
Trustee nor the Fiscal Agent shall have any responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Servicer) or to record this Agreement. In making any calculation hereunder which
includes as a component thereof the payment or distribution of interest for a
stated period at a stated rate "to the extent permitted by applicable law," the
Trustee shall assume that such payment is so permitted unless a Responsible
Officer of the Trustee has actual knowledge, or receives an Opinion of Counsel
(at the expense of the Person asserting the impressibility) to the effect, that
such payment is not permitted by applicable law.
Section 8.04 Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent and any agent of the Trustee and
Fiscal Agent in its individual capacity or any other capacity may become the
owner or pledgee of Certificates, and may deal with the Depositor and the
Servicer in banking transactions, with the same rights it would have if it were
not Trustee, Fiscal Agent or such agent.
Section 8.05 Payment of Trustee's Fees and Expenses;
Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on
each Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
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
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Servicer or the Special Servicer hereunder pursuant to
or otherwise arising from the resignation or removal of the Servicer or the
Special Servicer, the Trustee shall be entitled to the compensation to which the
Servicer or the Special Servicer, as the case may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or
reimbursed by the Trust Fund upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee or the Fiscal Agent
pursuant to and in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) to the extent such
payments are "unanticipated expenses incurred by the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(iii) except any such expense,
disbursement or advance as may arise from its negligence, bad faith or willful
misconduct; provided, however, that, subject to the last paragraph of Section
8.01, neither the Trustee nor the Fiscal Agent shall refuse to perform any of
its duties hereunder solely as a result of the failure to be paid the Trustee
Fee and the Trustee's expenses or any sums due to the Fiscal Agent.
The Servicer and the Special Servicer covenant and agree to pay or
reimburse the Trustee for the reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with any transfer of the servicing
responsibilities of the Servicer or the Special Servicer, respectively,
hereunder, pursuant to or otherwise arising from the resignation or removal of
the Servicer, in accordance with any of the provisions of this Agreement (and
including the reasonable and necessary fees and expenses and disbursements of
its counsel and all other persons not regularly in its employ), except any such
expense, disbursement or advance as may arise from the negligence or bad faith
of the Trustee or expenses incurred by the Trustee in its capacity as successor
Servicer.
(c) Each of the Paying Agent, the Certificate Registrar, the
Custodian, the Depositor, the Servicer, the Special Servicer and the Trustee
(each, a "Cross-Indemnifying Party") shall indemnify the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent and their respective Affiliates and
each of the directors, officers, employees and agents of the Trustee, the Fiscal
Agent and their respective Affiliates (each, a "Cross-Indemnified Party"), and
hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the
Cross-Indemnified Party may sustain in connection with this Agreement
(including, without limitation, reasonable fees and disbursements of counsel
incurred by the Cross-Indemnified Party in any action or proceeding between the
Cross-Indemnifying Party and the Cross-Indemnified Party or between the
Cross-Indemnified Party and any third party or otherwise) as a result of each
such Cross-Indemnifying Party's respective willful misconduct, bad faith, fraud
and/or negligence in the performance of each of its respective duties hereunder
or by reason of reckless disregard of its respective obligations and duties
hereunder (including in the case of the Servicer, any agent of the Servicer or
sub-servicer).
(d) The Trust Fund shall indemnify the Trustee and the Fiscal
Agent and their respective Affiliates and each of the directors, officers,
employees and agents of the Trustee, the Fiscal Agent and their respective
Affiliates (each, a "Trust-Indemnified Party") from, and hold it harmless
against, any and all losses, liabilities, damages, claims or unanticipated
expenses (including, without limitation, reasonable fees and disbursements of
counsel incurred by the Trust-Indemnified Party in any action or proceeding
between any of the Paying Agent, the Certificate Registrar, the Custodian, the
Depositor, the Servicer and the Special Servicer and the Trust-Indemnified Party
or between the Trust-Indemnified Party and any third party or otherwise) arising
in respect of this Agreement or the Certificates, in each case to the extent and
only to the extent, such payments are expressly reimbursable under this
Agreement or are "unanticipated expenses incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii), other than (i)
those resulting from the negligence, fraud, bad faith or willful misconduct of
the Trust-Indemnified Party and (ii) those as to which such Trust-Indemnified
Party is entitled to indemnification pursuant to Section 8.05(c). The term
"unanticipated expenses incurred by the REMIC" shall include any fees, expenses
and disbursement of any separate trustee or co-trustee appointed hereunder, only
to the extent such fees, expenses and disbursements were not reasonably
anticipated as of the Closing Date and the losses, liabilities, damages, claims
or expenses (including reasonable attorneys' fees) incurred or advanced by a
Trust-Indemnified Party in connection with any litigation arising out of this
Agreement, including, without limitation, under Section 2.03, Section 3.10, the
third paragraph of Section 3.11, Section 4.05 and Section 7.01. The right of
reimbursement of the Trust-Indemnified Parties under this Section 8.05(d) shall
be senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section
8.05 shall survive the termination or maturity of this Agreement or the
resignation or removal of the Trustee or the Fiscal Agent, as the case may be,
as regards rights accrued prior to such resignation or removal and (with respect
to any acts or omissions during their respective tenures) the resignation,
removal or termination of the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but
not be limited to, such indemnities, compensation, expenses, disbursements,
advances, losses, liabilities, damages and the like, as may pertain or relate to
any environmental law or environmental matter.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall satisfy the requirements of Section
26(a)(1) of the Investment Company Act of 1940, as amended, and shall at all
times be a corporation or association organized and doing business under the
laws of any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and a
rating on its unsecured long-term debt of at least "BBB" by S&P and "Baa2" by
Moody's (or at any time when there is no Fiscal Agent appointed and acting
hereunder or any such Fiscal Agent so appointed has a rating on its long-term
unsecured debt that is lower than "AA" by Fitch, "AA" by S&P and "Aa2" by
Moody's (without regard to any minus or numeric qualifier) the rating on the
unsecured long term debt of the Trustee must be at least "AA" by Fitch, "AA" by
S&P and "Aa2" by Moody's, or meet different standards, provided that each Rating
Agency shall have confirmed in writing that such different standards would not,
in and of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates) and subject to supervision or
examination by federal or state authority and shall not be an Affiliate of the
Servicer (except during any period when the Trustee has assumed the duties of
the Servicer pursuant to Section 7.02). If a corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In the event that the place of business
from which the Trustee administers the Trust Fund is a state or local
jurisdiction that imposes a tax on the Trust Fund or the net income of a REMIC
(other than a tax corresponding to a tax imposed under the REMIC Provisions) the
Trustee shall elect either to (i) resign immediately in the manner and with the
effect specified in Section 8.07, (ii) pay such tax and continue as Trustee or
(iii) administer the Trust Fund from a state and local jurisdiction that does
not impose such a tax. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07.
Section 8.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Servicer,
the Special Servicer and each Rating Agency. Upon such notice of resignation,
the Fiscal Agent shall also be deemed to have been removed and, accordingly, the
Servicer shall promptly appoint a successor Trustee, the appointment of which
would not, in and of itself, result in a downgrade, qualification or withdrawal
by any Rating Agency of the then-current ratings assigned to the Certificates,
and a successor Fiscal Agent (if necessary to satisfy the requirements contained
in Section 8.06), the appointment of which, if the successor Trustee is not
rated by each Rating Agency in one of its two highest long-term debt rating
categories, would not, in and of itself, result in a downgrade, qualification or
withdrawal by any Rating Agency of the then-current ratings assigned to the
Certificates, by written instrument, in triplicate, which instrument shall be
delivered to the resigning Trustee, with a copy to the Fiscal Agent deemed
removed, and the successor Trustee and successor Fiscal Agent. If no successor
Trustee and successor Fiscal Agent shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee and the Fiscal Agent may petition any court
of competent jurisdiction for the appointment of a successor Trustee and
successor Fiscal Agent.
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 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 upon
a confirmation in writing by any Rating Agency that not terminating the Trustee,
or the Fiscal Agent, as applicable, would, in and of itself, cause the
then-current rating assigned to any Class of Certificates to be qualified,
withdrawn or downgraded, then the Depositor or the Servicer shall remove the
Trustee and the Fiscal Agent and the Servicer shall promptly appoint a successor
Trustee and successor Fiscal Agent by written instrument, which shall be
delivered to the Trustee and the Fiscal Agent so removed and to the successor
Trustee and the successor Fiscal Agent.
The Holders of Certificates entitled to at least 50% of the Voting
Rights may at any time remove the Trustee and the Fiscal Agent (and any removal
of the Trustee shall be deemed to be a removal also of the Fiscal Agent) and
appoint a successor Trustee and successor Fiscal Agent by written instrument or
instruments, in eight originals, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Servicer, one complete
set to the Trustee so removed, one complete set to the Fiscal Agent deemed
removed, one complete set to the successor Trustee so appointed and one complete
set to the successor Fiscal Agent so appointed.
In the event of removal of the Trustee, the Fiscal Agent shall be
deemed to have been removed.
In the event that the Trustee or Fiscal Agent is terminated or
removed pursuant to this Section 8.07, all of its rights and obligations under
this Agreement and in and to the Mortgage Loans shall be terminated, other than
any rights or obligations that accrued prior to the date of such termination or
removal (including the right to receive all fees, expenses and other amounts
accrued or owing to it under this Agreement, plus interest at the Advance Rate
on all such amounts until received to the extent such amounts bear interest as
provided in this Agreement, with respect to periods prior to the date of such
termination or removal).
Any resignation or removal of the Trustee and Fiscal Agent and
appointment of a successor Trustee and, if such trustee is not rated at least
"AA" by each Rating Agency, a successor Fiscal Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee and, if necessary, successor Fiscal Agent
as provided in Section 8.08.
All reasonable costs and expenses of the Depositor or Servicer and
the successor Trustee incurred in connection with transferring the Mortgage
Files to the successor Trustee and amending this Agreement to reflect such
succession as successor Trustee and otherwise causing the transfer required
pursuant to this Section 8.07 shall be paid by the predecessor Trustee upon
presentation of reasonable documentation of such costs and expenses or if not
paid by such predecessor, after exercising reasonable diligence in attempting to
receive such compensation from the predecessor Trustee, then by the Trust Fund.
Section 8.08 Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any successor Fiscal Agent appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, to the Servicer and to the predecessor Trustee and predecessor Fiscal
Agent, as the case may be, instruments accepting their appointment hereunder,
and thereupon the resignation or removal of the predecessor Trustee and
predecessor Fiscal Agent shall become effective and such successor Trustee and
successor Fiscal Agent, 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 or
Fiscal Agent herein, provided that the appointment of such successor Trustee and
successor Fiscal Agent shall not, as evidenced in writing, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates. The predecessor Trustee shall deliver to the successor Trustee
all Mortgage Files and related documents and statements held by it hereunder,
and the Depositor and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations. No successor Trustee shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor Trustee shall be eligible under the provisions of
Section 8.06.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
Trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor Trustee or Fiscal Agent appointed pursuant to
this Agreement shall satisfy the eligibility requirements set forth in Section
8.06 hereof.
Section 8.09 Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
8.06, 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.
Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act (at the expense of the Trustee) as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default or
Termination Event shall have occurred and be continuing, the Trustee alone shall
have the power to make such appointment. Except as required by applicable law,
the appointment of a co-trustee or separate trustee shall not relieve the
Trustee of its responsibilities, obligations and liabilities hereunder. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 8.06 hereunder and no notice to
Certificateholders of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Fund or any portion thereof in any
such jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by reason
of any act or omission of any prior trustee under this Agreement. The Depositor
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee, or if the separate trustee or
co-trustee is an employee of the Trustee, the Trustee acting alone may accept
the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Every such instrument shall be filed with the Trustee.
Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of affecting the liability of or affording protection to
such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Fiscal Agent Appointed; Concerning the Fiscal
Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the initial
Fiscal Agent hereunder for the purposes of exercising and performing the
obligations and duties imposed upon the Fiscal Agent by Sections 3.24 and 4.06.
(b) The Fiscal Agent undertakes to perform such duties and only
such duties as are specifically set forth in Sections 3.24 and 4.06.
(c) No provision of this Agreement shall be construed to relieve
the Fiscal Agent from liability for its own negligent failure to act or its own
willful misfeasance or for a breach of a representation or warranty contained
herein; provided, however, that (i) the duties and obligations of the Fiscal
Agent shall be determined solely by the express provisions of Sections 3.24 and
4.06, the Fiscal Agent shall not be liable except for the performance of such
duties and obligations, no implied covenants or obligations shall be read into
this Agreement against the Fiscal Agent and, in the absence of bad faith on the
part of the Fiscal Agent, the Fiscal Agent may conclusively rely, as to the
truth and correctness of the statements or conclusions expressed therein, upon
any resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Fiscal Agent by the Depositor, the
Servicer, the Special Servicer or the Trustee and which on their face do not
contradict the requirements of this Agreement, and (ii) the provisions of clause
(ii) of Section 8.01(c) shall apply to the Fiscal Agent.
(d) Except as otherwise provided in Section 8.11(c), the Fiscal
Agent also shall have the benefit of provisions of clauses (i), (ii), (iii)
(other than the proviso thereto), (iv), (v) (other than the proviso thereto) and
(vi) of Section 8.02(a).
ARTICLE IX
TERMINATION
Section 9.01 Termination.
(a) The respective obligations and responsibilities of the
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created hereby with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate immediately following the occurrence of
the last action required to be taken by the Trustee pursuant to this Article IX
on the Termination Date; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of twenty-one years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the United Kingdom, living on the date
hereof.
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC
shall be terminated and the assets of the Trust Fund shall be sold or otherwise
disposed of in connection therewith, only pursuant to a "plan of complete
liquidation" within the meaning of Code Section 860F(a)(4)(A) providing for the
actions contemplated by the provisions hereof pursuant to which the applicable
Notice of Termination is given and requiring that the Trust Fund, the Upper-Tier
REMIC and the Lower-Tier REMIC shall terminate on a Distribution Date occurring
not more than 90 days following the date of adoption of the plan of complete
liquidation. For purposes of this Section 9.01(b), the Notice of Termination
given pursuant to Section 9.01(c) shall constitute the adoption of the plan of
complete liquidation as of the date such notice is given, which date shall be
specified by the Trustee in the final federal income tax returns of the
Upper-Tier REMIC and the Lower-Tier REMIC. The Loan REMICs shall be terminated
in such a complete liquidation simultaneously with the Upper-Tier REMIC and the
Lower-Tier REMIC and in accordance with the provisions of the respective Loan
REMIC Declarations; provided, that any Loan REMIC shall terminate without
liquidation on any earlier Distribution Date following a Final Recovery
Determination or other payment in full with respect to the related Mortgage
Loan. Notwithstanding the termination of the Trust REMICs, the Loan REMICs or
the Trust Fund, the Trustee shall be responsible for filing the final Tax
Returns for the Trust REMICs and the Loan REMICs and applicable income tax or
information returns for the Grantor Trust for the period ending with such
termination, and shall retain books and records with respect to the Trust
REMICs, the Loan REMICs and the Grantor Trust for the same period of retention
for which it maintains its own tax returns or other reasonable period.
(c) The Depositor, and if the Depositor does not exercise the
option, the Special Servicer, and if neither the Depositor nor the Special
Servicer exercises the option, the Servicer and, if none of the Servicer, the
Special Servicer or the Depositor exercises the option, the holders of the Class
LR Certificates representing greater than a 50% Percentage Interest in such
Class may effect an early termination of the Trust Fund, upon not less than 30
days' prior Notice of Termination given to the Trustee and Servicer any time on
or after the Early Termination Notice Date specifying the Anticipated
Termination Date, on any Distribution Date on which the aggregate Stated
Principal Balance as of the day immediately prior to such Distribution Date of
the Mortgage Loans remaining in the Trust Fund is less than 1% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans and
REO Properties then included in the Trust Fund, and all other property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan (excluding any REO Mortgage Loan) included
in the Trust Fund as of the last day of the month
preceding such Distribution Date (less any P&I Advances
previously made on account of principal);
(B) the fair market value of all other property (including
any REO Property) included in the Trust Fund as of the
last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to
the Servicer as of the date not more than 30 days prior
to the last day of the month preceding such Distribution
Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable), to the last
day of the Collection Period preceding such Distribution
Date (less any P&I Advances previously made on account
of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon, and unpaid Trust Fund expenses;
(E) the Repurchase Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent Appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to this Section 9.01(c) shall
be borne by the party exercising its purchase rights hereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to this subsection (c).
Anything in this Section 9.01 to the contrary notwithstanding, the
holders of the Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class Q-1 and
Class Q-2 Certificates shall receive that portion of the proceeds of a sale of
the assets of the Trust Fund allocable to Excess Interest, as their interests
may appear based upon their original Certificate Balances.
(d) If the Trust Fund has not been previously terminated pursuant
to subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests notwithstanding that such distribution may be insufficient to
distribute in full the Certificate Balance of each Certificate or Lower-Tier
Regular Interest, together with amounts required to be distributed on such
Distribution Date pursuant to Section 4.01(a), (b), (c) or (d) or (ii) if no
such Classes of Certificates are then outstanding, to the Holders of the Class
LR Certificates of any amount remaining in the Collection Account or the
Distribution Account, to the Holders of the Class R Certificates of any amount
remaining in the Upper-Tier Distribution Account, to the Holders of the Class
A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class Q-1 and Class Q-2
Certificates their allocable shares of any amount remaining in the Excess
Interest Distribution Account, and to the Holders of the Class X Certificates of
any amount remaining in the Repurchase Price Return of Premium Distribution
Account, in each case, following the later to occur of (A) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund or (B) the liquidation or disposition pursuant to Section 3.18 of the last
asset held by the Trust Fund.
(e) Notice of any termination of the Trust Fund pursuant to this
Section 9.01 shall be mailed by the Trustee to affected Certificateholders with
a copy to the Servicer, the Special Servicer and each Rating Agency at their
addresses shown in the Certificate Registrar as soon as practicable after the
Trustee shall have received, given or been deemed to have received a Notice of
Termination but in any event not more than thirty days, and not less than ten
days, prior to the Anticipated Termination Date. The notice mailed by the
Trustee to affected Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of
Certificates of the Classes specified therein;
(ii) specify the amount of any such final distribution, if known;
and
(iii) state that the final distribution to Certificateholders will
be made only upon presentation and surrender of Certificates
at the office of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of
the failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any such amounts transferred to
the Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
(g) The Holder of 100% of the Percentage Interests in the most
subordinate Class of Sequential Certificates outstanding (other than the Class
Q-2 Certificates) may purchase any Mortgage Loan on its Anticipated Repayment
Date, if any, at a price equal to the sum of the following:
(i) 100% of the outstanding principal balance of such Mortgage
Loan on such Anticipated Repayment Date (less any P&I Advances
previously made on account of principal);
(ii) all unpaid interest accrued on such principal balance of such
Mortgage Loan at the Mortgage Rate thereof, to the last day of
the Interest Accrual Period preceding such Anticipated
Repayment Date (less any P&I Advances previously made on
account of interest);
(iii) the aggregate amount of all unreimbursed Advances with respect
to such Mortgage Loan, with interest thereon at the Advance
Rate, and unpaid Special Servicing Compensation, Servicing
Compensation, Trustee Fees and Trust Fund expenses; and
(iv) the amount of any Liquidation Expenses incurred by the Trust
Fund in connection with such purchase;
provided, that, such Holder, at its expense, has provided the Trustee with an
Opinion of Counsel to the effect that such purchase would not (x) result in a
gain which would be subject to the tax on net income derived from "prohibited
transactions" imposed by Code Section 860F(a)(1) or otherwise result in the
imposition of any other tax on the Lower-Tier REMIC, the Upper-Tier REMIC or any
Loan REMIC under the REMIC Provisions or (y) cause the Upper-Tier REMIC, the
Lower-Tier REMIC or any Loan REMIC to fail to qualify as a REMIC; such opinion
relying upon appraisals of the fair market value (for the purposes of Section
860F(c)(1) of the Code) of such Mortgage Loan by at least three Independent
appraisers.
Notwithstanding the foregoing, such Mortgage Loan may not be
purchased if the fair market value of the Mortgage Loan is greater than 100% of
the outstanding principal balance of such Mortgage Loan.
The Holder of 100% of the most subordinate Class of Sequential
Certificates (provided that the Class Q-2 Certificates shall not be considered a
Class for such purposes) may purchase any Mortgage Loan on or after its
Anticipated Repayment Date under the same terms and conditions hereunder as in
the case of a purchase by the Holder of the Class LR Certificates if the Holder
of the Class LR Certificates either (i) notifies the Holder of the most
subordinate Class of Sequential Certificates that it will not purchase such
Mortgage Loan or (ii) does not, in fact, purchase such Mortgage Loan on its
Anticipated Repayment Date.
The proceeds of any such purchase hereunder shall be deposited in
the Collection Account and disbursed as provided herein.
Notwithstanding anything to the contrary contained in this Section
9.01(g), if the Class LR or most subordinate Class of Certificates shall be held
by an Affiliate of the Depositor, such Affiliate may not exercise any of the
purchase rights under this Section 9.01(g) with respect to a Mortgage Loan that
is in default.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 10.02 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement or any Mortgage Loan, unless such Holder previously shall have given
to the Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 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 of any Class shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 10.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Notices.
All demands, notices and communications hereunder shall be in
writing, shall be deemed to have been given upon receipt (except that notices to
Holders of Class Q-1, Class Q-2, Class R and Class LR Certificates or Holders of
any Class of Certificates no longer held through a Depository and instead held
in registered, definitive form shall be deemed to have been given upon being
sent by first class mail, postage prepaid) as follows:
If to the Trustee, to:
LaSalle Bank National Association
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities
Trust Services Group, CMAT 1999-C2
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities
Trust Services Group, CMAT 1999-C2
If to the Depositor, to:
Asset Securitization Corporation
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: Brad Altberger
and to:
Asset Securitization Corporation
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: General Counsel
and to:
Asset Securitization Corporation
101 California Street
San Francisco, CA 94111
Attention: Brad Altberger
With a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Anna H. Glick
If to the Servicer, to:
BNY Asset Solutions LLC
6550 Rock Spring Drive, Suite 280
Bethesda, Maryland 20817
Attention: President
With a copy to:
BNY Asset Solutions LLC
600 East Las Colinas Boulevard, Suite 1300
Irving, Texas 75039
Attention SVP, Risk Management
If to the Special Servicer, to:
Lennar Partners, Inc.
760 N.W. 107th Avenue
Suite 400
Miami, Florida 33172
Attention: Ronald E. Schrager
With copies to:
Bilzin Sumberg Dunn Price & Axelrod LLP
2500 First Union Financial Center
Miami, Florida 33131
Attention: Brian Bilzin
If to either Mortgage Loan Seller, to:
The Capital Company of America LLC
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: Brad Altberger
If to NHA, to:
Nomura Holding America, Inc.
2 World Financial Center
Building B, 19th Floor
New York, New York 10281-1198
Attention: Ray Carli
and to:
Nomura Holding America, Inc.
2 World Financial Center
Building B, 18th Floor
New York, New York 10281-1198
Attention: Legal Department
If to any Certificateholder, to:
the address set forth in the
Certificate Register,
If to the Underwriters, to:
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Attention: Christine Kwak
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, NY 10172
Attention: Ray Potter
Nomura Securities International, Inc.
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: Jacqueline Brady
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
Section 10.05 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then, to the
extent permitted by applicable law, such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.06 Notice to the Depositor and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide
notice to the Depositor, each Underwriter and each Rating Agency with respect to
each of the following of which a Responsible Officer of the Trustee has actual
knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default or Termination Event
that has not been cured;
(iii) the merger, consolidation, resignation or termination of the
Servicer, Special Servicer, the Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d)
or 2.03(e);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account or the
Distribution Account;
(vii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Servicer;
(viii)each report to Certificateholders described in Section 4.02
and Section 3.22;
(ix) any change in the lien priority of a Mortgage Loan;
(x) any new lease of an anchor or a termination of an anchor lease
at a retail Mortgaged Property;
(xi) [Reserved];
(xii) any material damage to a Mortgaged Property;
(xiii)any amendment, modification, consent or waiver to or of any
provision of a Mortgage Loan; and
(xiv) any substitution or release of collateral hereunder.
(b) The Servicer shall promptly furnish to each Rating Agency (and
to the Special Servicer with respect to clause (iv) below and with respect to
Mortgage Loans on the Watch List, clause (iii)) copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.14;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.15;
(iii) except with respect to Fitch, a copy of each rent roll and
each operating and other financial statement and occupancy
reports, to the extent such information is required to be
delivered under a Mortgage Loan, in each case to the extent
collected pursuant to Section 3.03; however, with respect to
S&P, the Servicer shall provide only the quarterly and annual
statements or reports; and
(iv) a copy of any notice with respect to a breach of a
representation or warranty by the Mortgage Loan Seller with
respect to any Mortgage Loan.
(c) The Servicer shall furnish each Rating Agency, each
Underwriter and the Depositor with such information with respect to the Trust
Fund, a Mortgaged Property, a Borrower and any Mortgage Loan as such Rating
Agency, such Underwriter or the Depositor shall reasonably request and which the
Servicer can reasonably obtain without undue cost. The Servicer may request
reimbursement, for its reasonable copying costs with respect to such
information, from the requesting party (other than the Rating Agencies). The
Rating Agencies shall not be charged any fee or expense in connection therewith.
The Servicer shall send copies to the Depositor of any information provided to
any Rating Agency; provided, however, that the Servicer shall only provide the
Depositor with copies of the items mentioned in Section 10.06(b)(iii) upon the
Depositor's request therefor.
(d) Notices to each Rating Agency shall be addressed as follows:
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Managing Director
Commercial Mortgage-Backed Securities
Standard & Poor's Rating Services,
a division of The McGraw Hill Companies, Inc.
55 Water Street
New York, New York 10041
Attention: Commercial Mortgage Surveillance
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto. In addition, with respect to any request
for Rating Agency confirmation pursuant to any of the provisions of this
Agreement, the party seeking such Rating Agency confirmation shall deliver a
copy of such request to the Depositor.
Section 10.07 Amendment.
This Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer, the Trustee and
the Fiscal Agent, without the consent of any of the Certificateholders, (i) to
cure any ambiguity, (ii) to correct or supplement any provisions herein or
therein that may be defective or inconsistent with any other provisions herein
or therein, (iii) to amend any provision hereof to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions herein or therein that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, (v) to
amend or supplement any provision hereof to the extent necessary to reallocate
any responsibilities or rights as between the Servicer and the Special Servicer,
upon confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates or (vi) to make any other
provisions with respect to matters or questions arising under this Agreement,
which shall not be inconsistent with the provisions of this Agreement and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
This Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates
representing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under this Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard or the obligations of the
Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders
of all Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of
this Agreement without the consent of all the holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend this Agreement to modify, eliminate
or add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMICs as two separate REMICs, of the Loan REMICs
as two separate REMICs and of the portion of the Trust Fund exclusive of the
Trust REMICs and the Loan REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
In the event that neither the Depositor nor any successor thereto,
if any, is in existence, any amendment under this Section 10.07 shall be
effective with the consent of the Trustee, the Fiscal Agent, the Special
Servicer and the Servicer, in writing, and to the extent required by this
Section, the Certificateholders. Promptly after the execution of any amendment,
the Servicer shall forward to the Trustee and the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.07 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The method of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe; provided, however,
that such method shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no
amendment shall be made to this Agreement or any Custodial Agreement unless, if
requested by the Servicer and/or the Trustee, the Servicer and the Trustee shall
have received an Opinion of Counsel, at the expense of the party requesting such
amendment (or, if such amendment is required by either Rating Agency to maintain
the rating issued by it or requested by the Trustee for any purpose described in
clause (i) or (ii) of the first sentence of this Section, then at the expense of
the Trust Fund), to the effect that such amendment will not cause the Upper-Tier
REMIC, Lower-Tier REMIC or any Loan REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding, cause a tax to be imposed on the
Trust Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property) or cause the portion
of the Trust Fund exclusive of the Trust REMICs and the Loan REMICs to fail to
qualify as a grantor trust.
Prior to the execution of any amendment to this Agreement or any
Custodial Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the
Servicer may request and shall be entitled to rely conclusively upon an Opinion
of Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by either Rating Agency to maintain the rating issued by
it or requested by the Trustee for any purpose described in clause (i), (ii),
(iii) or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
Section 10.08 Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance
of the Trust Fund (including the Mortgage Loans) by the Depositor to the Trustee
on behalf of Certificateholders as contemplated by this Agreement and the sale
by the Depositor of the Certificates be, and be treated for all purposes as, a
sale by the Depositor of the undivided portion of the beneficial interest in the
Trust Fund represented by the Certificates. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Trust Fund by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the intent of the parties, the Trust
Fund is held to continue to be property of the Depositor then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Trust Fund provided for herein shall be deemed to be a grant by
the Depositor to the Trustee on behalf of Certificateholders of a first priority
security interest in all of the Depositor's right, title and interest in and to
the Trust Fund and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, the Distribution Account, Upper-Tier
Distribution Account, Excess Interest Distribution Account and Repurchase Price
Return of Premium Distribution Account whether in the form of cash, instruments,
securities or other property; (c) the possession by the Trustee (or the
Custodian on its behalf) of Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the Delaware and Illinois Uniform
Commercial Code; and (d) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Trustee pursuant to any provision hereof shall
also be deemed to be an assignment of any security interest created hereby. The
Depositor shall, and upon the request of the Servicer, the Trustee shall, to the
extent consistent with this Agreement (and at the expense of the Trust Fund),
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement. It is the intent of the parties that such a security interest would
be effective whether any of the Certificates are sold, pledged or assigned.
Section 10.09 [Reserved]
Section 10.10 Intended Third-Party Beneficiaries.
Goldman, Sachs & Co. and Nomura Securities International, Inc. are
intended to be third-party beneficiaries hereunder. No other Person other than a
party to this Agreement and any Certificateholder shall have any rights with
respect to the enforcement of any of the rights or obligations hereunder.
Without limiting the foregoing, the parties to this Agreement specifically state
that no Borrower, property manager or other party to a Mortgage Loan is an
intended third-party beneficiary of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the day
and year first above written.
Signed and acknowledged ASSET SECURITIZATION
in the presence of CORPORATION,
as Depositor
- ------------------------------
Print Name:
By:
- ------------------------------ ------------------------------
Print Name: Name:
Title:
Signed and acknowledged BNY ASSET SOLUTIONS LLC,
in the presence of as Servicer
- ------------------------------
Print Name:
- ------------------------------ By:
Print Name: ------------------------------
Name:
Title:
<PAGE>
Signed and acknowledged LENNAR PARTNERS, INC.,
in the presence of as Special Servicer
- -----------------------------
Print Name:
- ----------------------------- By:
Print Name: -----------------------------
Name:
Title:
Signed and acknowledged LASALLE BANK NATIONAL
in the presence of ASSOCIATION,
as Trustee, Custodian, Certificate
- ----------------------------- Registrar and Paying Agent
Print Name:
- -----------------------------
Print Name: By:
------------------------------
Name:
Title:
Signed and acknowledged ABN AMRO BANK N.V.,
in the presence of as Fiscal Agent
- -----------------------------
Print Name:
By:
-----------------------------
- ----------------------------- Name:
Print Name: Title:
Signed and acknowledged
in the presence of By:
-----------------------------
Name:
- ----------------------------- Title:
Print Name:
- -----------------------------
Print Name:
ACCEPTED AND AGREED TO SOLELY
WITH RESPECT TO SECTION 3.28(c):
THE CAPITAL COMPANY OF AMERICA LLC,
a Delaware limited liability company
By:
---------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _____ day of _______________, 1999, before me, the
undersigned, a Notary Public in and for the State of New York, duly commissioned
and sworn, personally appeared _____________ , to me known who, by me duly
sworn, did depose and acknowledge before me and say that she resides at Two
World Financial Center, New York, New York; that s/he is the _____________ of
ASSET SECURITIZATION CORPORATION, a Delaware corporation, the corporation
described in and that executed the foregoing instrument; and that s/he signed
her/his name thereto under authority of the board of directors of said
corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
---------------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------------------
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF __________ )
) ss.:
COUNTY OF ________ )
On this ____ day of ____________, 1999, before me, the undersigned,
a Notary Public in and for the State of __________, duly commissioned and sworn,
personally appeared _____________________, to me known who, by me duly sworn,
did depose and acknowledge before me and say that s/he resides at
__________________________________; that s/he is the _____________________ of
BNY ASSET SOLUTIONS LLC, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
---------------------------------------
NOTARY PUBLIC in and for the
State of ____________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF __________ )
) ss.:
COUNTY OF ________ )
On this ____ day of __________, 1999, before me, the undersigned, a
Notary Public in and for the State of _______, duly commissioned and sworn,
personally appeared Ronald E. Schrager, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he resides at
__________________________________________ ; that he is the Vice President of
LENNAR PARTNERS, INC., the company described in and that executed the foregoing
instrument; and that he/she signed his/her name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
---------------------------------------
NOTARY PUBLIC in and for the
State of ____________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF __________ )
On this ____ day of _________, 1999, before me, the undersigned, a
Notary Public in and for the State of ________, duly commissioned and sworn,
personally appeared _____________________, to me known who, by me duly sworn,
did depose and acknowledge before me and say that s/he resides at
___________________________; that s/he is a ________________ of LASALLE BANK
NATIONAL ASSOCIATION, a nationally chartered bank, the corporation described in
and that executed the foregoing instrument; and that he/her signed his/her name
thereto under authority of the board of directors of said corporation and on
behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
---------------------------------------
NOTARY PUBLIC in and for the
State of ____________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF __________ )
On this ____ day of __________, 1999, before me, the undersigned, a
Notary Public in and for the State of __________________, duly commissioned and
sworn, personally appeared ___________________, to me known who, by me duly
sworn, did depose and acknowledge before me and say that s/he resides at
______________________________; that s/he is a _____________ of ABN AMRO BANK
N.V., a nationally chartered bank, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
---------------------------------------
NOTARY PUBLIC in and for the
State of ____________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF __________ )
On this ____ day of __________, 1999, before me, the undersigned, a
Notary Public in and for the State of New York, duly commissioned and sworn,
personally appeared Brad Altberger, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he resides at Two World Financial
Center; that he is a Director of The Capital Company of America LLC, a Delaware
limited liability company, the company described in and that executed the
foregoing instrument; and that he signed his name thereto under authority of the
board of members of said company and on behalf of such company.
WITNESS my hand and seal hereto affixed the day and year first above
written.
---------------------------------------
NOTARY PUBLIC in and for the
State of ____________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF __________ )
) ss.:
COUNTY OF ________ )
On this ____ day of ____________, 1999, before me, the undersigned,
a Notary Public in and for the State of __________, duly commissioned and sworn,
personally appeared _____________________, to me known who, by me duly sworn,
did depose and acknowledge before me and say that s/he resides at
__________________________________; that s/he is the _____________________ of
BNY ASSET SOLUTIONS LLC, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
---------------------------------------
NOTARY PUBLIC in and for the
State of ____________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
EXHIBIT A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2 CLASS A-1
Pass-Through Rate: 7.285%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class A-1 Certificates: [____________]
$[__________]
CUSIP: [_________] ISIN: [_______]
Common Code: ____________ Initial Certificate
Balance of this Certificate:
$[___________]
No.: A-1-[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily properties and held in trust by the Trustee
and serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans
are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are Class A-2, Class A-3, Class CS-1, Class X, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the
Class A-1 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class A-1 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-1 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Special Servicer nor the Depositor
exercises the option, the Servicer and, if the Depositor, the Special Servicer
or the Servicer do not exercise their respective option, the Holders of the
Class LR Certificates representing greater than a 50% Percentage Interest in
such Class may effect an early termination of the Trust Fund, upon not less than
30 days' prior Notice of Termination given to the Trustee and Servicer any time
on or after the Early Termination Notice Date (defined as any date as of which
the aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date) specifying the Anticipated Termination Date, on any Distribution
Date on which the aggregate Stated Principal Balance of the Mortgage Loans
remaining in the Trust Fund is less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and REO Property then included
in the Trust Fund, and all property acquired in respect of any Mortgage Loan, at
a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1
Certificate to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-1 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
A-1 Certificate of the entire Percentage Interest represented by the within
Class A-1 Certificates to the above-named Assignee(s) and to deliver such Class
A-1 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By
---------------------------------------------:
---------------------------------------------
[Please print or type name(s)]
---------------------------------------------
Title
---------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS A-2
Pass-Through Rate:7.546%(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class A-2 Certificates: [___________]
$[____________]
CUSIP: [__________] ISIN: [____________]
Common Code: ______________ Initial Certificate
Balance of this Certificate:
$[____________]
No.: A-2-[___]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-2 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-3, Class CS-1, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class A-2 Certificates, the "Certificates"; the Holders of Certificates
issued under the Pooling and Servicing Agreement are collectively referred to
herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class A-2 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-2 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon conformation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate will equal the lesser of (x) the per annum rate set
forth above and (y) the Weighted Average Net Mortgage Pass-Through Rate
for the related Distribution Date.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-2
Certificate to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-2 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
A-2 Certificate of the entire Percentage Interest represented by the within
Class A-2 Certificates to the above-named Assignee(s) and to deliver such Class
A-2 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by _________________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS A-3
Pass-Through Rate: 7.737%(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class A-3 Certificates: [____________]
$[______________]
CUSIP: [_____________] ISIN: [_________]
Common Code: ____________ Initial Certificate
Balance of this Certificate:
$[_____________]
No.: A-3-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-3 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class CS-1, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class A-3 Certificates, the "Certificates"; the Holders of Certificates
issued under the Pooling and Servicing Agreement are collectively referred to
herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class A-3 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-3 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of then-current ratings assigned to the Certificate or (vi) to make
any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Special Servicer nor the Depositor
exercises the option, the Servicer and, if the Depositor, the Special Servicer
or the Servicer do not exercise their respective option, the Holders of the
Class LR Certificates representing greater than a 50% Percentage Interest in
such Class may effect an early termination of the Trust Fund, upon not less than
30 days' prior Notice of Termination given to the Trustee and Servicer any time
on or after the Early Termination Notice Date (defined as any date as of which
the aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date) specifying the Anticipated Termination Date, on any Distribution
Date on which the aggregate Stated Principal Balance of the Mortgage Loans
remaining in the Trust Fund is less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and REO Property then included
in the Trust Fund, and all property acquired in respect of any Mortgage Loan, at
a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent Appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate will equal the lesser of (x) the per annum rate set
forth above and (y) the Weighted Average Net Mortgage Pass-Through Rate
for the related Distribution Date.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-3
Certificate to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-3 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
A-3 Certificate of the entire Percentage Interest represented by the within
Class A-3 Certificates to the above-named Assignee(s) and to deliver such Class
A-3 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by _______________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-4
CS-1
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AT AN ISSUE PRICE OF 1.57545% OF
ITS INITIAL NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION
PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS EXPECTED TO BE RECEIVED
HEREON, AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME
TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED
CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD LOAN WILL PREPAY
ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE LOAN WILL NOT
PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL NOTIONAL AMOUNT OF
THIS CERTIFICATE IS APPROXIMATELY 0.39085247%; (II) THE ANNUAL YIELD TO MATURITY
OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 12.34%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 28, 1999 TO
NOVEMBER 17, 1999) AS A PERCENTAGE OF THE INITIAL NOTIONAL AMOUNT OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.01023797%.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS CS-1
Pass-Through Rate:(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Notional Balance of the Distribution Date:
Class CS-1 Certificates: [____________]
$[______________]
CUSIP: [____________] Initial Notional
Balance of this Certificate:
ISIN: [_______________] $[__________]
No.: CS-1-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class CS-1 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are Class A-1, Class A-2, Class A-3, Class X, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the
CS-1 Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class CS-1 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement. The Class CS-1
Certificateholders will also be entitled to receive that portion of any
Repurchase Price constituting clause (v) of the definition thereof as set forth
in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class CS-1 Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Notional Balance. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e) of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate is for the Distribution Date occurring in November
1999. The Pass Through Rate for all subsequent distributions Dates shall
be calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class CS-1
Certificate to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class CS-1 Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class CS-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
CS-1 Certificate of the entire Percentage Interest represented by the within
Class CS-1 Certificates to the above-named Assignee(s) and to deliver such Class
CS-1 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by _______________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-5
CLASS X
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AT AN ISSUE PRICE OF 3.38879% OF
ITS INITIAL NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION
PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS EXPECTED TO BE RECEIVED
HEREON, AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME
TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED
CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD LOAN WILL PREPAY
ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE LOAN WILL NOT
PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL NOTIONAL AMOUNT OF
THIS CERTIFICATE IS APPROXIMATELY 3.09987357%; (II) THE ANNUAL YIELD TO MATURITY
OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 11.12%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 28, 1999 TO
NOVEMBER 17, 1999) AS A PERCENTAGE OF THE INITIAL NOTIONAL AMOUNT OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.01023797%.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS X
Pass-Through Rate:(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Notional Balance of the Distribution Date:
Class X Certificates: [________]
$[______________]
CUSIP: [_________] Initial Notional
Balance of this Certificate:
ISIN: [___________] $[________]
No.: X-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class X Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are Class A-1, Class A-2, Class A-3, Class CS-1, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the X Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class X Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement. The Class X
Certificateholders will also be entitled to receive that portion of any
Repurchase Price constituting clause (v) of the definition thereof as set forth
in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class X Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Notional Balance. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e) of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate is for the Distribution Date occurring in November
1999. The Pass Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class X Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class X Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By
----------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class X Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
X Certificate of the entire Percentage Interest represented by the within Class
X Certificates to the above-named Assignee(s) and to deliver such Class X
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by _________________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS B CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS B
Pass-Through Rate: 7.800%(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class B Certificates: [___________]
$[____________]
CUSIP: [___________] ISIN: [___________]
Common Code: _____________ Initial Certificate
Balance of this Certificate:
$[______________]
No.: B-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class B Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class B Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement
During each Interest Accrual Period (as defined below), interest on
the Class B Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer. The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or
(vi) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Special Servicer nor the Depositor
exercises the option, the Servicer and, if the Depositor, the Special Servicer
or the Servicer do not exercise their respective option, the Holders of the
Class LR Certificates representing greater than a 50% Percentage Interest in
such Class may effect an early termination of the Trust Fund, upon not less than
30 days' prior Notice of Termination given to the Trustee and Servicer any time
on or after the Early Termination Notice Date (defined as any date as of which
the aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date) specifying the Anticipated Termination Date, on any Distribution
Date on which the aggregate Stated Principal Balance of the Mortgage Loans
remaining in the Trust Fund is less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and REO Property then included
in the Trust Fund, and all property acquired in respect of any Mortgage Loan, at
a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate will equal the lesser of (x) the per annum rate for
the above and (y) the Weighted Average Net Mortgage Pass-Through Rate for
the related Distribution Date.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class B Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
B Certificate of the entire Percentage Interest represented by the within Class
B Certificates to the above-named Assignee(s) and to deliver such Class B
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by _________________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-7
CLASS C
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
96.11261%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 4.12572000%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.31%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO NOVEMBER 17, 1999) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.00920164%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS C CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS C
Pass-Through Rate: 7.800%(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class C Certificates: [_____________]
$[_______________]
CUSIP: [_____________] ISIN: [___________]
Common Code: _____________ Initial Certificate
Balance of this Certificate:
$[________________]
No.: C-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class C Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class C Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class C Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class C Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Special Servicer nor the Depositor
exercises the option, the Servicer and, if the Depositor, the Special Servicer
or the Servicer do not exercise their respective option, the Holders of the
Class LR Certificates representing greater than a 50% Percentage Interest in
such Class may effect an early termination of the Trust Fund, upon not less than
30 days' prior Notice of Termination given to the Trustee and Servicer any time
on or after the Early Termination Notice Date (defined as any date as of which
the aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date) specifying the Anticipated Termination Date, on any Distribution
Date on which the aggregate Stated Principal Balance of the Mortgage Loans
remaining in the Trust Fund is less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and REO Property then included
in the Trust Fund, and all property acquired in respect of any Mortgage Loan, at
a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate will equal the lesser of (x) the per annum rate for
the above and (y) the Weighted Average Net Mortgage Pass-Through Rate for
the related Distribution Date.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class C Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class C Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class C Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
C Certificate of the entire Percentage Interest represented by the within Class
C Certificates to the above-named Assignee(s) and to deliver such Class C
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by _______________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-8
CLASS D
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
94.49503%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 5.74329996%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.50%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO NOVEMBER 17, 1999) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.01187992%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS D CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS D
Pass-Through Rate: 7.800%(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class D Certificates: [___________]
$[______________]
CUSIP: [__________] ISIN: [____________]
Common Code: ___________ Initial Certificate
Balance of this Certificate:
$[________________]
No.: D-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class D Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class D Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class D Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class D Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate will equal the lesser of (x) the per annum rate for
the above and (y) the Weighted Average Net Mortgage Pass-Through Rate for
the related Distribution Date.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class D Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class D Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class D Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
D Certificate of the entire Percentage Interest represented by the within Class
D Certificates to the above-named Assignee(s) and to deliver such Class D
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-9
CLASS E
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
87.71098%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 12.52246667%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 9.23%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO NOVEMBER 17, 1999) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.02337094%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS E CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS E
Pass-Through Rate: 7.640%(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class E Certificates: [___________]
$[________________]
CUSIP: [____________] ISIN: [__________]
Common Code: ____________ Initial Certificate
Balance of this Certificate:
$[___________]
No.: E-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class E Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class E Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class E Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class E Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer. The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holder of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate will equal the lesser of (x) the per annum rate set
forth above and (y) the Weighted Average Net Mortgage Pass-Through Rate
for the related Distribution Date.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class E Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class E Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class E Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
E Certificate of the entire Percentage Interest represented by the within Class
E Certificates to the above-named Assignee(s) and to deliver such Class E
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-10
CLASS F
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
81.12473%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 19.10871665%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 10.41%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO NOVEMBER 17, 1999) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.03236620%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS F
Pass-Through Rate: 7.640%(1)
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class F Certificates: [_____________]
$[______________]
CUSIP: [____________] ISIN: [___________]
Common Code: _____________ Initial Certificate
Balance of this Certificate:
$[_______________]
No.: F-[___]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class F Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class F Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class F Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class F Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer. The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
- -----------------------
(1) The Pass-Through Rate will equal the lesser of (x) the per annum rate set
forth above and (y) the Weighted Average Net Mortgage Pass-Through Rate
for the related Distribution Date.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class F Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class F Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class F Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
F Certificate of the entire Percentage Interest represented by the within Class
F Certificates to the above-named Assignee(s) and to deliver such Class F
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ______________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-11
OID RIDER FOR THE CLASS G CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE,
AND CERTAIN OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS G
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class G Certificates: [______________]
$[____________]
CUSIP: [__________] Initial Certificate
CUSIP IAI: [__________] Balance of this Certificate:
$[_______________]
ISIN: [_______________]
ISIN IAI: [___________]
No.: G-[___]
This certifies that Cede is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class G Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class H, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class G Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class G Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class G Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class G Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class G Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class G Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
G Certificate of the entire Percentage Interest represented by the within Class
G Certificates to the above-named Assignee(s) and to deliver such Class G
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ___________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-12
OID RIDER FOR THE CLASS H CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
THIS CLASS H CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS H
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class H Certificates: [_______]
$[____________]
CUSIP: [_________] Initial Certificate
CUSIP IAI: [__________]
ISIN: [__________] Balance of this Certificate:
ISIN IAI: [___________] $[__________]
No.: H-[___]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class H Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class J, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class H Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class H Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class H Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class H Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class H Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class H Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
H Certificate of the entire Percentage Interest represented by the within Class
H Certificates to the above-named Assignee(s) and to deliver such Class H
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-13
OID RIDER FOR THE CLASS J CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
THIS CLASS J CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS J
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class J Certificates: [___________]
$[____________]
CUSIP: [_________] Initial Certificate
CUSIP IAI: [_________] Balance of this Certificate:
$[___________]
ISIN: [____________]
ISIN IAI: [____________]
No.: J-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class J Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class K, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class J Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class J Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class J Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class J Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class J Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class J Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
J Certificate of the entire Percentage Interest represented by the within Class
J Certificates to the above-named Assignee(s) and to deliver such Class J
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-14
OID RIDER FOR THE CLASS K CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
THIS CLASS K CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS K
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class K Certificates: [__________]
$[___________]
CUSIP: [__________] Initial Certificate
CUSIP IAI: [___________] Balance of this Certificate:
$[____________]
ISIN: [___________]
ISIN IAI: [____________]
No.: K-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class K Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class L, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class K Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class K Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class K Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class K Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class K Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class K Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
K Certificate of the entire Percentage Interest represented by the within Class
K Certificates to the above-named Assignee(s) and to deliver such Class K
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-15
OID RIDER FOR THE CLASS L CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
THIS CLASS L CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS L
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class L Certificates: [___________]
$[____________]
CUSIP: [___________] Initial Certificate
CUSIP IAI: [__________] Balance of this Certificate:
$[___________]
ISIN: [____________]
ISIN IAI: [___________]
No.: L-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class L Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class M,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class L Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class L Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class L Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class L Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class L Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class L Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
L Certificate of the entire Percentage Interest represented by the within Class
L Certificates to the above-named Assignee(s) and to deliver such Class L
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-16
OID RIDER FOR THE CLASS M CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
THIS CLASS M CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS M
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class M Certificates: [___________]
$[____________]
CUSIP: [___________] Initial Certificate
CUSIP IAI: [___________] Balance of this Certificate:
$[__________]
ISIN: [____________]
ISIN IAI: [____________]
No.: M-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class M Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class N, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class M Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class M Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class M Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class M Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class M Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class M Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
M Certificate of the entire Percentage Interest represented by the within Class
M Certificates to the above-named Assignee(s) and to deliver such Class M
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-17
OID RIDER FOR THE CLASS N CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
THIS CLASS N CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS N
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class L Certificates: [___________]
$[_______________]
CUSIP: [____________] Initial Certificate
CUSIP IAI: [_________] Balance of this Certificate:
$[____________]
ISIN: [_____________]
ISIN IAI: [____________]
No.: N-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class N Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class Q-1, Class Q-2, Class R and Class LR Certificates (together with
the Class N Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class N Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class N Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions in such agreements
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
reallocate any responsibilities or rights as between the Servicer and Special
Servicer, upon confirmation in writing from each Rating Agency that such
amendment or supplement will not result in a qualification, downgrade or
withdrawal of the then-current ratings assigned to the Certificates or (vi) to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement, which shall not be inconsistent with the
provisions of the Pooling and Servicing Agreement and will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class N Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class N Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
exchanged or transferred Remaining
for, or issued in exchange Principal
for or upon transfer of, an Amount of this
interest in this Global Global
Date Certificate Certificate Notation Made By
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
_____________ ___________________________ _______________ ___________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class N Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
N Certificate of the entire Percentage Interest represented by the within Class
N Certificates to the above-named Assignee(s) and to deliver such Class N
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-18
OID RIDER FOR THE CLASS Q-1 CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
THIS CLASS Q-1 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, Class Q-1
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class Q-1 Certificates: [__________]
$[_________________]
CUSIP: [__________] Initial Certificate
CUSIP IAI: [__________] Balance of this Certificate:
$[_____________]
ISIN: [___________]
ISIN IAI: [____________]
No.: Q-1-[__]
This certifies that Cede Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class Q-1 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial and multifamily properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class Q-2, Class R and Class LR Certificates (together with
the Class Q-1 Certificates, the "Certificates"; the Holders of Certificates
issued under the Pooling and Servicing Agreement are collectively referred to
herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class Q-1 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class Q-1 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, (v) to amend or supplement any provision of the Pooling and
Servicing Agreement to the extent necessary to reallocate any responsibilities
or rights as between the Servicer and Special Servicer, upon confirmation in
writing from each Rating Agency that such amendment or supplement will not
result in a qualification, downgrade or withdrawal of the then-current ratings
assigned to the Certificates or (vi) to make any other provisions with respect
to matters or questions arising under the Pooling and Servicing Agreement, which
shall not be inconsistent with the provisions of the Pooling and Servicing
Agreement and will not result in a downgrade, qualification or withdrawal of the
then-current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class Q-1
Certificate to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class Q-1 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Authenticating
Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class Q-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
Q-1 Certificate of the entire Percentage Interest represented by the within
Class Q-1 Certificates to the above-named Assignee(s) and to deliver such Class
Q-1 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-19
OID RIDER FOR THE CLASS Q-2 CERTIFICATES
THIS CERTIFICATE IS ISSUED ON OCTOBER 28, 1999, AND BASED ON ITS ISSUE PRICE OF
[_____________]%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 8 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HERON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY [_____________]%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [_____]%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (OCTOBER 28, 1999 TO [NOVEMBER 17, 1999]) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY [_____________]%.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CLASS Q-2 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY AND
TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT PROHIBITED TRANSACTIONS
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW BY REASON OF THE
APPLICATION OF SECTIONS I AND III OF PROHIBITED TRANSACTION EXEMPTION 95-60.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE
REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (II) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, TO PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE, THE FISCAL AGENT OR
THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY AND TRANSACTIONS IN CONNECTION WITH THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST FUND WOULD NOT CONSTITUTE OR RESULT IN NON-EXEMPT
PROHIBITED TRANSACTIONS WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW BY REASON OF THE APPLICATION OF SECTIONS I AND III OF PROHIBITED
TRANSACTION EXEMPTION 95-60.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS Q-2
Pass-Through Rate: 6.00%
First Distribution Date: Cut-off Date: October 11, 1999
November 17, 1999
Aggregate Initial Assumed Final
Certificate Balance of the Distribution Date:
Class Q-2 Certificates: [___________]
$[-------]
CUSIP: [__________] Initial Certificate
CUSIP IAI: [___________] Balance of this Certificate:
$[--------]
ISIN: [___________]
ISIN IAI: [____________]
No.: Q-2-[__]
This certifies that [____________] is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class Q-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily properties and held in trust by the Trustee
and serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans
are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-2, Class A-3, Class CS-1, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class Q-1, Class R and Class LR Certificates (together with
the Class Q-2 Certificates, the "Certificates"; the Holders of Certificates
issued under the Pooling and Servicing Agreement are collectively referred to
herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the seventeenth day of each
month (each such date, a "Distribution Date"); provided, that if the seventeenth
day of any month is not a Business Day, the Distribution Date shall be the
following Business Day, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class Q-2 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums,
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class Q-2 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" with respect to any Distribution Date commences on and includes the
eleventh day of the month preceding the month in which such Distribution Date
occurs and ends on and includes the tenth day of the month in which such
Distribution Date occurs. Each Interest Accrual Period is assumed to consist of
30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, (v) to amend or supplement any provision of the Pooling and
Servicing Agreement to the extent necessary to reallocate any responsibilities
or rights as between the Servicer and Special Servicer, upon confirmation in
writing from each Rating Agency that such amendment or supplement will not
result in a qualification, downgrade or withdrawal of the then-current ratings
assigned to the Certificates or (vi) to make any other provisions with respect
to matters or questions arising under the Pooling and Servicing Agreement, which
shall not be inconsistent with the provisions of the Pooling and Servicing
Agreement and will not result in a downgrade, qualification or withdrawal of the
then-current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class Q-2
Certificate to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class Q-2 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Authenticating Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class Q-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
Q-2 Certificate of the entire Percentage Interest represented by the within
Class Q-2 Certificates to the above-named Assignee(s) and to deliver such Class
Q-2 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-20
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY
ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(L) OF THE
POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT
TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT
IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION
860(E)(E)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR
SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO
PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. IF THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-1(C), TRANSFERS OF THIS CERTIFICATE MAY BE
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY
SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR
MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
ANY ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR
LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE
TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED TO DELIVER A LETTER IN
THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY
LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS
NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS R
CUSIP: [___________] Percentage Interest: 100%
CUSIP IAI: [________]
ISIN: [__________]
ISIN IAI: [__________]
No.: R-[__]
This certifies that [___________] is the registered owner of the
Percentage Interest evidenced by this Certificate in the Trust Fund. The Class R
Certificateholder is not entitled to interest or principal distributions. The
Class R Certificateholder will be entitled to receive the proceeds of the
remaining assets of the Upper-Tier REMIC, if any, on the Final Scheduled
Distribution Date for the Certificates, after distributions in respect of any
accrued but unpaid interest on the Certificates and after distributions in
reduction of principal balance have reduced the principal balances of the
Certificates to zero. It is not anticipated that there will be any assets
remaining in the Upper-Tier REMIC or Trust Fund on the Final Scheduled
Distribution Date following the distributions on the Regular Certificates. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily properties and held
in trust by the Trustee and serviced by the Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3,
Class CS-1, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class Q-1, Class Q-2 and Class
LR Certificates (together with the Class R Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, (v) to amend or supplement any provision of the Pooling and
Servicing Agreement to the extent necessary to reallocate any responsibilities
or rights as between the Servicer and Special Servicer, upon confirmation in
writing from each Rating Agency that such amendment or supplement will not
result in a qualification, downgrade or withdrawal of the then-current ratings
assigned to the Certificates or (vi) to make any other provisions with respect
to matters or questions arising under the Pooling and Servicing Agreement, which
shall not be inconsistent with the provisions of the Pooling and Servicing
Agreement and will not result in a downgrade, qualification or withdrawal of the
then-current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class R Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Authenticating Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class R Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
R Certificate of the entire Percentage Interest represented by the within Class
R Certificates to the above-named Assignee(s) and to deliver such Class R
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-21
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "RESIDUAL
INTEREST" IN THREE SEPARATE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS. A
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET
FORTH IN SECTION 5.02(L) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE
REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT
THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH
TERM IS DEFINED IN CODE SECTION 860(E)(E)(5), OR AN AGENT (INCLUDING A BROKER,
NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE
A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME
DUE AND INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND
(C) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY
BECOME DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER
PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE
RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL
INTEREST", AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(C), TRANSFERS OF
THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND EACH OF
THE LOAN REMICS AND TO THE APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND
AGENT FOR THE TAX MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND
SERVICING AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR
PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
ANY ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR
LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE
TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED TO DELIVER A LETTER IN
THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY
LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS
NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C2, CLASS LR
CUSIP: [___________] Percentage Interest: 100%
CUSIP IAI: [_________]
ISIN: [_____________]
ISIN IAI: [___________]
No.: LR-[__]
This certifies that [______________] is the registered owner of the
Percentage Interest evidenced by this Certificate in the Trust Fund. The Class
LR Certificateholder is not entitled to interest or principal distributions. The
Class LR Certificateholder will be entitled to receive the proceeds of the
remaining assets of the Lower-Tier REMIC and the Loan REMICs, if any, on the
Final Scheduled Distribution Date for the Certificates, after distributions in
respect of any accrued but unpaid interest on the Certificates and after
distributions in reduction of principal balance have reduced the principal
balances of the Certificates to zero or, in the case of the Loan REMICs, on any
earlier Distribution Date on which the principal balance of the related Loan
REMIC Regular Interest has been reduced to zero. It is not anticipated that
there will be any assets remaining in the Lower-Tier REMIC, the Loan REMICs or
the Trust Fund on the Final Scheduled Distribution Date following the
distributions on the Regular Certificates. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class
CS-1, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class Q-1, Class Q-2 and Class R
Certificates (together with the Class LR Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1999 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, BNY Asset Solutions LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
This Certificate represents a "residual interest" in three "real
estate mortgage investment conduits," as those terms are defined, respectively,
in Sections 860G(a)(2) and 860D of the Code and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day. Such
distributions shall be made on each Distribution Date other than the Termination
Date to each Certificateholder of record on the related Record Date by check
mailed by first class mail to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder shall have provided the Paying
Agent with wire instructions in writing at least five Business Days prior to the
related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity located in the
United States and having appropriate facilities therefor. The final distribution
on each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent) that
is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
and Servicing Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account, the
Repurchase Price Return of Premium Distribution Account and the Interest Reserve
Account, including reinvestment income; (ix) each Loan REMIC Regular Interest
and Loan REMIC Residual Interest; (x) any environmental indemnity agreements
relating to the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and Bloomfield Purchase Agreement;
and (xii) the proceeds of any of the foregoing. As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions therein that may be defective or inconsistent with any other
provisions in such agreements, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, (v) to amend or supplement any provision of the Pooling and
Servicing Agreement to the extent necessary to reallocate any responsibilities
or rights as between the Servicer and Special Servicer, upon confirmation in
writing from each Rating Agency that such amendment or supplement will not
result in a qualification, downgrade or withdrawal of the then-current ratings
assigned to the Certificates or (vi) to make any other provisions with respect
to matters or questions arising under the Pooling and Servicing Agreement, which
shall not be inconsistent with the provisions of the Pooling and Servicing
Agreement and will not result in a downgrade, qualification or withdrawal of the
then-current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
each of the Classes of Regular Certificates representing not less than 66-2/3%
of the Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or Property
Advance without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as two separate
REMICs, of the Loan REMICs as two separate REMICs and the portion of the Trust
Fund exclusive of the Trust REMICs as a grantor trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option,
the Special Servicer and, if neither the Servicer nor the Depositor exercises
the option, the Servicer and, if the Depositor, Special Servicer or the Servicer
do not exercise their respective option, the Holders of the Class LR
Certificates representing greater than a 50% Percentage Interest in such Class
may effect an early termination of the Trust Fund, upon not less than 30 days'
prior Notice of Termination given to the Trustee and Servicer any time on or
after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) specifying the Anticipated Termination Date, on any Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans remaining in
the Trust Fund is less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans and REO Property then included in the Trust
Fund, and all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each
Mortgage Loan included in the Trust Fund as of the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus
the Excess Rate, to the extent applicable) to the last
day of the month preceding such Distribution Date (less
any P&I Advances previously made on account of
interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon and unpaid Trust Fund expenses;
(E) the Repurchase Price Return of Premium Amount; and
(ii) the aggregate fair market value of the Mortgage Loans and all
REO Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer, together
with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c)
of the Pooling and Servicing Agreement shall be borne by the party exercising
its purchase rights thereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer, the Special Servicer or the Holders of the Class
LR Certificates as described above; or (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund. In no event,
however, will the trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class LR Certificate
to be duly executed.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By:
---------------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class LR Certificates referred to in the Pooling
and Servicing Agreement.
Dated: October __, 1999.
LASALLE BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Authenticating Agent
By:
---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class LR Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
LR Certificate of the entire Percentage Interest represented by the within Class
LR Certificates to the above-named Assignee(s) and to deliver such Class LR
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________
------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ____________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
Exhibit B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
LOAN # ASSET # PROPERTY NAME BORROWER NAME
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 1 Westin Denver Hotel Westin Denver LLC
2 1 208 South Lasalle 215 E. 117th Street Corp.
- -----------------------------------------------------------------------------------------------------------------------------------
Accor-M-Six Limited Partnership
3 1 1078 M-Six Limited Partnership
3 2 1268 M-Six Limited Partnership
3 3 775 M-Six Limited Partnership
3 4 739 M-Six Limited Partnership
3 5 1040 M-Six Limited Partnership
3 6 253 M-Six Limited Partnership
3 7 245 M-Six Limited Partnership
3 8 700 M-Six Limited Partnership
3 9 1059 M-Six Limited Partnership
3 10 1254 M-Six Limited Partnership
3 11 1283 M-Six Limited Partnership
3 12 156 M-Six Limited Partnership
3 13 699 M-Six Limited Partnership
3 14 784 M-Six Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
4 1 Marina Pacifica Shopping Center Marina Pacifica LLC
5 1 Luckman Plaza The Luckman Management Co. LP
6 1 Henry W. Oliver Oliver Building L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Congressional North
7 1 Congressional North Plaza Congressional North Associates Limited Partnership
7 2 121 Congressional Lane Congressional North Associates Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
8 1 80 John Street WSA Equities, LLC
9 1 633 Indiana Avenue Indiana Associates L.P.
10 1 Bank of America-Vegas Bridger Associates
11 1 Bayside Exposition Center Bayside Expo Borrower
12 1 Warminster Towne Center Warminster Towne Center Associates, L.P.`
13 1 Shops at Park Place Shops at Park Place LLC
14 1 Campbell Forum Campbell Forum Partners, Ltd.
15 1 Calaveras Center Calaveras Center, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Cinemark Pool B
16 1 Colorado Springs, CO - Tinseltown Pricino IX, LP
16 2 Mishawaka - Movies 10 Pricino IX, LP
- -----------------------------------------------------------------------------------------------------------------------------------
17 1 Mall of Orange H.M.A. Enterprises - Mall of Orange, LP
18 1 60 Madison Ave. M.Madison LLC
19 1 Geneva Crossing ECB, LLC
20 1 La Jolla Professional La Jolla Village Prof. Ctr. Assoc.
- -----------------------------------------------------------------------------------------------------------------------------------
Allied Portfolio
21 1 Park Shopping Center Allied/SSR Shopping Centers LLC
21 2 Miamisburg Plaza Allied/SSR Shopping Centers LLC
21 3 Page Manor Allied/SSR Shopping Centers LLC
21 4 Fairborn Plaza Allied/SSR Shopping Centers LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Auerbach Retail Portfolio
22 1 National & Sepulveda Center Auerbach Shopping Centers, LLC
22 2 Hacienda Valley Auerbach Shopping Centers, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
23 1 SL-Mentor II Facility Mentor Industrial Complex II, LP
24 1 Signature Place Apartments Signature Place - Overland L.L.C.
25 1 Park Fletcher Park Fletcher Office Associates, L.P.
26 1 Staples Plaza Best/Newmark Associates L.L.C.
27 1 Euless Town Center Euless Shopping Center, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
28 1 Willow Creek Apartments Mooresville Apartments, LLC
29 1 Bayou Walk Shopping Center Bayou Shopping Center, Ltd.
30 1 Lakewood Center North Lakewood Operating Assoc., LP
31 1 Lakeside Office Park Quannapowitt 591 Limited Partnership,
Quannapowitt 595 limited partnership
32 1 Regal Cinema Medina Theatre Associates, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
33 1 East Town Mall Marlin Easttown L.L.C.
34 1 Spring Glen Medical Center Whitney Medical Center Limited Partnership
35 1 532 Broad Hollow Road 532 Realty Associates, LLC
36 1 Manassas Executive Center BGK Manassas Assoc., LP
- -----------------------------------------------------------------------------------------------------------------------------------
37 1 Circuit City-Philadelphia CC Philidelphia 98, LLC
38 1 Westbury Lake Apartments G & E Partnership
39 1 Northridge Shopping Center Hamstra North Ridge Center, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
100 Court & Liberty Building
40 1 Liberty Building Liberty Court Operating Associates, L.P.
40 2 100 Court Liberty Court Operating Associates, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
41 1 Northwood Village Northwood Village, LTD.
42 1 Stadium Apartments Stadium Apartments Limited Partnership
43 1 DeKalb Plaza Pine Tree Dekalb, LLC
44 1 Circuit City-Ridgeland CC Ridgeland 98, LLC
45 1 The Belgravia Building Lubert-Adler Belgravia Associates, LP
- -----------------------------------------------------------------------------------------------------------------------------------
46 1 Southwest Pointe Apartments Southwest Pointe, LLC
47 1 Short Pump Village Short Pump Village LLC &SP Center LLC
48 1 Circuit City-Indianapolis CC Indianapolis 98, LLC
49 1 Chestnut Gardens Arlen Development, LLC
50 1 Treehouse Apartments EIP V Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
51 1 Bayshore Village Apartments Bayshore Village Apartments LLC.
52 1 Cobleskill Center New Cobleskill Associates L.P.
53 1 Sports Park Plaza Woodoak Investments LC
54 1 Cedar Grove Mobile Home Park Copperas Cove MHC, L.L.C.
55 1 Circuit City-Jackson,TN CC Jackson 98, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
56 1 Parham 64 Parham Road Operating Associates, L.P.
57 1 Circuit City-Kingsport CC Kingsport 98, LLC
58 1 Circuit City-Witchita Falls CC Wichita Falls 98, LLC
59 1 231-235 East 117th Street Noyo 117 Associates LLC
- -----------------------------------------------------------------------------------------------------------------------------------
60 1 Willow Creek Manor WCM Apartments
61 1 312 East 106th Street 312 East 106th Street Real Estate LLC
62 1 234/236/238/240 East 116th Street 234 E. 116th Street LLC
63 1 Wayzata Bay Office Buildings J&A Real Estate LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Eastgate/Southgate Apartments
64 1 Eastgate JMW Gateco, LLC
64 2 South Gate Corners JMW Gateco, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
65 1 Schram Tech Park Schram Tech Park, LLC
66 1 215 East 117th Street 215 E. 117th Street Corp.
67 1 Ironbridge Plaza I.B. Ventures, LLC
68 1 Huffman Business Park Buildings A & B Huffman Buildings A&B, LLC
69 1 Flatiron Flatiron Building Operating Associates, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
70 1 Winterhaven East Apartments Winterhaven East, LLC,
71 1 Hidden Creek Apartments Maishe Properties Ltd.
72 1 Huffman Business Park Building M & N Huffman Buildings M & N, LLC
73 1 Sentry I Lubbock Park Operating Associates, LP
74 1 Gateway Office Plaza Empire Gateway Albuquerque Operating Associates
- -----------------------------------------------------------------------------------------------------------------------------------
75 1 228 East 116th Street 228 East 116th Street LLC
76 1 Greenway Shopping Center Greenway - Cooper Partners, L.P.
77 1 Huffman Business Park Building O Huffman Building O, LLC
78 1 2371 2nd Avenue 2371 2nd Avenue LLC
79 1 Huffman Business Park Building C Huffman Building C, LLC
80 1 154 East 106th Street 154 East 106th Street LLC
</TABLE>
<TABLE>
<CAPTION>
REVISED ANTICIPATED ORIGINAL
MONTHLY ANNUAL DEBT MORTGAGE MORTGAGE MATURITY REPAYMENT PRINCIPAL
LOAN # CITY STATE PAYMENT SERVICE RATE RATE DATE DATE BALANCE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 Denver CO $ 362,504 $4,350,046 8.505% 2.000% 11-Dec-23 11-Dec-13 $ 45,000,000
2 Chicago IL $ 332,187 $3,986,250 8.500% 2.000% 11-Apr-28 11-Apr-13 $ 1,485,000
- -----------------------------------------------------------------------------------------------------------------------------------
3 Danvers MA 7.030% n/a 01-May-18 $ 40,308,831
3 Villa Park IL 7.030% n/a 01-May-18 $ 40,308,831
3 Speedway IN 7.030% n/a 01-May-18 $ 40,308,831
3 Medford OR 7.030% n/a 01-May-18 $ 40,308,831
3 Glenview IL 7.030% n/a 01-May-18 $ 40,308,831
3 Grants Pass OR 7.030% n/a 01-May-18 $ 40,308,831
3 South Bend IN 7.030% n/a 01-May-18 $ 40,308,831
3 Chattanooga TN 7.030% n/a 01-May-18 $ 40,308,831
3 Chicopee MA 7.030% n/a 01-May-18 $ 40,308,831
3 Merrillville IN 7.030% n/a 01-May-18 $ 40,308,831
3 Washington PA 7.030% n/a 01-May-18 $ 40,308,831
3 Nashville TN 7.030% n/a 01-May-18 $ 40,308,831
3 Goodlettsville TN 7.030% n/a 01-May-18 $ 40,308,831
3 Rolling Meadows IL 7.030% n/a 01-May-18 $ 40,308,831
------------
$ 236,143 $2,833,711 $ 40,308,831
- -----------------------------------------------------------------------------------------------------------------------------------
4 Long Beach CA $ 256,550 $ 3,078,601 8.317% 2.000% 11-Dec-28 11-Nov-10 $ 33,936,008
5 West Hollywood CA $ 247,450 $ 2,969,404 7.990% 2.000% 11-Oct-27 11-Oct-12 $ 33,755,456
6 Pittsburgh PA $ 259,037 $3,108,442 8.500% 2.000% 11-Jan-29 11-Jan-14 $ 33,688,681
- -----------------------------------------------------------------------------------------------------------------------------------
7 Rockville MD 7.840% 2.000% 11-Aug-26 11-Aug-08 $ 33,000,000
7 Rockville MD 7.840% 2.000% 11-Aug-26 11-Aug-08 $ 33,000,000
------------
$ 242,829 $2,913,953 $ 33,000,000
- -----------------------------------------------------------------------------------------------------------------------------------
8 New York NY $ 230,517 $ 2,766,209 7.342% 2.000% 11-Feb-29 11-Feb-09 $ 29,591,225
9 Washington DC $ 202,832 $ 2,433,980 7.040% 2.000% 11-Oct-25 11-Oct-09 $ 29,000,000
10 Las Vegas NV $ 204,177 $ 2,450,130 7.750% 2.000% 11-Sep-29 11-Sep-09 $ 28,500,000
11 Boston MA $ 161,186 $ 1,934,231 7.250% 2.000% 11-Jan-24 11-Jan-09 $ 22,300,000
12 Warminster Twnsp PA $ 158,924 $ 1,907,083 8.240% 2.000% 11-Feb-28 11-Feb-10 $ 20,884,905
13 Irvine CA $ 151,803 $ 1,821,633 8.360% 2.000% 11-Jun-27 11-Jun-07 $ 20,000,000
14 Richardson TX $ 152,960 $ 1,835,518 8.500% 2.000% 11-Jan-28 11-Jan-08 $ 19,892,981
15 Milpitas CA $ 140,731 $1,688,770 7.880% 2.000% 11-Oct-29 11-Oct-09 $ 19,400,000
- -----------------------------------------------------------------------------------------------------------------------------------
16 Colorado Springs CO 8.049% n/a 11-Mar-18 $ 18,355,354
16 Mishawaka IN 8.049% n/a 11-Mar-18 $ 18,355,354
------------
$ 123,119 $1,477,423 $ 18,355,354
- -----------------------------------------------------------------------------------------------------------------------------------
17 Orange CA $ 125,303 $ 1,503,630 8.780% 2.000% 11-Sep-26 11-Apr-09 $ 15,500,000
18 New York NY $ 103,249 $ 1,238,983 8.500% 2.000% 11-Dec-27 11-Dec-07 $ 13,427,854
19 Carol Stream IL $ 102,499 $ 1,229,988 8.500% 2.000% 11-Jul-28 11-Jul-13 $ 13,331,171
20 La Jolla CA $ 100,591 $1,207,097 8.450% 2.000% 11-Apr-26 11-Apr-09 $ 13,142,801
- -----------------------------------------------------------------------------------------------------------------------------------
21 Springfield OH 8.850% 2.000% 11-Apr-28 11-Apr-13 $ 13,204,582
21 Miamisburg OH 8.850% 2.000% 11-Apr-28 11-Apr-13 $ 13,204,582
21 Dayton OH 8.850% 2.000% 11-Apr-28 11-Apr-13 $ 13,204,582
21 Fairborn OH 8.850% 2.000% 11-Apr-28 11-Apr-13 $ 13,204,582
------------
$ 104,825 $1,257,900 $ 13,204,582
- -----------------------------------------------------------------------------------------------------------------------------------
22 Los Angeles CA 7.550% 2.000% 11-Oct-29 11-Feb-14 $ 12,325,000
22 Industry CA 7.550% 2.000% 11-Oct-29 11-Feb-14 $ 12,325,000
------------
$ 86,601 $1,039,207 $ 12,325,000
- -----------------------------------------------------------------------------------------------------------------------------------
23 Mentor OH $ 75,510 $ 906,117 7.214% 2.000% 11-Sep-29 11-Sep-09 $ 11,100,000
24 Overland Park KS $ 73,865 $ 886,376 8.000% 2.000% 11-May-27 11-Jul-13 $ 10,066,531
25 Indianapolis IN $ 60,253 $ 723,031 7.230% 2.000% 11-Feb-29 11-Feb-09 $ 8,850,000
26 Yorktown Heights NY $ 61,902 $ 742,829 7.420% 2.000% 11-Jan-28 11-Apr-08 $ 8,802,706
27 Euless TX $ 59,561 $ 714,735 6.970% 2.000% 11-Oct-23 11-Jan-08 $ 8,450,000
- -----------------------------------------------------------------------------------------------------------------------------------
28 Mooresville NC $ 58,524 $ 702,284 7.900% 2.000% 11-Nov-27 11-Nov-07 $ 7,922,119
29 Shreveport LA $ 61,378 $ 736,540 8.500% 2.000% 11-Dec-27 11-Mar-13 $ 7,982,472
30 Lakewood OH $ 51,888 $ 622,651 7.392% 2.000% 11-Jun-29 11-Jun-09 $ 7,500,000
31 Wakefield MA $ 53,536 $ 642,431 7.110% 2.000% 11-Dec-23 11-Feb-09 $ 7,500,000
32 Medina OH $ 53,797 $ 645,565 8.090% 2.000% 11-Jun-26 11-Sep-19 $ 7,075,000
- -----------------------------------------------------------------------------------------------------------------------------------
33 Green Bay WI $ 51,411 $ 616,933 7.430% 2.000% 11-Mar-23 11-Jun-08 $ 7,000,000
34 Hamden CT $ 47,020 $ 564,237 7.820% 2.000% 11-Nov-27 11-Feb-09 $ 6,477,241
35 Melville NY $ 48,695 $ 584,344 8.220% 2.000% 11-Sep-27 11-Dec-07 $ 6,500,000
36 Manassas VA $ 48,320 $ 579,834 8.500% 2.000% 11-Sep-28 11-Sep-08 $ 6,284,132
- -----------------------------------------------------------------------------------------------------------------------------------
37 Philadelphia PA $ 37,064 $ 444,770 7.640% n/a 11-Jun-20 $ 5,821,598
38 Lansing MI $ 43,639 $ 523,672 7.320% 2.000% 11-Jan-23 11-Apr-13 $ 6,000,000
39 Hobart IN $ 43,054 $ 516,645 7.750% 2.000% 11-Nov-23 11-Jan-09 $ 5,700,000
- -----------------------------------------------------------------------------------------------------------------------------------
40 Des Moines IA 8.500% 2.000% 11-Sep-27 11-Sep-07 $ 5,519,873
40 Des Moines IA 8.500% 2.000% 11-Sep-27 11-Sep-07 $ 5,519,873
------------
$ 42,443 $ 509,317 $ 5,519,873
- -----------------------------------------------------------------------------------------------------------------------------------
41 Davenport IA $ 39,131 $ 469,578 7.640% 2.000% 11-Feb-25 11-May-13 $ 5,360,000
42 Ann Arbor MI $ 34,203 $ 410,434 7.460% 2.000% 11-Mar-28 11-Jun-14 $ 4,841,094
43 DeKalb IL $ 32,536 $ 390,431 7.600% 2.000% 11-Mar-28 11-Jun-08 $ 4,608,000
44 Ridgeland MS $ 26,474 $ 317,693 7.640% n/a 11-Jun-20 $ 4,158,283
45 Philadelphia PA $ 28,500 $ 341,997 7.350% 2.000% 11-Mar-29 11-Mar-09 $ 4,000,000
- -----------------------------------------------------------------------------------------------------------------------------------
46 Arleta CA $ 27,496 $ 329,957 7.300% 2.000% 11-Dec-27 11-Mar-08 $ 3,938,051
47 Richmond VA $ 27,739 $ 332,865 7.070% 2.000% 11-Apr-23 11-Jul-08 $ 3,900,000
48 Indianapolis IN $ 23,827 $ 285,924 7.640% n/a 11-Jun-20 $ 3,742,455
49 Suffern NY $ 23,126 $ 277,517 7.680% 2.000% 11-Oct-27 11-Jul-09 $ 3,250,000
50 Tampa FL $ 22,553 $ 270,630 7.910% 2.000% 11-Oct-29 11-Jan-10 $ 3,100,000
- -----------------------------------------------------------------------------------------------------------------------------------
51 New Baltimore MI $ 20,612 $ 247,345 7.050% 2.000% 11-Feb-28 11-Apr-14 $ 3,029,642
52 Cobbleskill NY $ 21,027 $ 252,325 7.440% 2.000% 11-May-28 11-Aug-08 $ 3,025,000
53 Salt Lake City UT $ 20,425 $ 245,095 7.230% 2.000% 11-Feb-28 11-May-08 $ 3,000,000
54 Copperas Cove TX $ 22,315 $ 267,780 7.670% 2.000% 11-Aug-22 11-Aug-07 $ 2,975,000
55 Jackson TN $ 17,473 $ 209,677 7.640% n/a 11-Jun-20 $ 2,744,467
- -----------------------------------------------------------------------------------------------------------------------------------
56 Richmond VA $ 17,340 $ 208,075 7.120% 2.000% 11-Nov-28 11-Nov-08 $ 2,575,000
57 Kingsport TN $ 15,885 $ 190,616 7.640% n/a 11-Jun-20 $ 2,494,969
58 Wichita Fallas TX $ 15,885 $ 190,616 7.640% n/a 11-Jun-20 $ 2,494,969
59 New York NY $ 17,030 $ 204,362 7.490% 2.000% 11-Jul-28 11-Apr-09 $ 2,438,000
- -----------------------------------------------------------------------------------------------------------------------------------
60 Alvin TX $ 16,048 $ 192,575 7.050% 2.000% 11-Sep-28 11-Dec-08 $ 2,400,000
61 New York NY $ 16,241 $ 194,890 7.490% 2.000% 11-Jul-28 11-Apr-09 $ 2,325,000
62 New York NY $ 15,647 $ 187,765 7.490% 2.000% 11-Jul-28 11-Apr-09 $ 2,240,000
63 Wayzata MN $ 14,885 $ 178,620 7.320% 2.000% 11-Feb-25 11-May-08 $ 2,100,000
- -----------------------------------------------------------------------------------------------------------------------------------
64 Newark OH 7.500% 2.000% 11-Dec-23 11-Feb-09 $ 1,935,000
64 Heath OH 7.500% 2.000% 11-Dec-23 11-Feb-09 $ 1,935,000
------------
$ 14,299 $ 171,594 $ 1,935,000
- -----------------------------------------------------------------------------------------------------------------------------------
65 Waterford MI $ 11,409 $ 136,906 7.640% 2.000% 11-Dec-23 11-Feb-09 $ 1,525,000
66 New York NY $ 332,187 $ 3,986,250 8.500% 2.000% 11-Apr-28 11-Apr-13 $ 1,485,000
67 Chesterfield VA $ 9,273 $ 111,277 6.900% 2.000% 11-Aug-28 11-Nov-08 $ 1,408,000
68 Anchorage AK $ 8,717 $ 104,600 6.780% 2.000% 11-Dec-28 11-Feb-14 $ 1,339,800
69 Omaha NE $ 8,754 $ 105,047 7.120% 2.000% 11-Nov-28 11-Nov-08 $ 1,300,000
- -----------------------------------------------------------------------------------------------------------------------------------
70 Tucson AZ $ 8,639 $ 103,663 6.980% 2.000% 11-Jan-28 11-Apr-08 $ 1,292,330
71 North Ridgeville OH $ 7,621 $ 91,452 6.750% 2.000% 11-Dec-28 11-Mar-14 $ 1,175,000
72 Anchorage AK $ 7,368 $ 88,416 6.780% 2.000% 11-Dec-28 11-Feb-14 $ 1,132,500
73 Lubbock TX $ 7,407 $ 88,886 7.120% 2.000% 11-Nov-28 11-Nov-08 $ 1,100,000
74 Albuquerque NM $ 7,341 $ 88,086 7.030% 2.000% 11-Oct-28 11-Oct-08 $ 1,100,000
- -----------------------------------------------------------------------------------------------------------------------------------
75 New York NY $ 7,684 $ 92,206 7.490% 2.000% 11-Jul-28 11-Apr-09 $ 1,100,000
76 Arlington TX $ 8,658 $ 103,899 8.230% 2.000% 11-Aug-22 11-Aug-07 $ 1,100,000
77 Anchorage AK $ 6,080 $ 72,965 6.780% 2.000% 11-Dec-28 11-Feb-14 $ 934,600
78 New York NY $ 5,449 $ 65,382 7.490% 2.000% 11-Jul-28 11-Apr-09 $ 780,000
79 Anchorage AK $ 4,572 $ 54,868 6.780% 2.000% 11-Dec-28 11-Feb-14 $ 702,800
80 New York NY $ 4,401 $ 52,809 7.490% 2.000% 11-Jul-28 11-Apr-09 $ 630,000
</TABLE>
<TABLE>
<CAPTION>
BALLOON
CUT-OFF DATE REMAINING RESIDUAL
PRINCIPAL REMAINING AMORTIZATION GROUND CREDIT CREDIT LOANS VALUE
LOAN # BALANCE ORIGINATOR ACTUAL 360 TERM TERM TERM LEASE (A) LEASE TENANT/GUARANTOR POLICY
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 $ 44,593,725 CCA TRUE 317 290 FALSE FALSE
2 $ 42,788,119 CCA TRUE 360 345 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
3 $ 5,167,799 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 3,912,762 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 3,838,936 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 3,765,111 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 3,543,633 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 3,322,156 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 2,657,725 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 2,288,597 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 2,214,771 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 2,067,120 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 1,993,294 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 1,919,468 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 1,845,642 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
3 $ 1,771,817 CCA FALSE 240 223 124 FALSE TRUE Accor TRUE
------------
$ 40,308,831
- -----------------------------------------------------------------------------------------------------------------------------------
4 $ 33,725,031 CCA TRUE 361 350 TRUE FALSE
5 $ 33,623,958 CCA TRUE 343 336 FALSE FALSE
6 $ 33,523,888 CCA TRUE 366 351 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
7 $ 27,568,582 CCA TRUE 343 322 FALSE FALSE
7 $ 5,078,423 CCA TRUE 343 322 FALSE FALSE
------------
$ 32,647,005
- -----------------------------------------------------------------------------------------------------------------------------------
8 $ 29,198,810 CCA TRUE 360 352 FALSE FALSE
9 $ 29,000,000 CCA TRUE 312 312 FALSE FALSE
10 $ 28,479,885 CCA TRUE 360 359 FALSE FALSE
11 $ 22,069,624 CCA TRUE 300 291 FALSE FALSE
12 $ 20,884,905 CCA TRUE 340 340 FALSE FALSE
13 $ 19,692,004 CCA TRUE 359 332 FALSE FALSE
14 $ 19,660,894 CCA TRUE 360 339 FALSE FALSE
15 $ 19,400,000 CCA TRUE 360 360 TRUE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
16 $ 12,014,406 CCA FALSE 240 221 95 FALSE TRUE Cinemark NAP
16 $ 6,340,948 CCA FALSE 240 221 95 FALSE TRUE Cinemark NAP
------------
$ 18,355,354
- -----------------------------------------------------------------------------------------------------------------------------------
17 $ 15,500,000 CCA TRUE 323 323 TRUE FALSE
18 $ 13,265,426 CCA TRUE 360 338 FALSE FALSE
19 $ 13,227,139 CCA TRUE 360 345 FALSE FALSE
20 $ 13,103,073 CCA TRUE 324 318 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
21 $ 8,296,076 CCA TRUE 360 342 FALSE FALSE
21 $ 1,934,752 CCA TRUE 360 342 FALSE FALSE
21 $ 1,342,907 CCA TRUE 360 342 FALSE FALSE
21 $ 1,276,660 CCA TRUE 360 342 FALSE FALSE
------------
$ 12,850,396
- -----------------------------------------------------------------------------------------------------------------------------------
22 $ 10,250,000 CCA TRUE 378 360 FALSE FALSE
22 $ 2,075,000 CCA TRUE 378 360 FALSE FALSE
------------
$ 12,325,000
- -----------------------------------------------------------------------------------------------------------------------------------
23 $ 11,100,000 CCA TRUE 359 359 FALSE FALSE
24 $ 9,976,778 CCA TRUE 346 331 FALSE FALSE
25 $ 8,796,886 CCA TRUE 370 352 FALSE FALSE
26 $ 8,776,196 CCA TRUE 343 339 FALSE FALSE
27 $ 8,328,519 CCA TRUE 300 288 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
28 $ 7,915,749 CCA TRUE 338 337 FALSE FALSE
29 $ 7,885,913 CCA TRUE 360 338 FALSE FALSE
30 $ 7,480,144 CCA TRUE 360 356 FALSE FALSE
31 $ 7,412,583 CCA TRUE 300 290 FALSE FALSE
32 $ 7,030,211 CCA TRUE 324 320 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
33 $ 6,851,529 CCA TRUE 300 281 FALSE FALSE
34 $ 6,415,759 CCA TRUE 351 337 FALSE FALSE
35 $ 6,402,648 CCA TRUE 360 335 FALSE FALSE
36 $ 6,240,164 CCA TRUE 360 347 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
37 $ 5,821,598 CCA FALSE 262 248 196 FALSE TRUE Circuit City TRUE
38 $ 5,762,708 CCA TRUE 300 279 FALSE FALSE
39 $ 5,533,666 CCA TRUE 300 289 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
40 $ 2,861,300 CCA TRUE 360 335 FALSE FALSE
40 $ 2,581,513 CCA TRUE 360 335 FALSE FALSE
------------
$ 5,442,813
- -----------------------------------------------------------------------------------------------------------------------------------
41 $ 5,261,826 CCA TRUE 324 304 FALSE FALSE
42 $ 4,836,987 CCA TRUE 342 341 FALSE FALSE
43 $ 4,549,820 CCA TRUE 360 341 FALSE FALSE
44 $ 4,158,283 CCA FALSE 262 248 196 FALSE TRUE Circuit City TRUE
45 $ 3,974,806 CCA TRUE 366 353 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
46 $ 3,938,051 CCA TRUE 338 338 FALSE FALSE
47 $ 3,751,913 CCA TRUE 300 282 FALSE FALSE
48 $ 3,742,455 CCA FALSE 262 248 196 FALSE TRUE Circuit City TRUE
49 $ 3,197,265 CCA TRUE 360 336 FALSE FALSE
50 $ 3,100,000 CCA TRUE 384 360 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
51 $ 3,029,642 CCA TRUE 340 340 FALSE FALSE
52 $ 2,989,654 CCA TRUE 360 343 FALSE FALSE
53 $ 2,954,581 CCA TRUE 360 340 FALSE FALSE
54 $ 2,889,455 Bloomfield TRUE 300 274 FALSE FALSE
55 $ 2,744,467 CCA FALSE 262 248 196 FALSE TRUE Circuit City TRUE
- -----------------------------------------------------------------------------------------------------------------------------------
56 $ 2,553,718 CCA TRUE 360 349 FALSE FALSE
57 $ 2,494,969 CCA FALSE 262 248 196 FALSE TRUE Circuit City TRUE
58 $ 2,494,969 CCA FALSE 262 248 196 FALSE TRUE Circuit City TRUE
59 $ 2,398,074 CCA TRUE 360 345 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
60 $ 2,376,178 CCA TRUE 360 347 FALSE FALSE
61 $ 2,286,925 CCA TRUE 360 345 FALSE FALSE
62 $ 2,203,317 CCA TRUE 360 345 FALSE FALSE
63 $ 2,059,091 CCA TRUE 324 304 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
64 $ 1,186,950 CCA TRUE 300 290 FALSE FALSE
64 $ 727,007 CCA TRUE 300 290 FALSE FALSE
------------
$ 1,913,956
- -----------------------------------------------------------------------------------------------------------------------------------
65 $ 1,498,458 CCA TRUE 300 290 FALSE FALSE
66 $ 1,460,681 CCA TRUE 360 345 FALSE FALSE
67 $ 1,392,565 CCA TRUE 360 346 FALSE FALSE
68 $ 1,329,064 CCA TRUE 360 350 FALSE FALSE
69 $ 1,289,256 CCA TRUE 360 349 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
70 $ 1,278,516 CCA TRUE 352 339 FALSE FALSE
71 $ 1,165,521 CCA TRUE 360 350 FALSE FALSE
72 $ 1,123,425 CCA TRUE 360 350 FALSE FALSE
73 $ 1,090,909 CCA TRUE 360 349 FALSE FALSE
74 $ 1,089,995 CCA TRUE 360 348 FALSE FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
75 $ 1,081,986 CCA TRUE 360 345 FALSE FALSE
76 $ 1,071,393 CCA TRUE 300 274 FALSE FALSE
77 $ 927,111 CCA TRUE 360 350 FALSE FALSE
78 $ 767,226 CCA TRUE 360 345 FALSE FALSE
79 $ 697,169 CCA TRUE 360 350 FALSE FALSE
80 $ 619,683 CCA TRUE 360 345 FALSE FALSE
</TABLE>
<TABLE>
<CAPTION>
BORROWER
PAYS
RATING
NET CASH CROSS SPLIT LOCK DUE PREMIUM ORIGINAL BASE AGENCY
LOAN # FLOW DSCR LTV DEFAULTED NOTE DEFEASANCE BOX DATE PROPERTY TYPE LOAN PREMIUM RATE FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 1.74 57.9% TRUE Hard 11th Hotel-Full Service FALSE
2 1.38 62.0% TRUE Hard 11th Office TRUE $ 2,597,812 7.785%
- -----------------------------------------------------------------------------------------------------------------------------------
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
3 1.00 90.5% TRUE TRUE Hard 1st Hotel-Ltd. Service FALSE
1.00 90.5%
- -----------------------------------------------------------------------------------------------------------------------------------
4 1.33 69.5% TRUE Hard 11th Retail-Anchored FALSE
5 1.29 65.9% TRUE Hard 11th Office FALSE
6 1.33 72.9% TRUE Hard 11th Office TRUE $ 2,911,319 7.490%
- -----------------------------------------------------------------------------------------------------------------------------------
7 1.22 72.5% TRUE TRUE Hard 11th Retail-Anchored FALSE
7 1.22 72.5% TRUE TRUE Hard 11th Office-Medical Office FALSE
1.22 72.5%
- -----------------------------------------------------------------------------------------------------------------------------------
8 1.27 72.3% TRUE Soft 11th Multifamily FALSE
9 1.53 75.3% TRUE Hard 11th Office FALSE
10 1.48 57.0% TRUE Hard 11th Office FALSE
11 1.43 61.3% TRUE Hard 11th Other-Convention FALSE
12 1.25 73.3% TRUE Hard 11th Retail-Anchored FALSE
13 1.33 65.6% TRUE Hard 11th Retail-Unanchored FALSE
14 1.21 69.0% TRUE No 11th Office TRUE $ 1,107,019 7.680%
15 1.28 59.7% TRUE Hard 11th Industrial FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
16 1.00 96.6% TRUE TRUE Hard 11th Movie Theatre FALSE
16 1.00 96.6% TRUE TRUE Hard 11th Movie Theatre FALSE
1.00 96.6%
- -----------------------------------------------------------------------------------------------------------------------------------
17 1.25 41.9% TRUE Hard 11th Retail-Anchored FALSE
18 1.22 58.4% TRUE No 11th Office TRUE $ 672,146 7.760%
19 1.18 77.8% TRUE Hard 11th Retail-Anchored TRUE $ 1,188,829 7.460%
20 1.16 59.0% TRUE Hard 11th Office TRUE $ 957,199 7.390%
- -----------------------------------------------------------------------------------------------------------------------------------
21 1.24 55.4% TRUE TRUE Hard 11th Retail-Anchored FALSE
21 1.24 55.4% TRUE TRUE Hard 11th Retail-Anchored FALSE
21 1.24 55.4% TRUE TRUE Hard 11th Retail-Unanchored FALSE
21 1.24 55.4% TRUE TRUE Hard 11th Retail-Anchored FALSE
1.24 55.4%
- -----------------------------------------------------------------------------------------------------------------------------------
22 1.24 80.8% TRUE TRUE Hard 11th Retail-Anchored FALSE
22 1.24 80.8% TRUE TRUE Hard 11th Retail-Unanchored FALSE
1.24 80.8%
- -----------------------------------------------------------------------------------------------------------------------------------
23 1.65 75.0% TRUE Hard 11th Industrial FALSE
24 1.37 64.0% TRUE Soft 11th Multifamily TRUE $ 733,469 7.160%
25 1.27 69.8% TRUE Hard 11th Office FALSE
26 1.42 56.6% TRUE Soft 11th Retail-Unanchored FALSE
27 1.34 75.7% TRUE No 11th Retail-Unanchored FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
28 1.41 67.7% TRUE No 11th Multifamily FALSE
29 1.21 75.8% TRUE No 11th Retail-Anchored TRUE $ 762,528 7.390%
30 1.41 69.3% TRUE Hard 11th Office FALSE
31 1.70 47.2% TRUE No 11th Office FALSE
32 1.33 70.3% TRUE No 11th Movie Theatre FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
33 1.22 72.9% TRUE No 11th Retail-Anchored FALSE
34 1.41 56.3% TRUE Hard 11th Office-Medical Office FALSE
35 1.15 64.0% TRUE No 11th Office FALSE
36 1.21 71.7% TRUE Hard 11th Office TRUE $ 590,868 7.147%
- -----------------------------------------------------------------------------------------------------------------------------------
37 1.00 96.5% TRUE TRUE Hard 11th Retail-Quasi-Anchored FALSE
38 1.18 78.5% TRUE No 11th Multifamily FALSE
39 1.45 64.3% TRUE No 11th Retail-Anchored FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
40 1.24 62.6% TRUE TRUE Hard 11th Office TRUE 7.750%
40 1.24 62.6% TRUE TRUE Hard 11th Office TRUE 7.750%
1.24 62.6% $ 280,127
- -----------------------------------------------------------------------------------------------------------------------------------
41 1.13 76.3% TRUE No 11th Multifamily FALSE
42 1.32 78.0% TRUE No 11th Multifamily FALSE
43 1.21 75.8% TRUE No 11th Retail-Quasi-Anchored FALSE
44 1.00 95.9% TRUE TRUE Hard 11th Retail-Quasi-Anchored FALSE
45 1.17 63.1% TRUE Hard 11th Office FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
46 1.40 82.9% TRUE No 11th Multifamily FALSE
47 1.43 59.8% TRUE No 11th Retail-Quasi-Anchored FALSE
48 1.00 95.7% TRUE TRUE Hard 11th Retail-Quasi-Anchored FALSE
49 1.41 69.5% TRUE No 11th Multifamily FALSE
50 1.48 75.8% TRUE No 11th Multifamily FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
51 1.78 62.5% TRUE No 11th Multifamily FALSE
52 1.25 67.2% TRUE No 11th Retail-Anchored FALSE
53 1.59 62.5% TRUE No 11th Office FALSE
54 1.60 43.1% TRUE No 11th Mobile Home Park FALSE
55 1.00 96.7% TRUE TRUE Hard 11th Retail-Quasi-Anchored FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
56 1.62 63.8% TRUE Hard 11th Office FALSE
57 1.00 96.6% TRUE TRUE Hard 11th Retail-Quasi-Anchored FALSE
58 1.00 96.6% TRUE TRUE Hard 11th Retail-Quasi-Anchored FALSE
59 1.61 70.5% TRUE Soft 11th Multifamily FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
60 1.62 72.0% TRUE No 11th Multifamily FALSE
61 1.40 69.3% TRUE Soft 11th Multifamily FALSE
62 1.46 73.4% TRUE Soft 11th Multifamily FALSE
63 1.23 67.0% TRUE No 11th Office FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
64 1.88 50.5% TRUE TRUE No 11th Multifamily FALSE
64 1.88 50.5% TRUE TRUE No 11th Retail-Quasi-Anchored FALSE
1.88 50.5%
- -----------------------------------------------------------------------------------------------------------------------------------
65 1.25 62.7% TRUE No 11th Industrial FALSE
66 1.39 76.9% TRUE Soft 11th Multifamily FALSE
67 1.27 66.6% TRUE No 11th Retail-Quasi-Anchored FALSE
68 1.66 65.8% TRUE No 11th Industrial FALSE
69 1.51 67.9% TRUE Hard 11th Office FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
70 1.32 78.7% TRUE No 11th Multifamily FALSE
71 1.70 72.8% TRUE No 11th Multifamily FALSE
72 1.73 67.3% TRUE No 11th Industrial FALSE
73 1.62 57.4% TRUE Hard 11th Office FALSE
74 1.20 60.6% TRUE Hard 11th Office FALSE
- -----------------------------------------------------------------------------------------------------------------------------------
75 1.49 72.1% TRUE Soft 11th Multifamily FALSE
76 1.71 47.6% TRUE No 11th Retail-Quasi-Anchored FALSE
77 1.68 66.9% TRUE No 11th Industrial FALSE
78 1.62 51.1% TRUE Soft 11th Multifamily FALSE
79 1.40 66.4% TRUE No 11th Industrial FALSE
80 1.54 63.2% TRUE Soft 11th Multifamily FALSE
</TABLE>
<PAGE>
EXHIBIT C-1
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
__________________, being first duly sworn, deposes and says:
1. That he/she is a ______________ of ____________
______________________ (the "Purchaser"), a ___________ duly organized and
existing under the laws of the State of ________, on behalf of which he makes
this affidavit.
2. That the Purchaser's Taxpayer Identification Number is
_____________________.
3. That the Purchaser of the Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2, Class [R] [LR]
(the "Class [R] [LR] Certificate") is a Permitted Transferee (as defined in
Article I of the Pooling and Servicing Agreement, dated as of October 11, 1999,
by and among Asset Securitization Corporation, as depositor, BNY Asset Solutions
LLC, as servicer, Lennar Partners, Inc., as special servicer, LaSalle Bank
National Association, as trustee, and ABN AMRO Bank N.V., as fiscal agent (the
"Pooling and Servicing Agreement"), or is acquiring the Class [R] [LR]
Certificate for the account of, or as agent (including as a broker, nominee, or
other middleman) for, a Permitted Transferee and has received from such person
or entity an affidavit substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they
have come due and intends to pay its debts as they come due in the future and
the Purchaser intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Purchaser understands that it may incur tax
liabilities with respect to the Class [R] [LR] Certificate in excess of any cash
flow generated by the Class [R] [LR] Certificate. [The Purchaser acknowledges
that the Class LR Certificate represents a residual interest in three separate
REMICs: the Upper-Tier REMIC, the Geneva Crossing REMIC and the Henry W. Oliver
REMIC.]
6. That the Purchaser will not transfer the [Class [R] [LR]
Certificate] [Loan REMIC Residual Interests] to any person or entity from which
the Purchaser has not received an affidavit substantially in the form of this
affidavit or as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 4 or paragraph 7 hereof are not
satisfied or that the Purchaser has reason to know does not satisfy the
requirements set forth in paragraph 4 hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and
is not purchasing the Class [R] [LR] Certificate for the account of, or as an
agent (including as a broker, nominee or other middleman) for, a Disqualified
Non-U.S. Person.
8. That the Purchaser agrees to such amendments of the Pooling
and Servicing Agreement as may be required to further effectuate the
restrictions on transfer of the Class [R] [LR] Certificate to such a
"disqualified organization," an agent thereof, or a person that does not satisfy
the requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated
with respect to the [Upper-Tier REMIC] [Lower-Tier REMIC or either of the Loan
REMICs], the Purchaser agrees to act as "tax matters person" and to perform the
functions of "tax matters partner" of the [Upper-Tier REMIC] [the Lower-Tier
REMIC or such Loan REMIC as the case may be] pursuant to Section 4.04 of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the Trustee as the Purchaser's agent in performing the function of "tax matters
person" and "tax matters partner."
10. The Purchaser agrees to be bound by and to abide by the
provisions of Section 5.02 of the Pooling and Servicing Agreement concerning
registration of the transfer and exchange of the Class [R] [LR] Certificate.
Capitalized terms used but not defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf by its ______________ this ________ day of
_________________, 1999.
[PURCHASER]
By:
--------------------------
Title:
Name:
<PAGE>
Personally appeared before me the above-named _______________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the _____________ of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and the free act and deed of the
Purchaser.
Subscribed and sworn before me this _______ day of
_________________, ____.
- ------------------------------
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _________
My commission expires the ________ day of ________________, ____.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association, as Trustee
and Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-CMAT
Series 1999-C2
Re: [Commercial Mortgage Asset Trust, Commercial Mortgage Pass-
Through Certificates, Series 1999-C2, Class [R][LR]] [Geneva Crossing
REMIC Residual Interest and Henry W. Oliver REMIC Residual Interest]
Ladies and Gentleman:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the information contained in paragraph 4 or 7 thereof is not true.
Very truly yours,
[Transferor]
-----------------
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association, as Trustee
and Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-CMAT,
Series 1999-C2
Asset Securitization Corporation
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Brad Altberger
Re: Transfer of Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series
1999-C2
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of October 11, 1999 (the "Pooling and Servicing
Agreement"), by and among Asset Securitization Corporation, as depositor, BNY
Asset Solutions LLC, as servicer, Lennar Partners, Inc., as special servicer,
LaSalle Bank National Association, as trustee, and ABN AMRO Bank N.V., as fiscal
agent on behalf of the Holders of Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 (the "Certificates") in
connection with the transfer by _________________ (the "Seller") to the
undersigned (the "Purchaser") of [[$____________] aggregate Certificate Balance]
[[___]% Percentage Interest] of Class [ ] Certificates (such registered interest
being the "Certificate"). Capitalized terms used but not defined herein shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows [check one of the following]:
\ \[For Institutional Accredited Investors only] We are an
"institutional accredited investor" (an entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act of 1933, as amended (the "Securities
Act")) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of our investment in the Certificate, and we and any
accounts for which we are acting are each able to bear the
economic risk of our or its investment. We are acquiring the
Certificate purchased by us for our own account or for one or
more accounts (each of which is an "institutional accredited
investor") as to each of which we exercise sole investment
discretion. The Purchaser hereby undertakes to reimburse the
Trust for any costs incurred by it in connection with this
transfer.
\ \[For Qualified Institutional Buyers only] The Purchaser is a
"qualified institutional buyer" within the meaning of Rule 144A
("Rule 144A") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser is aware that the
transfer is being made in reliance on Rule 144A, and the
Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
\ \[For Affiliated Persons Only] The Purchaser is a person involved
in the organization or operation of the issuer or an affiliate of
such a person, as defined in Rule 405 of the Securities Act of
1933, as amended (the "Securities Act").
2. The Purchaser's intention is to acquire the Certificate (a)
for investment for the Purchaser's own account or (b) for resale to (i)
"qualified institutional buyers" in transactions under Rule 144A, or (ii) to
"institutional accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act, pursuant
to any other exemption from the registration requirements of the Securities Act,
subject in the case of this clause (ii) to (a) the receipt by the Certificate
Registrar of a letter substantially in the form hereof, (b) the receipt by the
Certificate Registrar of an opinion of counsel acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act, (c) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the Securities Act and other applicable
laws, and (d) a written undertaking to reimburse the Trust for any costs
incurred by it in connection with the proposed transfer. Purchaser understands
that the Certificate (and any subsequent Individual Certificate) has not been
registered under the Securities Act due to a specified exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the Purchaser's investment intent (or intent to
resell to only certain investors in certain exempted transactions) as expressed
herein.
3. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
4. The Purchaser has reviewed the Private Placement Memorandum
dated October __, 1999, relating to the Certificates (the "Private Placement
Memorandum") and the agreements and other materials referred to therein and has
had the opportunity to ask questions and receive answers concerning the terms
and conditions of the transactions contemplated by the Private Placement
Memorandum.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
an Individual Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion
of the Certificate, except in compliance with Section 5.02 of the Pooling and
Servicing Agreement.
7. Check one of the following:*
\ \The Purchaser is a "U.S. Person" and it has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
\ \The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) with respect to
distributions to be made on the Certificate. The Purchaser has
attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed copies
of IRS Form 4224 (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state
that interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated IRS Forms W-8 or IRS
Forms 4224, as the case may be, any applicable successor IRS
forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the date that any such IRS
form or certification expires or becomes obsolete, or promptly
after the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation or partnership (except to
the extent provided in applicable Treasury Regulations) created or organized in
or under the laws of the United States, any State or the District of Columbia,
including any entity treated on a corporation or partnership for federal income
tax purposes, an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of such
trust, and one or more United States fiduciaries have the authority to control
all substantial decisions of such trust, (or, to the extent provided in
applicable Treasury Regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons).
Please make all payments due on the Certificates:**
\ \ (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities
therefore:
Account number _________ Institution __________________
\ \ (b) by mailing a check or draft to the following address:
--------------------------------------------
--------------------------------------------
--------------------------------------------
Very truly yours,
--------------------------------------------
[The Purchaser]
By:
---------------------------------
Name:
Title
Dated: ____ __, ____
- --------
* Each Purchaser must include one of the two alternative certifications.
** Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b). For Holders of Individual Certificates, wire transfers are
only available if such holder's Individual Certificates have an aggregate
principal face amount of at least U.S. $5,000,000.
<PAGE>
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
___________ ___,___
LaSalle Bank National Association, as Trustee
and Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-CMAT,
Series 1999-C2
Asset Securitization Corporation
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Marlyn A. Marincas
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, Class
[B][C][D][E][F][G][H] [J][K][L][M][N][Q-1][Q-2][R][LR]
Ladies and Gentlemen:
_____________________________ (the "Purchaser") intends to purchase
from __________________________ (the "Seller") $__________ initial Certificate
Balance or _____% Percentage Interest of Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2, Class
[B][C][D][E][F][G][H][J][K][L][M][N][Q-1] [Q-2][R][LR] CUSIP No.
_______-________ (the "Certificates"), issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") dated as of October
11, 1999, by and among Asset Securitization Corporation, as depositor (the
"Depositor"), BNY Asset Solutions LLC, as servicer, Lennar Partners, Inc., as
Special Servicer, LaSalle Bank National Association, as trustee (the "Trustee"),
and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). All capitalized
terms used herein and not otherwise defined shall have the meaning set forth in
the Pooling and Servicing Agreement. The Purchaser hereby certifies, represents
and warrants to, and covenants with, the Depositor, the Certificate Registrar
and the Trustee that:
1. The Purchaser is not (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Keogh
plan, which is subject to the fiduciary responsibility provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), Section
4975 of the Code, or any essentially similar Federal, State or local law (a
"Similar Law") (each, a "Plan"), nor (b) a collective investment fund in which
such Plans are invested, an insurance company using assets of separate accounts
or general accounts which include assets of Plans (or which are deemed pursuant
to ERISA or any Similar Law to include assets of Plans) or other Person acting
on behalf of any such Plan or using the assets of any such Plan, other than,
except with respect to the Class R and Class LR Certificates, an insurance
company using the assets of its general account under circumstances whereby such
purchase and the subsequent holding of such Certificate by such insurance
company and transactions in connection with the servicing, management and
operation of the Trust Fund would not constitute or result in non-exempt
prohibited transactions within the meaning of Section 406 or 407 of ERISA,
Section 4975 of the Code, or a materially similar characterization under any
Similar Law by reason of the application of Sections I and III of Prohibited
Transaction Exemption 95-60; and
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or 1(b) above, except in the case of the Class R or Class LR
Certificate, which may not be transferred unless the transferee represents it is
not such a Person, such Purchaser is required to provide to the Certificate
Registrar an Opinion of Counsel which establishes to the satisfaction of the
Certificate Registrar that the purchase or holding of the Certificates by or on
behalf of a Plan will not result in the assets of the Trust Fund being deemed to
be "plan assets" and subject to the fiduciary responsibility provisions of ERISA
or the prohibited transaction provisions of ERISA and the Code or Similar Law,
and will not constitute or result in a prohibited transaction within the meaning
of Section 406 or Section 407 of ERISA or Section 4975 of the Code, and will not
subject the Servicer, the Co-Servicer, the Special Servicer, the Depositor, the
Trustee, the Fiscal Agent or the Certificate Registrar to any obligation or
liability (including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the Servicer,
the Special Servicer, the Depositor, the Trustee or the Certificate Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes the ERISA
Representation Letter on _________ ___, ___.
Very truly yours,
-----------------------------------------
By:
------------------------------------
Name:
--------------------------------
Title:
-------------------------------
<PAGE>
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(FOR TRUSTEE/CUSTODIAN)
Loan Information
Name of Mortgagor: _______________________
Servicer
Loan No.: _______________________
Custodian/Trustee
Name: _______________________
Address: _______________________
_______________________
Custodian/Trustee
Mortgage File No.: _______________________
Depositor
Name: _______________________
Address: _______________________
Certificates: Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through
Certificates, Series 1999-C2
The undersigned Servicer hereby acknowledges that it has received from LaSalle
Bank National Association, as Trustee for the Holders of Commercial Mortgage
Asset Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2, the
documents referred to below (the "Documents"). All capitalized terms of not
otherwise defined in this Request for Release shall have the meanings given them
in the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
dated as of October 11, 1999, by and among the Trustee, ABN AMRO Bank N.V., as
fiscal agent, Asset Securitization Corporation, as depositor, BNY Asset
Solutions LLC, as servicer (the "Servicer"), and Lennar Partners, Inc., as
special servicer.
<PAGE>
( ) Promissory Note dated _______, 199__, in the original principal sum of
$_____, made by _______, payable to, or endorsed to the order of, the Trustee.
( ) Mortgage recorded on as instrument no. _____________________ in the County
Recorder's Office of the County of ______________ , State of ______________ in
book/reel/docket _________ of official records at page/image ________.
( ) Deed of Trust recorded on as instrument no. ________________ in the County
Recorder's Office of the County of _____________ , State of _______________ in
book/reel/docket _________ of official records at page/image ________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
______________ as instrument no.__________________ in the County Recorder's
Office of the County of ________________, State of _____________ in
book/reel/docket ____________ of official records at page/image ____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Note or Mortgage.
( ) ________________________________
( ) ________________________________
( ) ________________________________
( ) ________________________________
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the Documents
in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Servicer shall not cause or permit the Documents to become
subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions
nor shall the Servicer assert or seek to assert any claims or
rights of set-off to or against the Documents or any proceeds
thereof.
(3) The Servicer shall return the Documents to the Custodian when
the need therefor no longer exists, unless the Mortgage Loan
relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Collection Account and
except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the
Servicer shall at all times be earmarked for the account of
the Trustee, and the Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the
Servicer' possession, custody or control.
BNY ASSET SOLUTIONS LLC
By:
------------------------------------
Title:
---------------------------------
Date: _________ __, ____
<PAGE>
EXHIBIT F
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT, dated as of [ ] by and among [NAME OF
CUSTODIAN], as Custodian (the "Custodian"), BNY Asset Solutions LLC, as servicer
(the "Servicer"), Lennar Partners, Inc., as special servicer (the "Special
Servicer"), and LaSalle Bank National Association, as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Servicer, Special Servicer and Trustee are parties to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of October 11, 1999, among Asset Securitization Corporation, as Depositor,
the Servicer, the Special Servicer, the Trustee and ABN AMRO Bank N.V., as
Fiscal Agent, relating to Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2 (capitalized terms used but not
defined herein having the meaning assigned thereto in the Pooling and Servicing
Agreement);
WHEREAS, the parties hereto desire the Custodian to take possession
of the documents specified in Section 2.01 of the Pooling and Servicing
Agreement, as custodian for the Trustee, in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
1. The Trustee hereby certifies that it has caused to be
delivered and released to the Custodian and the Custodian hereby acknowledges
receipt of the documents specified in Section 2.01 of the Pooling and Servicing
Agreement pertaining to each of the Mortgage Loans identified in the Mortgage
Loan Schedule attached to the Pooling and Servicing Agreement as Exhibit B. From
time to time, the Servicer shall forward to the Custodian additional original
documents evidencing an assumption or modification of a Mortgage Loan approved
by the Servicer. All Mortgage Loan documents held by the Custodian as to each
Mortgage Loan are referred to herein as the "Custodian's Mortgage File." The
Custodian hereby agrees to review each of the Custodian's Mortgage Files and
perform such other obligations of the Custodian as such obligations are set
forth in the Pooling and Servicing Agreement (including Section 2.02 thereof).
2. With respect to each Note, each Mortgage, each Assignment of
Mortgage and each other document constituting each Custodian's Mortgage File
which is delivered to the Custodian or which at any time comes into the
possession of the Custodian, the Custodian is exclusively the custodian for and
the bailee of the Trustee or the Servicer. The Custodian shall hold all
documents constituting each Custodian's Mortgage File received by it for the
exclusive use and benefit of the Trustee, and shall make disposition thereof
only in accordance with the instructions furnished by the Servicer. The
Custodian shall segregate and maintain continuous custody of all documents
constituting the Custodian's Mortgage File received in secure and fire resistant
facilities located in the State of __________ in accordance with customary
standards for such custody. In the event the Custodian discovers any defect with
respect to any Custodian's Mortgage File, the Custodian shall give written
specification of such defect to the Servicer and the Trustee.
3. From time to time and as appropriate for the foreclosure or
servicing of any of the Mortgage Loans, the Custodian is hereby directed, upon
written request and receipt from the Servicer (a copy of which shall be
forwarded to the Trustee), to release to the Servicer, the related Custodian's
Mortgage File or the documents set forth in such receipt to the Servicer. All
documents so released to the Servicer shall be held by it in trust for the
benefit of the Trustee. The Servicer shall return to the Custodian the
Custodian's Mortgage File or such documents when the Servicer's need therefor in
connection with such foreclosure or servicing no longer exists, unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a
certification to this effect from the Servicer, to the Custodian, the Servicer's
receipt shall be released by the Custodian to the Servicer.
4. Upon the purchase of any Mortgage Loan pursuant to the terms
of the Pooling and Servicing Agreement or the payment in full of any Mortgage
Loan, and upon receipt by the Custodian of the Servicer's request for release,
receipt and certification (which certification shall include a statement to the
effect that all amounts received in connection with such payment or repurchase
have been credit to the Collection Account or Distribution Account as provided
in the Pooling and Servicing Agreement), the Custodian shall promptly release
the related Custodian's Mortgage File to the Servicer.
5. It is understood that the Custodian will charge such fees for
its services under this Agreement as are set forth in a separate agreement
between the Custodian and the Servicer, the payment of which, together with the
Custodian's expenses in connection therewith, shall be solely the obligation of
the Servicer.
6. The Trustee may upon 30 days written days notice (with copy to
the Servicer) remove and discharge the Custodian or any successor Custodian
thereafter appointed from the performance of its duties under this Custodial
Agreement. Simultaneously, the Trustee shall appoint a successor Custodian to
act on its behalf by written instrument, one original counterpart of which
instrument shall be delivered to each Rating Agency, one copy to the Servicer,
and one copy to the successor Custodian. In the event of any such removal, the
Custodian shall promptly transfer to the successor Custodian, as directed, all
Custodian's Mortgage Files being administered under this Custodial Agreement.
Notwithstanding the foregoing, so long as BNY Asset Solutions LLC is Servicer,
the Trustee shall not have a right to remove the Custodian.
7. Upon reasonable prior written notice to the Custodian, the
Trustee and its agents, accountants, attorneys and auditors will be permitted
during normal business hours to examine the Custodian's Mortgage Files,
documents, records and other papers in the possession of or under the control of
the Custodian relating to any or all of the Mortgage Loans.
8. If the Custodian is furnished with written notice from the
Trustee or the Servicer that the Pooling and Servicing Agreement has been
terminated as to any or all of the Mortgage Loans, it shall upon written request
of the Trustee or the Servicer release to such persons as the Trustee or the
Servicer shall designate the Custodian's Mortgage Files relating to such
Mortgage Loans as the Trustee or the Servicer shall request and shall complete
the Assignments of Mortgage and endorse the Notes only as, and if, the Trustee
or the Servicer shall request. The person making such written request shall send
notice of such request to all other parties to the Pooling and Servicing
Agreement.
9. The Custodian shall, at its own expense, maintain at all times
during the existence of this Custodial Agreement and keep in full force and
effect (a) fidelity insurance, (b) theft of documents insurance, (c) forgery
insurance and (d) errors and omissions insurance. All such insurance shall be in
amounts, with standard coverage and subject to deductibles, as are customary for
insurance typically maintained by banks which act as custodian in similar
transactions provided, however, that so long as the Custodian is rated at least
"AA" no such insurance shall be required.
10. This Custodial 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 and be one and the same
instrument.
11. Within 10 days of each anniversary of the date of this
Custodial Agreement, or upon the request of the Trustee or the Servicer at any
other time, the Custodian shall provide to the Trustee and the Servicer a list
of all the Mortgage Loans for which the Custodian holds a Custodian's Mortgage
File pursuant to this Custodial Agreement. Such list may be in the form of a
copy of the Mortgage Loan Schedule with manual deletions to specifically denote
any Mortgage Loans paid off, liquidated or repurchased since the date of this
Custodial Agreement.
12. THIS CUSTODIAL AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
13. By execution of this Custodial Agreement, the Custodian
warrants that it currently does not hold and during the existence of this
Custodial Agreement shall not hold any adverse interest, by way of security or
otherwise, in any Mortgage Loan, and hereby waives and releases any such
interest which it may have in any Mortgage Loan as of the date hereof.
14. The Custodian may terminate its obligations under this
Custodial Agreement upon at least 60 days notice to the Trustee and the
Servicer. In the event of such termination, the Trustee shall appoint a
successor Custodian. Upon such appointment, the Custodian shall promptly
transfer to the successor Custodian, as directed, all Custodian's Mortgage Files
being administered under this Custodial Agreement.
15. This Custodial Agreement shall terminate upon the final
payment or other liquidation (or advance with respect thereto) of the last
Mortgage Loan or the disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan, and the final remittance of
all funds due the Certificateholders under the Pooling and Servicing Agreement.
In such event, all documents remaining in the Custodian's Mortgage Files shall
be forwarded to the Trustee.
16. All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by the
addressee. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
17. The Servicer shall indemnify, defend, and hold harmless the
Custodian for any actions taken by the Custodian at its written request.
[SIGNATURES FOLLOW ON NEXT PAGE]
<PAGE>
IN WITNESS WHEREOF, the Custodian, Servicer, Special Servicer and
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the date first written above.
[NAME OF CUSTODIAN],
as Custodian
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BNY ASSET SOLUTIONS LLC,
as Servicer
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
LENNAR PARTNERS, INC.,
as Special Servicer
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
<PAGE>
EXHIBIT G
SECURITIES LEGEND
The Private Certificates will bear a legend (the "Securities
Legend") to the following effect, unless the Certificate Registrar determines
otherwise in accordance with applicable law:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
<PAGE>
EXHIBIT H-1
CCA MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (the "AGREEMENT")
dated as of October 11, 1999, is between Asset Securitization Corporation, a
Delaware corporation (the "COMPANY"), and The Capital Company of America LLC, a
Delaware limited liability company ("CCA," and in such capacity, the "Seller").
The Seller agrees to sell and the Company agrees to purchase the mortgage loans
described on Exhibit A hereto which are certain of the mortgage loans described
and set forth in the Mortgage Loan Schedule attached as Exhibit B to the Pooling
and Servicing Agreement dated as of October 11, 1999 (the "POOLING AND SERVICING
AGREEMENT"), among the Company, BNY Asset Solutions LLC, as servicer (the
"SERVICER"), Lennar Partners, Inc., as special servicer (the "SPECIAL
SERVICER"), LaSalle Bank National Association, as trustee (the "TRUSTEE") and
ABN AMRO Bank N.V., as fiscal agent, relating to the issuance of the Commercial
Mortgage Asset Trust, Commercial Mortgage Pass-Through Certificates, Series
1999-C2 (the "CERTIFICATES") created pursuant to the REMIC Declarations (as
defined in the Pooling and Servicing Agreement). The Certificates will consist
of twenty-one classes: the "Class A-1 Certificates," the "Class A-2
Certificates," the "Class A-3 Certificates," the "Class CS-1 Certificates", the
"Class X Certificates," the "Class B Certificates," the "Class C Certificates,"
the "Class D Certificates," the "Class E Certificates" and the "Class F
Certificates" (collectively, the "OFFERED CERTIFICATES"), and the "Class G
Certificates," the "Class H Certificates," the "Class J Certificates," the
"Class K Certificates," the "Class L Certificates," the "Class M Certificates,"
the "Class N Certificates," the "Class Q-1 Certificates," the "Class Q-2
Certificates," the "Class R Certificates" and the "Class LR Certificates"
(collectively, the "Private Certificates" and, together with the Offered
Certificates, the "CERTIFICATES"). Capitalized terms used without definition
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement or, if not defined therein, in the Underwriting Agreement,
dated October 15, 1999, by and among the Company, CCA, Nomura Holding America
Inc., and Goldman, Sachs & Co. ("GOLDMAN") and Nomura Securities International,
Inc. ("NSI"), as representatives of the underwriters identified therein
(collectively, the "UNDERWRITERS"), as amended by Amendment No. 1 to the
Underwriting Agreement, dated as of October 15, 1999, by and among the Company,
CCA, NHA and Goldman and NSI (the "UNDERWRITING AGREEMENT"). The mortgage loans
sold pursuant to this Agreement are referred to herein as the "MORTGAGE LOANS."
1. PURCHASE PRICE; PURCHASE AND SALE. The purchase price (THE
"PURCHASE PRICE") for the Mortgage Loans shall be an amount agreed upon by the
parties in a separate writing, which amount shall be payable by the Company to
the Seller on the Closing Date in immediately available funds. The closing for
the purchase and sale of the Mortgage Loans shall take place at the offices of
Cadwalader, Wickersham & Taft, New York, New York, at 10:00 a.m. New York time,
on the Closing Date.
As of the Closing Date, the Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to the Company, without recourse (except as
expressly provided herein), all the right, title and interest of the Seller in
and to the Mortgage Loans identified on Exhibit A hereto, including all interest
and principal due on or with respect to the Mortgage Loans after 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, primary mortgage or other insurance
policies and any and all rights and obligations of the Seller as lender under
the Mortgage Loans to establish or designate successor borrowers in connection
with the defeasance of the Mortgage Loans, which rights and obligations are
hereby assumed by the Company.
The Company hereby directs the Seller, and the Seller hereby agrees,
to deliver to the Trustee all documents, instruments and agreements required to
be delivered by the Company to the Custodian on behalf of the Trustee under the
Pooling and Servicing Agreement and such other documents, instruments and
agreements as the Company or the Trustee shall reasonably request.
2. REPRESENTATIONS AND WARRANTIES. (a) The Seller hereby represents
and warrants to the Company as of the Closing Date that:
(i) The Seller is a limited liability company duly
organized, validly existing and in good standing under
the laws of the State of Delaware with full power and
authority to carry on its business as presently
conducted by it;
(ii) The Seller has taken all necessary action to authorize
the execution, delivery and performance of this
Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all the
transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and
transfer the Mortgage Loans in accordance with this
Agreement;
(iii) Assuming the due authorization, execution and delivery
of this Agreement by the Company, this Agreement and all
of the obligations of the Seller hereunder are the
legal, valid and binding obligations of the Seller,
enforceable in accordance with the terms of this
Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or
affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity
or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Seller
does 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
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, which would materially and adversely affect
the ability of the Seller to carry out the transactions
contemplated by this Agreement. The Seller has obtained
any consent, approval, authorization or order of any
court or governmental agency or body required for the
execution, delivery and performance by the Seller of
this Agreement;
(v) There is no action, suit or proceeding pending against
the Seller in any court or by or before any other
governmental agency or instrumentality which would
materially and adversely affect the ability of the
Seller to carry out its obligations under this Agreement
or have a material adverse effect on the financial
condition of the Seller or the ability of the Seller to
perform its obligations under this Agreement; and
(vi) At the time the Mortgage Loan was originated and as of
the date hereof, the Originator was and is approved by
the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act.
(b) The Seller hereby represents and warrants with respect to each
Mortgage Loan that as of the date specified below or, if no such date is
specified, as of the Closing Date:
(i) Immediately prior to the sale, transfer and assignment
to the Company, each related Note and Mortgage was not
subject to an assignment (other than to the Seller) or
pledge, and the Seller had good and marketable title to,
and was the sole owner of, the Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign
and transfer such Mortgage Loan and the assignment to
the Company constitutes a legal, valid and binding
assignment of such Mortgage Loan. Each related Note and
Mortgage contain no provision limiting the right or
ability of the Depositor to assign transfer and convey
the Note or Mortgage to any other person or entity;
(iii) The Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan,
subject to the matters described in clause (xi) below;
(iv) Each Note, Mortgage, Assignment of Leases, Rents and
Profits (if any) and other material agreement executed
in connection with such Mortgage Loan was, at the time
of origination, legal, valid and binding obligations of
the related Borrower, enforceable in accordance with
their terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors'
rights generally, or by general principles of equity
(regardless of whether such enforceability is considered
in a proceeding in equity or at law) and to the best of
the Seller's knowledge, there is no valid defense,
counterclaim, right of rescission or right of set-off or
abatement available to the related Borrower with respect
to such Note, Mortgage and other material agreements;
(v) The Assignment of Leases, Rents and Profits, if any,
creates a valid, collateral or first priority assignment
of, or a valid first priority security interest in,
certain rights under the related lease, subject only to
a license granted to the related Borrower to exercise
certain rights and to perform certain obligations of the
lessor under such lease, including the right to operate
the related Mortgaged Property; no person other than the
related Borrower owns any interest in any payments due
under such lease that is superior to or of equal
priority with the mortgagee's interest therein;
(vi) Each related assignment of Mortgage from the Seller to
the Company and any related Reassignment of Assignment
of Leases, Rents and Profits, if any, or assignment of
any other agreement executed in connection with such
Mortgage Loan, from the Seller to the Company
constitutes the legal, valid and binding assignment from
the Seller to the Company, except as such enforcement
may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights
generally, or by general principles of equity
(regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the
related Mortgage File (but in no event inconsistent with
the Mortgage Loan Schedule), the Mortgage Loan has not
been waived, modified, altered, satisfied, canceled,
subordinated or rescinded and, the related Mortgaged
Property has not been released from the lien of the
related Mortgage in any manner which materially
interferes with the security intended to be provided by
such Mortgage;
(viii) Each Mortgage is a valid and enforceable first priority
lien on the related Mortgaged Property, and such
Mortgaged Property (subject to the matters described in
clause (xi) below) is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are
insured against by a lender's title insurance policy (as
described below);
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related
Borrower in the Mortgage Loan not to be true in any
material respect;
(x) The Seller has no knowledge that the representations and
warranties made by each related Borrower in such
Mortgage Loan are not true in any material respect;
(xi) The lien of each Mortgage is insured by an ALTA lender's
title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Originator, its
successors and assigns, or the holder of the related
Note as to a valid and first priority lien of the
Mortgage in at least the original principal amount of
such Mortgage Loan or Allocated Loan Amount of the
related Mortgaged Property (as set forth on the Mortgage
Loan Schedule which is an exhibit to the Pooling and
Servicing Agreement), subject only to (a) the lien of
current real property taxes, ground rents, water
charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public
record, none of which, individually or in the aggregate,
materially interferes with the current use or operation
of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Borrower's ability
to pay its obligations when they become due or the value
of the Mortgaged Property and (c) the exceptions
(general and specific) set forth in such policy, none of
which, individually or in the aggregate, materially
interferes with the security intended to be provided by
such Mortgage or with the related Borrower's ability to
pay its obligations when they become due or the value,
use or operation of the Mortgaged Property; the
Originator or its successors or assigns is the sole
named insured of such policy; such policy is assignable
to the Company without the consent of or any
notification to the insurer, and is in full force and
effect upon the consummation of the transactions
contemplated by this Agreement; no claims have been made
under such policy and the Seller has not done anything,
by act or omission, and the Seller has no knowledge of
any matter, which would impair or diminish the coverage
of such policy; to the extent required by applicable
law, the insurer issuing such policy is qualified to do
business in the jurisdiction in which the related
Mortgaged Properties are located;
(xii) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future
advances thereunder and the Seller covenants that it
will not make any future advances under the Mortgage
Loan to the related Borrower;
(xiii) The Mortgaged Property is free of any material damage
that would affect materially and adversely the value of
such Mortgaged Property as security for the Mortgage
Loan and is in good repair and there is no proceeding
pending for the total or partial condemnation of such
Mortgaged Property;
(xiv) The Borrower is in possession of all material licenses,
permits and other authorizations necessary and required
by all applicable laws for the conduct of its business
and all such licenses, permits and authorizations are
valid and in full force and effect, and if the Mortgaged
Property is improved by a hotel, the most recent
inspection or review by the franchisor, if any, did not
cite such Mortgaged Property for material violations of
the related franchise agreement which have not been
cured;
(xv) The Seller has inspected or caused to be inspected the
Mortgaged Property (except certain of the Credit Lease
Properties) within the past 12 months preceding the
Cut-off Date or within 1 month of origination of the
Mortgage Loan;
(xvi) Except for ARD Loans (with respect to which interest
accrues on Excess Interest and the priority of repayment
of Excess Interest follows principal), the Mortgage Loan
does not have a shared appreciation feature, other
contingent interest feature or negative amortization;
(xvii) The Mortgage Loan is a whole loan and no other party
holds an interest in the Mortgage Loan;
(xviii) (A) The Mortgage Rate (exclusive of any default
interest, late charge or yield maintenance charge) of
such Mortgage Loan complied as of the date of
origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements
pertaining to usury; any and all other requirements of
any federal, state or local laws, including, without
limitation, truth-in-lending, real estate settlement
procedures, equal credit opportunity or disclosure laws,
applicable to such Mortgage Loan have been complied with
as of the date of origination of such Mortgage Loan in
all material respects and (B) the Seller has received an
opinion that such Mortgage Loan is not usurious;
(xix) (A) With respect to each Mortgage Loan originated by the
Seller, no fraudulent acts were committed by the Seller
during the origination process of such Mortgage Loan and
the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and
prudent in accordance with customary industry standards
and (B) with respect to each Mortgage Loan originated by
Bloomfield, to the best of the Seller's knowledge, no
fraudulent acts were committed by Bloomfield during the
origination process of such Mortgage Loan and the
origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in
accordance with customary industry standards;
(xx) All taxes and governmental assessments that prior to the
Closing Date became due and owing in respect of each
related Mortgaged Property have been paid or an escrow
of funds in an amount sufficient to cover such payments
has been established;
(xxi) All escrow deposits and payments required pursuant to
the Mortgage Loans are in the possession, or under the
control, of the Seller or its agent and there are no
deficiencies in connection therewith and all such
escrows and deposits have been conveyed by the Seller to
the Company and identified as such with appropriate
detail;
(xxii) To the extent required under applicable law, as of the
Cut-off Date, the Seller was authorized to transact and
do business in the jurisdiction in which each related
Mortgaged Property is located at all times when it held
the Mortgage Loan;
(xxiii) (A) The Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an
insurer meeting the requirements under the related
Mortgage Loan in an amount not less than the
replacement cost and the amount necessary to avoid
the operation of any co-insurance provisions with
respect to the Mortgaged Property, except with
respect to certain portions of certain Mortgaged
Properties in which a Credit Tenant self-insures
for its portion of such Mortgaged Property;
(B) The Mortgaged Property is covered by business
interruption insurance (for at least 12 months of
rent interruptions) and each Mortgaged Property is
covered by comprehensive general liability
insurance in amounts generally required by
institutional lenders for similar properties;
(C) Each Mortgaged Property is insured by a flood
insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are
located in an area identified by the Federal
Emergency Management Agency as having special
flood hazards);
(D) The Mortgage Loan is covered by worker's
compensation insurance to the extent required by
law;
(E) Each insurance policy contains a standard
mortgagee clause that names the mortgagee and its
successors as an additional insured;
(F) All premiums on any insurance policies required to
be paid as of the date hereof have been paid;
(G) The insurance policies require prior notice to the
insured of termination or cancellation, and no
such notice has been received; and
(H) Each related Mortgage or Loan Agreement obligates
the related Borrower to maintain all such
insurance and, at such Borrower's failure to do
so, authorizes the mortgagee to maintain such
insurance at the Borrower's cost and expense and
to seek reimbursement therefor from such Borrower;
(xxiv) There is no default, breach, violation or event of
acceleration existing under the related Mortgage or the
related Note and, to the Seller's knowledge, no event
which, with the passage of time or with notice and the
expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of
acceleration;
(xxv) The Mortgage Loan has not been 30 days or more
delinquent in the payment of principal and/or interest
since since origination and as of the Cut-off Date was
not delinquent;
(xxvi) The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of
the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security,
including realization by judicial or, if applicable,
non-judicial foreclosure, and there is no exemption
available to the Borrower which would interfere with
such right to foreclose. To the best of the Seller's
knowledge, no Borrower is a debtor in a state or federal
bankruptcy or insolvency proceeding;
(xxvii) The related Borrower represents and warrants in the
Mortgage or Loan Agreement that, except as set forth in
certain environmental reports or other documents (which
documents have been previously provided to the Rating
Agencies) and to the best of its knowledge, it has not
used, caused or permitted to exist and will not use,
cause or permit to exist on the Mortgaged Property any
Hazardous Materials in any manner which violates
federal, state or local laws, ordinances, regulations,
orders, directives or policies governing the use,
storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of
Hazardous Materials; the Borrower agrees to indemnify,
defend and hold the mortgagee and its successors and
assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines,
expenses, and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered
by, or asserted against, any such party resulting from a
breach of certain representations, warranties or
covenants given by the Borrower in such Mortgage or Loan
Agreement. A Phase I environmental report was conducted
by a reputable environmental engineer in connection with
the origination of the Mortgage Loan, which report does
not indicate any material non-compliance or material
existence of Hazardous Materials, except as disclosed to
Seller in environmental reports or summaries of such
reports. To the best of the Seller's knowledge, the
Mortgaged Property is in material compliance with all
applicable federal, state and local laws pertaining to
environmental hazards, and to the best of Seller's
knowledge, no notice of violation of such laws has been
issued by any governmental agency or authority, except
as disclosed to Seller in environmental reports or
summaries of such reports; the Seller has not taken any
action which would cause the related Mortgaged Property
not to be in compliance with all federal, state and
local laws pertaining to environmental hazards;
(xxviii) The Mortgage or Loan Agreement contains provisions for
the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without complying with
the requirements of the Mortgage or Loan Agreement or
obtaining the prior written consent of the Mortgagee or
the satisfaction of certain conditions, the related
Mortgaged Property, or any interest therein, is directly
or indirectly transferred or sold, or encumbered in
connection with subordinate financing and each related
Mortgage prohibits the pledge or encumbrance of the
Mortgaged Property without the consent of the holder of
the Mortgage Loan;
(xxix) (1) The Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential
property, and (2) either (i) substantially all of the
proceeds of such Mortgage Loan were used to acquire,
improve or protect an interest in real property that, at
the origination date, was the only security for the
Mortgage Loan (in the case of a Mortgage Loan that has
not been "significantly modified" in a manner that
constituted a deemed exchange under Section 1001 of the
Code at the time when the Mortgage Loan was not in
default or default with respect thereto was not
reasonably foreseeable) or (ii) the fair market value of
such real property as set forth in an independent
appraisal or market study was at least equal to 80% of
the principal amount of the Mortgage Loan (a) at
origination (or if the Mortgage Loan has been
"significantly modified" in a manner that constituted a
deemed exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or default
with respect thereto was not reasonably foreseeable, the
date of the last such modification) or (b) at the
Closing Date; provided that for purposes of this clause
(ii) the fair market value of the real property interest
must first be reduced by (A) the amount of any lien on
the real property interest that is senior to the
Mortgage Loan (unless such senior lien also secures a
Mortgage Loan, in which event the computations described
in (a) and (b) of this clause (ii) shall be made on an
aggregate basis) and (B) a proportionate amount of any
lien that is in parity with the Mortgage Loan (unless
such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which
event the computation described in (a) and (b) shall be
made on an aggregate basis). All improvements included
for the purpose of determining the Appraised Value of
the Mortgaged Property are within the boundaries of the
related Mortgaged Property (other than de minimis
encroachments that the Seller has obtained title
insurance against the losses arising therefrom);
(xxx) (A) The Mortgage Loan constitutes a "qualified
mortgage" within the meaning of Section 860G(a)(3)
of the Code (but without regard to the rule in
Treasury Regulations 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or
any substantially similar successor provision);
(B) With respect to each Mortgage Loan, the Prepayment
Premium (including any Return of Premium Amount)
constitutes a customary prepayment penalty for
mortgage loans similar to such Mortgage Loan; and
(C) If the Mortgage Loan provides for the defeasance
of mortgage collateral, the Loan Documents permit
defeasance (a) no earlier than two years after the
Closing Date (or, if earlier, two years following
the "startup day," within the meaning of Code
Section 860G (a)(9), of a REMIC of which the
Mortgage Loan (not including any Other Note) is an
asset), (b) only with substitute collateral
constituting "government securities" within the
meaning of Treasury Regulations 1.860G-2(a)(8)(i)
and (c) only to facilitate the disposition of the
Mortgaged Property and not as part of an
arrangement to collateralize a REMIC offering with
obligations that are not real estate mortgages;
(D) If the Mortgage Loan provides for the defeasance
of mortgage collateral, the Loan Documents permit
defeasance (a) no earlier than two years after the
Closing Date (or, if earlier, two years following
the "startup day" within the meaning of Code
Section 860G (a)(9), of a REMIC of which the
Mortgage Loan (not including any Other Note) is an
asset), (b) only with substitute collateral
constituting "government securities" within the
meaning of Treasury Regulations 1.860G-2(a)(8)(i)
and (c) only to facilitate the disposition of the
Mortgaged Property and not as part of an
arrangement to collateralize a REMIC offering with
obligations that are not real estate mortgages;
(xxxi) The mortgage loan schedule which is an exhibit to the
Pooling and Servicing Agreement is complete and accurate
in all material respects;
(xxxii) The Mortgaged Property is in compliance, in all material
respects, with all applicable laws, zoning ordinances,
rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such
Mortgaged Property; provided that several Mortgaged
Properties constitute a legal nonconforming use or
structure. All inspections, licenses and certificates
required, including certificates of occupancy (if
applicable), whether by law, ordinance, regulation or
insurance standards to be made or issued with regard to
the Mortgaged Property, have been obtained and are in
full force and effect;
(xxxiii) (A) The related Borrower is an entity whose
organizational documents provide that it is, and
at least so long as the Mortgage Loan is
outstanding will continue to be, a single-purpose
entity. (For this purpose, "single-purpose entity"
shall mean a person, other than an individual,
which is formed or organized solely for the
purpose of owning and operating the Mortgaged
Property and does not engage in any business
unrelated to such property and its financing);
(B) A non-consolidation opinion was obtained for each
Borrower or group of affiliated Borrowers in which
the Cut-off Date Principal Balance of the Mortgage
Loan or Loans, as applicable, have an aggregate
Cut-off Date Principal Balance in excess of
$20,000,000;
(C) The organizational documents for each Borrower (or
group of affiliated Borrowers) under a Mortgage
Loan or Loans having a Cut-off Date Principal
Balance (or aggregate Cut-off Date Principal
Balance) in excess of $25,000,000 require that the
Board of Directors of the Borrower or Borrowers,
as applicable, its corporate general partner, or
managing member, as applicable, include an
independent director;
(xxxiv) Each Mortgaged Property consists entirely of the related
Mortgagor's fee simple estate in real estate, except
with respect to Bayside Exposition Center Loan which
consists either partially or entirely of the related
Mortgagor's interest under a ground lease. If a material
portion of the estate of the related Borrower is a
leasehold estate and the fee interest of the ground
lessor is not subject and subordinate to the related
Mortgage, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding it has
been duly recorded. The ground lease permits the
interest of the lessee to be encumbered by the
related Mortgage and does not restrict the use of
the related Mortgaged Property by such lessee, its
successors or assigns in a manner that would
adversely affect the security provided by the
related Mortgage. There has been no material
change in the terms of such ground lease since its
recording, except by written instruments, all of
which are included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in
writing and included in the related Mortgage File
that the ground lease may not be amended,
modified, canceled or terminated without the prior
written consent of the mortgagee;
(C) The ground lease has an original term (or an
original term plus one or more optional renewal
terms, which, under all circumstances, may be
exercised, and will be enforceable, by the
mortgagee) that extends not less than 10 years
beyond the stated maturity of the related Mortgage
Loan and not less than 20 years beyond the related
Anticipated Repayment Date of the related Mortgage
Loan. Each Mortgage Loan secured by a ground lease
is also an ARD Loan;
(D) The ground lease is prior to any mortgage or other
lien upon the related fee interest and the
landlord has not entered into an agreement to
subordinate the ground lease to future mortgages
or liens on the fee interest;
(E) The ground lease is assignable to the mortgagee
under the leasehold estate and its assigns without
the consent of the lessor thereunder;
(F) As of the date hereof, the ground lease is in full
force and effect and no default has occurred, nor
is there any existing condition which, but for the
passage of time or giving of notice, would result
in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between
the lessor and the lessee requires the lessor to
give notice of any default by the lessee to the
mortgagee;
(H) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to
gain possession of the interest of the lessee
under the ground lease through legal proceedings,
or to take other action so long as the mortgagee
is proceeding diligently) to cure any default
under the ground lease which is curable after the
receipt of notice of any default before the lessor
may terminate the ground lease. All rights of the
mortgagee under the ground lease and the related
Mortgage (insofar as it relates to the ground
lease) may be exercised by or on behalf of the
mortgagee;
(I) The ground lease does not impose any restrictions
on subletting that would be viewed as commercially
unreasonable by an institutional investor. The
lessor is not permitted to disturb the possession,
interest or quiet enjoyment of any subtenant of
the lessee in the relevant portion of the
Mortgaged Property subject to the ground lease for
any reason, or in any manner, which would
adversely affect the security provided by the
related Mortgage;
(J) The ground lease provides that insurance proceeds
or condemnation awards (other than in respect of a
total or substantially total loss or taking) will
be applied either to the repair or restoration of
all or part of the Mortgaged Property with the
mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as repair
or restoration progresses, or, if permitted by the
related ground lease, to the payment of the
outstanding principal balance of the Mortgage
Loan, together with any accrued interest, except
that in the case of condemnation awards, the
ground lessor is entitled to an amount of such
award generally based on the value of the
unimproved land taken;
(K) Under the terms of the ground lease and the
related Mortgage, any related insurance proceeds,
or condemnation award in respect of a total or
substantially total loss or taking of the related
Mortgaged Property will be applied first to the
payment of the outstanding principal balance of
the Mortgage Loan, together with any accrued
interest (except where contrary to applicable law
or in cases where a different allocation would not
be viewed as commercially unreasonable by any
institutional investor, taking into account the
relative duration of the ground lease and the
related Mortgage and the ratio of the market value
of the related Mortgaged Property to the
outstanding principal balance of such Mortgage
Loan and except that certain ground leases may
require insurance proceeds to be applied to the
restoration of the property in respect of
casualties occurring prior to a specified time
before the expiration of the ground lease). Until
the principal balance and accrued interest rate
are paid in full, neither the lessee nor the
lessor under the ground lease will have the option
to terminate or modify the ground lease without
prior written consent of the mortgagee as a result
of any casualty or partial condemnation, except to
provide for an abatement of the rent; and
(L) The ground lease requires the lessor to enter into
a new lease upon the termination of the ground
lease or upon rejection of the ground lease in a
bankruptcy proceeding;
(xxxv) If, as of the Cut-off Date, the Mortgaged Property has
earthquake, windstorm or flood insurance, such insurance
is required to be maintained until the principal balance
of the related Mortgage Loan is paid in full;
(xxxvi) Except with respect to Split Loans, other loans that are
cross-collateralized or cross-defaulted with the
Mortgage Loan are included in the Mortgage Pool;
(xxxvii) Neither the Seller nor any affiliate thereof has any
obligation or right to make any capital contribution to
the Borrower under the Mortgage Loan, other than
contributions made on or prior to the Closing Date;
(xxxviii) The Borrower is not an affiliate of a Borrower under
any other Mortgage Loan;
(xxxix) Upon receipt of the Purchase Price, the Seller has no
right of set-off with respect to the transfer of the
Mortgage Loans to the Company;
(xl) With respect to each Mortgage Loan originated by
Bloomfield:
(A) The Mortgage Loan was underwritten in accordance
with standards established by the Seller, using
application forms and related credit documents
approved by the Seller;
(B) The Seller approved each application and related
credit documents before a commitment by Bloomfield
was issued, and no such commitment was issued
until the Seller agreed to fund such loan;
(C) The closing documents for such Mortgage Loan were
prepared on forms approved by the Seller, and
reflect the Seller as the successor and assign to
Bloomfield; and
(D) Such Mortgage Loan was actually funded by the
Seller, and was assigned to the Seller at the
closing;
(xli) With respect to each Mortgage Loan secured by a
Credit Lease:
(A) The rental payments under the Credit Lease are
equal to or greater than the payments due under
the loan documents, and are payable without notice
or demand, and without set-off, counterclaim,
recoupment, abatement, reduction or defense;
(B) The obligations of the Credit Tenant under the
Credit Lease, including, but not limited to, the
obligation of the Credit Tenant to pay fixed and
additional rent, are not affected by reason of any
damage to or destruction of any portion of the
leased property, any taking of the leased property
or any part thereof by condemnation or otherwise,
or any prohibition, limitation, interruption,
cessation, restriction, prevention or interference
of the Credit Tenant's use, occupancy or enjoyment
of the leased property, provided, however, that
the Credit Lease may permit a lease termination in
any such event if notice by the Credit Tenant of
such termination is accompanied by the exercise of
an option to purchase the Mortgaged Property for
at least the principal balance of the Mortgage
Loans plus accrued interest;
(C) All of the Credit Leases are Bondable Leases
(i.e., the related Credit Tenant has no right to
terminate or abate rent, even in the event of a
casualty or condemnation or the failure of the
related Borrower to perform required maintenance,
repairs or replacement with respect to the related
Credit Tenant Property);
(D) The Borrower does not have any monetary
obligations under the 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,
ground rents, payments under any easement
agreements affecting the Mortgaged Property,
maintenance and repairs) is an obligation of the
Credit Tenant;
(E) The Borrower does not have any continuing
non-monetary obligations under the Credit Lease,
the performance of which would involve a material
expenditure of funds or the non-performance of
which would entitle the Credit Tenant to terminate
the related Credit Lease;
(F) The Borrower has not made any false representation
or warranty under the Credit Lease that would
impose any material monetary obligation upon the
Borrower or any landlord or result in the
termination of the Credit Lease;
(G) The Credit Tenant cannot terminate the Credit
Lease for any reason, prior to the payment in full
of or the payment of funds sufficient to pay in
full (i) the principal balance of the Mortgage
Loan, (ii) all accrued and unpaid interest on the
Mortgage Loan, and (iii) any other sums due and
payable under the Mortgage Loan, as of the related
termination date, except for a default by the
related Borrower under the Credit Lease;
(H) In the event the Credit Tenant assigns or sublets
the leased property, the Credit Tenant remains
primarily obligated under the Credit Lease;
(I) The 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 caused by the Credit
Tenant and arising after commencement of the
Credit Lease;
(J) To the Seller's knowledge, the Credit Lease
contains customary and enforceable provisions
which render the rights and remedies of the lessor
thereunder adequate for the enforcement and
satisfaction of the lessor's rights thereunder;
(K) In reliance on a tenant estoppel certificate and
representations made by the Credit Tenant under
the Credit Lease or representations made by the
related Borrower under the Mortgage Loan
documents, as of the closing date of each Credit
Lease Loan
(1) the Credit Lease was in full force and
effect, and no default by the Borrower or
the Tenant has occurred under the Credit
Lease, nor is there any 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 Credit Lease;
(2) none of the terms of the Credit Lease have
been impaired, waived, altered or modified
in any respect (except as described in the
related tenant estoppel) and the Credit
Lease Loan provides that the related Credit
Lease cannot be modified without the consent
of the Seller;
(3) no Credit Tenant has been released in whole
or in part, from its obligations under the
Credit Lease;
(4) there is no current right of rescission,
offset, abatement, diminution, defense or
counterclaim to any Credit Lease, nor will
the operation of any of the terms of the
Credit Leases, or the exercise of any rights
thereunder, render the Credit Lease
unenforceable (in whole or in part), or
subject to any right of rescission, offset,
abatement, diminution, defense or
counterclaim and no such right or claim has
been asserted with respect thereto;
(5) the Credit Lease has a term ending on or
after the final maturity of the related
Credit Lease Loan, and each Credit Lease
Loan is fully-amortizing from rent payments
received during the term of the Credit
Lease; and
(6) there is no balloon payment due under the
Credit Lease Loan;
(L) The Mortgaged Property is not subject to any
recorded lease other than the related Credit
Lease, no Person has any possessory interest in,
or right to occupy, the Mortgaged Property, except
under and pursuant to such Credit Lease and the
Credit Tenant under the related Credit Lease, or
its wholly-owned subsidiary, is in occupancy of
the Mortgaged Property;
(M) Each Credit Tenant has agreed to notify the Seller
of any event of default under the related Credit
Lease and to provide the Seller with additional
time and an opportunity to cure;
(N) The Credit Tenant under a Credit Lease is required
to make all rental payments directly to the Seller
(or an account controlled by Seller), its
successors and assigns;
(O) The Credit Lease Loan provides that the related
Credit Lease cannot be modified without the
consent of the Seller thereunder;
(P) The credit lease assignment creates a valid first
priority security interest in favor of the Seller,
its successors and assigns, in rights under the
Credit Lease, including the right to monthly lease
payments and, to the extent payable under each
Credit Lease, additional rent due under the
related Credit Lease;
(Q) No person owns any interest in any payments due
under such Credit Lease other than the Borrower;
(R) The Credit Lease is subordinate in right to the
related Mortgage;
(S) In the event the Trustee acquires title to a
Credit Lease Property by foreclosure or otherwise,
the Borrower's interest under the related Credit
Lease is freely assignable by the Trustee and its
successors and assigns to any person without the
consent of the Credit Tenant, and in the event the
Borrower's interest is so assigned, the Credit
Tenant will be obligated to recognize the assignee
as lessor under such Credit Lease;
(T) The Credit Lease Loan is not secured by a property
under construction or substantial rehabilitation;
(U) The Interest Rate on the Credit Lease Loan is a
fixed rate;
(V) In the event that the obligation of the Credit
Tenant under the Credit Lease is guaranteed by a
rated parent or affiliate of the Credit Tenant,
(i) such guaranty is legal, valid and binding
against the guarantor; (ii) such guarantor has
also executed or acknowledged in writing, with
respect to the Mortgage, a subordination,
non-disturbance agreement and assignment to the
Trustee; (iii) the guaranty is unconditional,
irrevocable and absolute, without any right of
offset, counterclaim or defenses; (iv) the
guaranty provides that it is a guaranty of both
the performance and payment of the financial
obligations of the Credit Tenant, and not only of
collection; and (v) the guaranty is binding on the
guarantor, its successors and assigns and may not
be amended or released without the Trustee's
consent;
(W) The Credit Lease Property has a permanent
certificate of occupancy, if required, and the
Credit Tenant has commenced lease payments;
(X) The Credit Tenant has agreed to indemnify the
Borrower from any claims of any nature relating to
the Credit Lease Loan and the Mortgaged Property;
(Y) The Credit Tenant has agreed to deposit rent
directly into a Lock Box Account controlled by the
Servicer;
(Z) With respect to each Credit Lease Loan that has a
residual value insurance policy:
(1) Each Credit Lease Loan that has a balloon
payment due has a noncancellable residual
value insurance policy for which the premium
has been paid in full as of the policy
effective date (which is on or prior to the
Closing Date) and the policy cannot be
terminated (except under certain
circumstances specified in the policies)
prior to the date on which the outstanding
principal balance of the Credit Lease Loan
is reduced to zero;
(2) The residual value insurance policy (and
certain terms therein) in effect for each
Credit Lease Loan is as set forth on Exhibit
D hereto;
(3) The Trustee and its assigns are designated
as the loss payee under such residual value
insurance policy and all proceeds under such
policy are payable to the loss payee;
(4) The insured amount under the residual value
policy is equal to or greater than the
scheduled balloon payment;
(5) The residual value policy cannot be amended
without the prior written consent of the
Trustee; and
(6) The proceeds under the residual value
insurance policy are payable no later than
the lease termination date (or if the lease
termination date is not a business day, then
the first business day thereafter) (the
"Termination Date"), provided that all
payments except the balloon payment have
been made, and provided further that (i) in
the case of policies issued by R.V.I.
America Insurance Company, a Notice of Final
Claim has been delivered to the insurer by
the loss payee during the period between the
45th business day before the Termination
Date and the tenth business day before the
Termination Date, and (ii) in the case of
policies issued by Financial Structures
Limited, a valid Notice of Claim has been
delivered during the period between the 10th
day before the Termination Date and the 30th
day after the Termination Date;
(xlii) If the Mortgaged Property is improved by a hotel, the
Seller has filed and/or recorded (or sent for filing
and/or recording on the closing date of the related
Mortgage Loan) Uniform Commercial Code financing
statements on all furniture, fixtures, equipment and all
other personal property used in the operation of the
hotel facility;
(xliii) The Borrower is organized under the laws of a state or
commonwealth of the United States;
(xliv) Except for documents which have been submitted for
recording but have not been returned by the applicable
recording office (in which case copies of such documents
are being delivered to the Trustee), the Mortgage File
that is being conveyed to the Trustee is materially
complete;
(xlv) The Mortgaged Property (i) is located on or adjacent to
a dedicated road, or has access to an irrevocable
easement permitting ingress and egress, (ii) is served
by public utilities, water and sewer (or septic
facilities), (iii) is a separate tax parcel (or has
reserved funds sufficient to cover taxes for the entire
tax parcel), and (iv) has parking as required under
applicable law;
(xlvi) The Seller has not advanced additional funds for
principal and interest or taxes and insurance (other
than holdbacks at the closing for the related Mortgage
Loan from the proceeds of such loan);
(xlvii) With respect to each Mortgage Loan that is an ARD Loan
(A) The maximum rate increase after the Anticipated
Repayment Date is not greater than 200 basis
points above the original interest rate;.
(B) Such Mortgage Loan begins amortizing no later than
the 11th day of the month following the Cut-off
Date; such Mortgage Loan does not have an interest
only period after the Cut-off Date;
(C) The Anticipated Repayment Date is not less than
seven years from the closing date for such
Mortgage Loan;
(D) Such Mortgage Loan provides that from the
Anticipated Repayment Date through the maturity
date for such Mortgage Loan, all excess cash flow
(net of budgeted and lender approved discretionary
capital expenditures) will be applied to repay
principal due under the Mortgage Loan;
(E) After the Anticipated Repayment Date, the lender
may not exercise default remedies solely because
the borrower fails to pay the difference between
the original interest rate and the new interest
rate; and
(F) The property manager may not be removed for the
sole reason that the Mortgage Loan has passed its
Anticipated Repayment Date;
(xlviii) No advance of funds has been made, directly or
indirectly, by the Seller to the Borrower and no funds
have been received from any person other than the
Borrower for or on account of payments due on the Note
or Mortgage;
(xlix) To the best of the Seller's knowledge, there is no
pending action, suit or proceeding, arbitration or
governmental investigation against the borrower or the
Mortgaged Property an adverse outcome of which would
materially affect such Borrower's performance under the
loan documents or the Certificateholders;
(l) The Note and Mortgage do not require the mortgagee to
release any portion of the Mortgaged Property from the
lien of the Mortgage except upon payment in full of the
Mortgage Loan, or, if applicable, in the event of (A) a
defeasance pursuant to the conditions specified in the
related loan documents, (B) the release of an immaterial
portion of the related Mortgaged Property, (C) the
payment of an Allocated Loan Amount in the event of a
casualty or condemnation, or (D) after the Anticipated
Repayment Date, a partial prepayment of an Allocated
Loan Amount with respect to a portion of the Mortgaged
Property;
(li) With respect to each Mortgage Loan the related loan
documents permit the lender, following a default under
such Mortgage Loan, to apply funds received in respect
of such Mortgage Loan to amounts owing thereunder in the
order which the lender deems appropriate;
(lii) No subordinate financing, other than in the ordinary
course of business, exists or is permitted under the
loan documents;
(liii) The Mortgage Loan contains a provision that the borrower
has no right of offset, counterclaim or defense against
an assignee of such Mortgage Loan;
(liv) With respect to each Split Note:
(A) There is a valid and binding Co-Lender Agreement
in effect with respect to each Split Note and the
related Other Note that is enforceable in
accordance with its terms against all holders of
such notes, including, but not limited to, the
Trustee and the Other Trustee of the Split Note
and the Other Note;
(B) The related Co-Lender Agreement designates a Lead
Lender for the Split Loan that is entitled to
direct the administration of the Split Loan and
has the sole authority to exercise and enforce all
of the lender's rights under the loan documents
for such Split Loan and the holder of the Split
Note is the Lead Lender;
(C) The related Co-Lender Agreement requires that the
Lead Lender (i) administer the Split Loan and
exercise and enforce the lender's rights under the
loan documents, (ii) hold all of the Mortgaged
Property and all insurance maintained thereon or
in connection therewith (including, but not
limited to, property, casualty, business
interruption and residual value insurance) on
behalf, and for the benefit, of the holders of the
Split Note and the Other Note;
(D) The related Co-Lender Agreement provides that all
holders of the Other Note shall be bound by all
determinations made by the Lead Lender with
respect to the administration of the Split Note
and the exercise of all of lender's rights under
the Loan Documents for such Split Note;
(E) With respect to each Split Loan that is related to
a Credit Lease Loan, (1) the Split Note is an
interest only note for an initial period and
either fully-amortizing thereafter or requires a
balloon payment and has a residual value insurance
policy or a surety bond, (2) the Other Note will
pay principal and interest during such initial
period and be due and payable at the end of such
initial period, and (3) both Other Note and the
Split Note bear interest at the same rate per
annum;
(F) With respect to each Split Loan that is not a
Credit Lease Loan, the Split Note and the Other
Note have identical terms, except, in certain
cases, the face amount of such notes;
(G) The related Co-Lender Agreement provides that, (i)
prior to the occurrence of an event of default
under the Split Loan, the Lead Lender shall
allocate all cash flow received with respect to
the Split Loan in accordance with the terms of the
Split Note and Other Note, and (ii) upon the
occurrence of a continuing event of default under
the Split Loan, all cash flow received with
respect to principal on the Split Loan from any
source shall be allocated pro rata between the
Split Note and the Other Note; and
(H) The related Co-Lender Agreement requires that only
a trustee under a commercial mortgage-backed
securitization may be designated a Lead Lender
under a Split Loan.
(lv) With respect to a defeasance, the related loan documents
require the following:
(A) As of the date of the defeasance, there is no
Event of Default;
(B) Borrower must provide lender at least thirty (30)
days notice to lender of intent to defease, except
in the case of a partial defeasance to increase
the DSCR in order to avoid termination of the
property manager, which may permit less than
thirty (30) days notice of intent to defease;
(C) On the date the Mortgage Loan is to be released,
the borrower must pay an amount (the "Collateral
Substitution Deposit") equal to:
(1) All accrued and unpaid interest;
(2) All scheduled interest and principal due;
(3) 100% of the outstanding principal balance of
the related Note (or at least 100% of the
Allocated Loan Amount for the portion being
defeased); and
(4) All related costs and expenses related to
the defeasance, including fees paid to
acquire non-callable obligations of the U.S.
Treasury ("Treasuries"), fees incurred in
connection with obtaining an accountant's
comfort letter and fees incurred in
connection with obtaining confirmation from
the Rating Agencies that the defeasance will
not cause a downgrade, qualification or
withdrawal of the then current ratings
assigned to any Class of Certificates;
(D) The borrower (itself or through the Servicer as
its agent) will be required to purchase Treasuries
and perform other duties as specified in the loan
documents, and if the Servicer as agent is to
purchase the Treasuries, the borrower will be
required to deliver cash to the Servicer for that
purpose;
(E) The Loan Documents require, or provide that the
lender may require, that the borrower will be
required to deliver, from an independent public
accountant, a letter that certifies that the cash
flow from the Treasuries will be sufficient to
timely meet all scheduled mortgage payments
(including any balloon payments);
(F) The Loan Documents require, or provide that the
lender may require, that the borrower will be
required to deliver a letter from each Rating
Agency that such defeasance will not cause a
downgrade, qualification or withdrawal of the then
current ratings assigned to any Class of
Certificates;
(G) The borrower will be required to assign its
obligations, together with the Treasuries, to a
special purpose entity set up to assume defeased
Mortgage Loans or the borrower will be required to
remain a special purpose entity.
(H) The borrower will be required to provide an
opinion of counsel to the effect that (1) the
Trust has a perfected security interest in the
Collateral Substitution Deposit, the Treasuries
acquired with such deposit and all proceeds
thereof, under the appropriate state law and (2)
the subsequent assignment and assumption of the
Treasuries and the obligations of the original
borrower to and by the new borrower does not
effect the validity, enforceability or priority of
the first priority perfected security interest
granted to the Trust; and
(I) The lender has the option to require the borrower
to provide (1) an officer's certificate certifying
that all obligations have been met and that the
Mortgage Loan is not in default and (2) such other
documents that the lender may reasonably require
in connection with a defeasance;
(lvi) The Mortgage Loan requires the borrower to provide
updated operating statements and other property related
information, as applicable, to the lender at least
annually;
(lvii) To the Seller's knowledge, the terms of the loan
documents comply in all material respects with all
applicable state or federal laws;
(lviii) The full amount of the Note or at least 125% of the
Allocated Loan Amount for each Mortgaged Property has
been recorded; and
(lix) To the Seller's knowledge, a duly qualified trustee
serves with respect to each Mortgage secured by a deed
of trust.
(c) The Seller has not dealt with any broker, investment banker,
agent or other person (other than the Company, the Underwriters and the
Placement Agents) who may be entitled to any commission or compensation in
connection with the sale to the Company of the Mortgage Loans.
3. NOTICE OF BREACH; CURE AND REPURCHASE. (a) Pursuant to the
Pooling and Servicing Agreement, the Seller and the Company shall be given
notice of (A) any breach of any representation or warranty contained in Section
2(b) (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xii), (xv),
(xvii), (xviii), (xix), (xx), (xxv), (xxviii), (xxix) or (xxx) and (B) any
breach of any representation or warranty contained in Section 2(b) (x), (xiii),
(xiv), (xvi), (xxi), (xxii), (xxiii), (xxiv), (xxvi), (xxvii), (xxxi), (xxxii),
(xxxiii), (xxxiv), (xxxv), (xxxvi), (xxxvii), (xxxviii), (xxxix), (xl), (xli),
(xlii), (xliii), (xliv), (xlv), (xlvi), (xlvii), (xlviii), (xlix), (l), (li),
(lii), (liii), (liv), (lv), (lvi), (lvii), (lviii) and (lix) that materially and
adversely affects the value of such Mortgage Loan or the interests of the
holders of the Certificates therein.
(b) Within 90 days of the receipt of the notice (or with respect to
the representation and warranty contained in Section 2(b)(xxix) or (xxx),
discovery) of a breach provided for in subsection (a), the Seller shall either
(i) repurchase the related Mortgage Loan at the Repurchase Price or (ii)
promptly cure such breach in all material respects; PROVIDED, HOWEVER, that in
the event that such breach (other than a breach of Section 2(b)(xxix) or (xxx))
is capable of being cured, as determined by the Servicer or the Special
Servicer, as applicable, but not within such 90 day period and the Seller has
commenced and is diligently proceeding with the cure of such breach within such
90 day period, the Seller shall have an additional 90 days to complete such
cure, PROVIDED, FURTHER, that with respect to such additional 90 day period the
Seller shall have delivered an officer's certificate to the Trustee, the
Servicer and the Special Servicer setting forth the reason such 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 breach will be cured within the additional 90 day
period; and PROVIDED, FURTHER, that the Repurchase Price shall also include
interest at the Advance Rate on any Advances made in respect of the related
Mortgage Loan during such period. Upon any such repurchase of a Mortgage Loan by
the Seller, the Company shall execute and deliver such instruments of transfer
or assignment presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto) and shall deliver the related
Mortgage File to Seller or its designee after receipt of the related repurchase
price. The obligations of the Seller set forth in this Section 3(b) to cure a
breach or repurchase the related Mortgage Loan constitute the sole remedies of
the Company or its assignees with respect to a breach provided for in subsection
(a); PROVIDED, that this limitation shall not in any way limit the Company's
rights or remedies upon breach of any other representation or warranty or
covenant by the Seller set forth in this Agreement.
(c) The Seller hereby acknowledges the assignment by the Company to
the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Holders of the Certificates, of the representations and
warranties contained herein and of the obligation of the Seller to repurchase a
Mortgage Loan pursuant to this Section. The Trustee or its designee may enforce
such obligation as provided in Section 8 hereof.
(d) (i) To induce the Company to enter into this Agreement, NHA
agrees to repurchase from the Company, its successors and permitted assigns, any
Mortgage Loan that the Seller, pursuant to paragraph 3(b), is required to
repurchase but fails to repurchase in connection with a breach of a
representation and warranty stated within this Agreement (a "Repurchase
Obligation.")
(ii) If the Seller fails to satisfy a Repurchase Obligation, the
Company may seek to require NHA to make payment of any Repurchase Obligation
whether or not the Company has proceeded against the Seller or any other obligor
principally or secondarily obligated for any of the Repurchase Obligations.
(iii) NHA's obligations pursuant to this paragraph 3(d) shall
remain in full force and effect and be binding upon NHA and its successors and
permitted assigns until such time as NHA receives written notice of termination
of its obligations herein from the Company, or the Trustee, as assignee;
provided, that termination of NHA's obligation shall not affect or limit NHA's
liability hereunder as to Repurchase Obligations incurred prior to such
termination. If any present or future Repurchase Obligations are guaranteed by
individuals or entities in addition to NHA, the death, release, or discharge, in
whole or part, or the bankruptcy, liquidation, termination, or dissolution, of
one or more of them shall not discharge or affect the liabilities of NHA,
hereunder.
(iv) NHA hereby makes the following representations and
warranties to the Company and the Seller as of the date hereof:
(1) NHA is duly organized and validly existing under the
laws of the jurisdiction of its organization and, if relevant under such
laws, in good standing and has full power and authority to execute,
deliver, and perform its obligations under this Agreement.
(2) The execution, delivery and performance of this
Agreement has been and remains duly authorized by all necessary action and
do not contravene any provision of NHA's constitutive documents, as
amended to date, or any law, regulation, rule, decree, order, judgment, or
contractual restriction binding on NHA or its assets.
(3) All consents, licenses, authorizations, and approvals
of, and registrations and declarations with, any governmental authority or
regulatory body necessary for the due execution, delivery, and performance
of NHA's obligations under this Agreement have been obtained and remain in
full force and effect and all conditions thereof have been duly complied
with, and no other action by, and no notice to or filing with, any
governmental authority or regulatory body is required in connection with
the execution, delivery, or performance of this Agreement; and
(4) NHA's obligations pursuant to this Agreement constitute
the legal, valid, and binding obligations of NHA and are enforceable
against NHA in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership and
other laws of general applicability relating to, or affecting, creditors'
rights and, subject as to enforceability, to equitable principles of
general application.
(v) NHA may not assign its rights, interests or obligations
under this Agreement to any other person or entity without the prior written
consent of the Company or the Trustee. NHA acknowledges that the Company intends
to assign all of its rights and interest hereunder to the Trustee, as trustee on
behalf of the Certificateholders.
4. OPINIONS OF COUNSEL. The Seller hereby covenants to the Company
to, simultaneously with the execution hereof, deliver or cause to be delivered
to the Company opinions of counsel as to various corporate matters in form
satisfactory to the Company.
5. UNDERWRITING. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans, reasonably requested by the Company in order to perform any of
its obligations or satisfy any of the conditions on its part to be performed or
satisfied pursuant to the Underwriting Agreement or the Purchase Agreement at or
prior to the Closing Date.
6. COSTS. The Company shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement including
without limitation (i) any recording fees or fees for title policy endorsements
and continuations, (ii) the expenses of preparing, printing and reproducing the
Prospectus Supplement, the Underwriting Agreement, the Pooling and Servicing
Agreement, the Offered Certificates and the Private Certificates and (iii) the
cost of delivering the Offered Certificates and the Private Certificates to the
office of the Underwriters or the purchaser of the such certificates, as
applicable, insured to the satisfaction of the Underwriters or such purchaser,
as applicable.
7. NOTICES. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Company, will be mailed, hand
delivered or delivered by facsimile with receipt confirmed to 2 World Financial
Center - Building B, 18th Floor, New York, New York 10281-1198, Attention: Legal
Department, or, if sent to the Seller, will be mailed, hand delivered or
delivered by facsimile with receipt confirmed to 2 World Financial Center -
Building B, 18th Floor, New York, New York 10281-1198, Attention: Legal
Department, or, if sent to CCA or NHA, will mailed, hand delivered or delivered
by facsimile with receipt confirmed to 2 World Financial Center - Building B,
New York, New York 10281-1198, Attention Treasurer's Office, cc: Legal
Department.
8. TRUSTEE BENEFICIARY. The representations, warranties and
agreements made by the Seller and NHA in this Agreement are made for the benefit
of, and may be enforced by or on behalf of, the Trustee and the Holders of
Certificates to the same extent that the Company has rights against the Seller
and NHA under this Agreement in respect of representations, warranties and
agreements made by the Seller herein and such representations and warranties
shall survive delivery of the respective Mortgage Files to the Trustee until the
termination of the Pooling and Servicing Agreement.
9. MISCELLANEOUS. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK. 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 Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Section 10.07 of
the Pooling and Servicing Agreement. 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 8
hereof.
<PAGE>
IN WITNESS WHEREOF, the Company and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
ASSET SECURITIZATION CORPORATION
By: _______________________________
Name:
Title:
THE CAPITAL COMPANY OF AMERICA LLC
By: _______________________________
Name:
Title:
ACKNOWLEDGED AND AGREED
as of the day and year first above written
with respect to paragraphs 3(d) and 8.
NOMURA HOLDING AMERICA INC.
By:________________________________________
Name:
Title:
<PAGE>
EXHIBIT A
Mortgage Loans Sold By The Capital Company of America LLC
------------------------------------------------------------
MORTGAGE LOAN LOAN NUMBER
------------------------------------------------------------
Bayside Expo Center 15959
------------------------------------------------------------
Regal Cinema - Medina 20695
------------------------------------------------------------
<PAGE>
EXHIBIT H-2
NHA MORTGAGE LOAN
PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (the "AGREEMENT")
dated as of October 11, 1999, is between Asset Securitization Corporation, a
Delaware corporation (the "COMPANY"), and Nomura Holding America Inc., a
Delaware corporation ("NHA," and in such capacity, the "SELLER"). The Seller
agrees to sell and the Company agrees to purchase (i) the mortgage loans (other
than the Mortgage Loans as identified on Exhibit A hereto, which will be
transferred to the Company pursuant to a mortgage loan purchase and sale
agreement, dated as of the date hereof between the Company and The Capital
Company of America LLC ("CCA"), an affiliate of the Company and the Seller) as
described and set forth in the Mortgage Loan Schedule attached as Exhibit B to
the Pooling and Servicing Agreement dated as of October 11, 1999 (the "POOLING
AND SERVICING AGREEMENT"), among the Company, BNY Asset Solutions LLC, as
servicer (the "SERVICER"), Lennar Partners, Inc., as special servicer (the
"SPECIAL SERVICER"), LaSalle Bank National Association, as trustee (the
"TRUSTEE") and ABN AMRO Bank N.V., as fiscal agent, relating to the issuance of
the Commercial Mortgage Asset Trust, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2 (the "CERTIFICATES") and (ii) the Loan REMIC
Interests (as defined in the Pooling and Servicing Agreement and, collectively
with the Mortgage Loans, the "MORTGAGE ASSETS") created pursuant to the REMIC
Declarations (as defined in the Pooling and Servicing Agreement). The
Certificates will consist of twenty-one classes: the "Class A-1 Certificates,"
the "Class A-2 Certificates," the "Class A-3 Certificates," the "Class CS-1
Certificates", the "Class X Certificates," the "Class B Certificates," the
"Class C Certificates," the "Class D Certificates," the "Class E Certificates"
and the "Class F Certificates" (collectively, the "OFFERED CERTIFICATES"), and
the "Class G Certificates," the "Class H Certificates," the "Class J
Certificates," the "Class K Certificates," the "Class L Certificates," the
"Class M Certificates," the "Class N Certificates," the "Class Q-1
Certificates," the "Class Q-2 Certificates," the "Class R Certificates" and the
"Class LR Certificates" (collectively, the "Private Certificates" and together
with the Offered Certificates the "CERTIFICATES"). Capitalized terms used
without definition herein shall have the respective meanings assigned to them in
the Pooling and Servicing Agreement or, if not defined therein, in the
Underwriting Agreement, dated October 15, 1999, by and among the Company, NHA
and CCA and Goldman, Sachs & Co. ("GOLDMAN") and Nomura Securities
International, Inc. ("NSI"), as representatives of the underwriters identified
therein (collectively, the "UNDERWRITERS"), as amended by Amendment No. 1 to the
Underwriting Agreement, dated as of October 15, 1999, by and among the Company,
NHA, CCA and Goldman and NSI (the "UNDERWRITING AGREEMENT"). The mortgage loans
sold pursuant to this Agreement are referred to herein as the "MORTGAGE LOANS."
1. PURCHASE PRICE; PURCHASE AND SALE. The purchase price (the
"PURCHASE PRICE") for the Mortgage Assets shall be an amount agreed upon by the
parties in a separate writing, which amount shall be payable by the Company to
the Seller on the Closing Date in immediately available funds. The closing for
the purchase and sale of the Mortgage Assets shall take place at the offices of
Cadwalader, Wickersham & Taft, New York, New York, at 10:00 a.m. New York time,
on the Closing Date.
As of the Closing Date, the Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to the Company, without recourse (except as
expressly provided herein), all the right, title and interest of the Seller in
and to the Mortgage Assets, including all interest and principal due on or with
respect to the Mortgage Assets after 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, primary mortgage or other insurance policies and any and all rights and
obligations of the Seller as lender under the Mortgage Loans to establish or
designate successor borrowers in connection with the defeasance of the Mortgage
Loans, which rights and obligations are hereby assumed by the Company.
In addition, as of the Closing Date, the Seller hereby transfers,
assigns, sets over and otherwise conveys to the Company all the right, title and
interest of the Seller in and to the mortgage loan purchase agreement (the
"BLOOMFIELD MORTGAGE LOAN PURCHASE AGREEMENT"), dated as of May 16, 1994, by and
between Nomura Asset Capital Corporation ("NACC") and Bloomfield Acceptance
Company, LLC ("BLOOMFIELD"), as assigned to NHA, insofar as such rights relate
to the Mortgage Loans including, but not limited to, the obligations of
Bloomfield pursuant to the Bloomfield Mortgage Loan Purchase Agreement to
repurchase Mortgage Loans with respect to which there exists a breach of one or
more of Bloomfield's representations and warranties made in the Bloomfield
Mortgage Loan Purchase Agreement. The Company hereby directs the Seller, and the
Seller hereby agrees, to deliver to the Trustee all documents, instruments and
agreements required to be delivered by the Company to the Custodian on behalf of
the Trustee under the Pooling and Servicing Agreement and such other documents,
instruments and agreements as the Company or the Trustee shall reasonably
request.
2. REPRESENTATIONS AND WARRANTIES. (a) The Seller hereby represents
and warrants to the Company as of the Closing Date that:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware with full power and authority to carry
on its business as presently conducted by it;
(ii) The Seller has taken all necessary action to authorize
the execution, delivery and performance of this
Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all the
transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and
transfer the Mortgage Assets in accordance with this
Agreement;
(iii) Assuming the due authorization, execution and delivery
of this Agreement by the Company, this Agreement and all
of the obligations of the Seller hereunder are the
legal, valid and binding obligations of the Seller,
enforceable in accordance with the terms of this
Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or
affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity
or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Seller
does 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
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, which would materially and adversely affect
the ability of the Seller to carry out the transactions
contemplated by this Agreement. The Seller has obtained
any consent, approval, authorization or order of any
court or governmental agency or body required for the
execution, delivery and performance by the Seller of
this Agreement;
(v) There is no action, suit or proceeding pending against
the Seller in any court or by or before any other
governmental agency or instrumentality which would
materially and adversely affect the ability of the
Seller to carry out its obligations under this Agreement
or have a material adverse effect on the financial
condition of the Seller or the ability of the Seller to
perform its obligations under this Agreement; and
(vi) At the time the Mortgage Loan was originated and as of
the date hereof, the Originator was and is approved by
the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act.
(b) The Seller hereby represents and warrants with respect to each
Mortgage Loan that as of the date specified below or, if no such date is
specified, as of the Closing Date (except as otherwise described in Exhibit B
hereto):
(i) Immediately prior to the sale, transfer and assignment
to the Company, each related Note and Mortgage was not
subject to an assignment (other than to the Seller) or
pledge, and the Seller had good and marketable title to,
and was the sole owner of, the Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign
and transfer such Mortgage Loan and the assignment to
the Company constitutes a legal, valid and binding
assignment of such Mortgage Loan. Each related Note and
Mortgage contain no provision limiting the right or
ability of the Depositor to assign transfer and convey
the Note or Mortgage to any other person or entity;
(iii) The Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan,
subject to the matters described in clause (xi) below;
(iv) Each Note, Mortgage, Assignment of Leases, Rents and
Profits (if any) and other material agreement executed
in connection with such Mortgage Loan was, at the time
of origination, legal, valid and binding obligations of
the related Borrower, enforceable in accordance with
their terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors'
rights generally, or by general principles of equity
(regardless of whether such enforceability is considered
in a proceeding in equity or at law) and to the best of
the Seller's knowledge, there is no valid defense,
counterclaim, right of rescission or right of set-off or
abatement available to the related Borrower with respect
to such Note, Mortgage and other material agreements;
(v) The Assignment of Leases, Rents and Profits, if any,
creates a valid, collateral or first priority assignment
of, or a valid first priority security interest in,
certain rights under the related lease, subject only to
a license granted to the related Borrower to exercise
certain rights and to perform certain obligations of the
lessor under such lease, including the right to operate
the related Mortgaged Property; no person other than the
related Borrower owns any interest in any payments due
under such lease that is superior to or of equal
priority with the mortgagee's interest therein;
(vi) Each related assignment of Mortgage from the Seller to
the Company and any related Reassignment of Assignment
of Leases, Rents and Profits, if any, or assignment of
any other agreement executed in connection with such
Mortgage Loan, from the Seller to the Company
constitutes the legal, valid and binding assignment from
the Seller to the Company, except as such enforcement
may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights
generally, or by general principles of equity
(regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the
related Mortgage File (but in no event inconsistent with
the Mortgage Loan Schedule), the Mortgage Loan has not
been waived, modified, altered, satisfied, canceled,
subordinated or rescinded and, the related Mortgaged
Property has not been released from the lien of the
related Mortgage in any manner which materially
interferes with the security intended to be provided by
such Mortgage;
(viii) Each Mortgage is a valid and enforceable first priority
lien on the related Mortgaged Property, and such
Mortgaged Property (subject to the matters described in
clause (xi) below) is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are
insured against by a lender's title insurance policy (as
described below);
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related
Borrower in the Mortgage Loan not to be true in any
material respect;
(x) The Seller has no knowledge that the representations and
warranties made by each related Borrower in such
Mortgage Loan are not true in any material respect;
(xi) The lien of each Mortgage is insured by an ALTA lender's
title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Originator, its
successors and assigns, or the holder of the related
Note as to a valid and first priority lien of the
Mortgage in at least the original principal amount of
such Mortgage Loan or Allocated Loan Amount of the
related Mortgaged Property (as set forth on the Mortgage
Loan Schedule which is an exhibit to the Pooling and
Servicing Agreement), subject only to (a) the lien of
current real property taxes, ground rents, water
charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public
record, none of which, individually or in the aggregate,
materially interferes with the current use or operation
of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Borrower's ability
to pay its obligations when they become due or the value
of the Mortgaged Property and (c) the exceptions
(general and specific) set forth in such policy, none of
which, individually or in the aggregate, materially
interferes with the security intended to be provided by
such Mortgage or with the related Borrower's ability to
pay its obligations when they become due or the value,
use or operation of the Mortgaged Property; the
Originator or its successors or assigns is the sole
named insured of such policy; such policy is assignable
to the Company without the consent of or any
notification to the insurer, and is in full force and
effect upon the consummation of the transactions
contemplated by this Agreement; no claims have been made
under such policy and the Seller has not done anything,
by act or omission, and the Seller has no knowledge of
any matter, which would impair or diminish the coverage
of such policy; to the extent required by applicable
law, the insurer issuing such policy is qualified to do
business in the jurisdiction in which the related
Mortgaged Properties are located;
(xii) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future
advances thereunder and the Seller covenants that it
will not make any future advances under the Mortgage
Loan to the related Borrower;
(xiii) The Mortgaged Property is free of any material damage
that would affect materially and adversely the value of
such Mortgaged Property as security for the Mortgage
Loan, is in good repair and there is no proceeding
pending for the total or partial condemnation of such
Mortgaged Property;
(xiv) The Borrower is in possession of all material licenses,
permits and other authorizations necessary and required
by all applicable laws for the conduct of its business
and all such licenses, permits and authorizations are
valid and in full force and effect, and if the Mortgaged
Property is improved by a hotel, the most recent
inspection or review by the franchisor, if any, did not
cite such Mortgaged Property for material violations of
the related franchise agreement which have not been
cured;
(xv) The Seller has inspected or caused to be inspected the
Mortgaged Property (except certain of the Credit Lease
Properties) within the past 12 months preceding the
Cut-off Date or within 1 month of origination of the
Mortgage Loan;
(xvi) Except for ARD Loans (with respect to which interest
accrues on Excess Interest and the priority of repayment
of Excess Interest follows principal), the Mortgage Loan
does not have a shared appreciation feature, other
contingent interest feature or negative amortization;
(xvii) The Mortgage Loan is a whole loan and no other party
holds an interest in the Mortgage Loan;
(xviii) (A) The Mortgage Rate (exclusive of any default
interest, late charge or yield maintenance charge) of
such Mortgage Loan complied as of the date of
origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements
pertaining to usury; any and all other requirements of
any federal, state or local laws, including, without
limitation, truth-in-lending, real estate settlement
procedures, equal credit opportunity or disclosure laws,
applicable to such Mortgage Loan have been complied with
as of the date of origination of such Mortgage Loan in
all material respects and (B) the Seller has received an
opinion that such Mortgage Loan is not usurious;
(xix) (A) With respect to each Mortgage Loan originated by the
Seller, no fraudulent acts were committed by the Seller
during the origination process of such Mortgage Loan and
the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and
prudent in accordance with customary industry standards
and (B) with respect to each Mortgage Loan originated by
Bloomfield, to the best of the Seller's knowledge, no
fraudulent acts were committed by Bloomfield during the
origination process of such Mortgage Loan and the
origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in
accordance with customary industry standards;
(xx) All taxes and governmental assessments that prior to the
Closing Date became due and owing in respect of each
related Mortgaged Property have been paid or an escrow
of funds in an amount sufficient to cover such payments
has been established;
(xxi) All escrow deposits and payments required pursuant to
the Mortgage Loans are in the possession, or under the
control, of the Seller or its agent and there are no
deficiencies in connection therewith and all such
escrows and deposits have been conveyed by the Seller to
the Company and identified as such with appropriate
detail;
(xxii) To the extent required under applicable law, as of the
Cut-off Date, the Seller was authorized to transact and
do business in the jurisdiction in which each related
Mortgaged Property is located at all times when it held
the Mortgage Loan;
(xxiii) (A) The Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an
insurer meeting the requirements under the related
Mortgage Loan in an amount not less than the
replacement cost and the amount necessary to avoid
the operation of any co-insurance provisions with
respect to the Mortgaged Property, except with
respect to certain portions of certain Mortgaged
Properties in which a Credit Tenant self-insures
for its portion of such Mortgaged Property;
(B) The Mortgaged Property is covered by business
interruption insurance (for at least 12 months of
rent interruptions) and each Mortgaged Property is
covered by comprehensive general liability
insurance in amounts generally required by
institutional lenders for similar properties;
(C) Each Mortgaged Property is insured by a flood
insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are
located in an area identified by the Federal
Emergency Management Agency as having special
flood hazards);
(D) The Mortgage Loan is covered by worker's
compensation insurance to the extent required by
law;
(E) Each insurance policy contains a standard
mortgagee clause that names the mortgagee and its
successors as an additional insured;
(F) All premiums on any insurance policies required to
be paid as of the date hereof have been paid;
(G) The insurance policies require prior notice to the
insured of termination or cancellation, and no
such notice has been received; and
(H) Each related Mortgage or Loan Agreement obligates
the related Borrower to maintain all such
insurance and, at such Borrower's failure to do
so, authorizes the mortgagee to maintain such
insurance at the Borrower's cost and expense and
to seek reimbursement therefor from such Borrower;
(xxiv) There is no default, breach, violation or event of
acceleration existing under the related Mortgage or the
related Note and, to the Seller's knowledge, no event
which, with the passage of time or with notice and the
expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of
acceleration;
(xxv) The Mortgage Loan has not been 30 days or more
delinquent in the payment of principal and/or interest
since origination and as of the Cut-off Date was not
delinquent;
(xxvi) The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of
the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security,
including realization by judicial or, if applicable,
non-judicial foreclosure, and there is no exemption
available to the Borrower which would interfere with
such right to foreclose. To the best of the Seller's
knowledge, no Borrower is a debtor in a state or federal
bankruptcy or insolvency proceeding;
(xxvii) The related Borrower represents and warrants in the
Mortgage or Loan Agreement that, except as set forth in
certain environmental reports or other documents (which
documents have been previously provided to the Rating
Agencies) and to the best of its knowledge, it has not
used, caused or permitted to exist and will not use,
cause or permit to exist on the Mortgaged Property any
Hazardous Materials in any manner which violates
federal, state or local laws, ordinances, regulations,
orders, directives or policies governing the use,
storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of
Hazardous Materials; the Borrower agrees to indemnify,
defend and hold the mortgagee and its successors and
assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines,
expenses, and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered
by, or asserted against, any such party resulting from a
breach of certain representations, warranties or
covenants given by the Borrower in such Mortgage or Loan
Agreement. A Phase I environmental report was conducted
by a reputable environmental engineer in connection with
the origination of the Mortgage Loan, which report does
not indicate any material non-compliance or material
existence of Hazardous Materials, except as disclosed to
Seller in environmental reports or summaries of such
reports. To the best of the Seller's knowledge, the
Mortgaged Property is in material compliance with all
applicable federal, state and local laws pertaining to
environmental hazards, and to the best of Seller's
knowledge, no notice of violation of such laws has been
issued by any governmental agency or authority, except
as disclosed to Seller in environmental reports or
summaries of such reports; the Seller has not taken any
action which would cause the related Mortgaged Property
not to be in compliance with all federal, state and
local laws pertaining to environmental hazards;
(xxviii) The Mortgage or Loan Agreement contains provisions for
the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without complying with
the requirements of the Mortgage or Loan Agreement or
obtaining the prior written consent of the Mortgagee or
the satisfaction of certain conditions, the related
Mortgaged Property, or any interest therein, is directly
or indirectly transferred or sold, or encumbered in
connection with subordinate financing and each related
Mortgage prohibits the pledge or encumbrance of the
Mortgaged Property without the consent of the holder of
the Mortgage Loan;
(xxix) (1) The Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential
property, and (2) either (i) substantially all of the
proceeds of such Mortgage Loan were used to acquire,
improve or protect an interest in real property that, at
the origination date, was the only security for the
Mortgage Loan (in the case of a Mortgage Loan that has
not been "significantly modified" in a manner that
constituted a deemed exchange under Section 1001 of the
Code at the time when the Mortgage Loan was not in
default or default with respect thereto was not
reasonably foreseeable) or (ii) the fair market value of
such real property as set forth in an independent
appraisal or market study was at least equal to 80% of
the principal amount of the Mortgage Loan (a) at
origination (or if the Mortgage Loan has been
"significantly modified" in a manner that constituted a
deemed exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or default
with respect thereto was not reasonably foreseeable, the
date of the last such modification) or (b) at the
Closing Date; provided that for purposes of this clause
(ii) the fair market value of the real property interest
must first be reduced by (A) the amount of any lien on
the real property interest that is senior to the
Mortgage Loan (unless such senior lien also secures a
Mortgage Loan, in which event the computations described
in (a) and (b) of this clause (ii) shall be made on an
aggregate basis) and (B) a proportionate amount of any
lien that is in parity with the Mortgage Loan (unless
such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which
event the computation described in (a) and (b) shall be
made on an aggregate basis). All improvements included
for the purpose of determining the Appraised Value of
the Mortgaged Property are within the boundaries of the
related Mortgaged Property (other than de minimis
encroachments that the Seller has obtained title
insurance against the losses arising therefrom);
(xxx) (A) The Mortgage Loan constitutes a "qualified
mortgage" within the meaning of Section 860G(a)(3)
of the Code (but without regard to the rule in
Treasury Regulations 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or
any substantially similar successor provision);
(B) With respect to each Mortgage Loan, the Prepayment
Premium (including any Return of Premium Amount)
constitutes a customary prepayment penalty for
mortgage loans similar to such Mortgage Loan; and
(C) If the Mortgage Loan provides for the defeasance
of mortgage collateral, the Loan Documents permit
defeasance (a) no earlier than two years after the
Closing Date (or, if earlier, two years following
the "startup day," within the meaning of Code
Section 860G (a)(9), of a REMIC of which the
Mortgage Loan (not including any Other Note) is an
asset), (b) only with substitute collateral
constituting "government securities" within the
meaning of Treasury Regulations 1.860G-2(a)(8)(i)
and (c) only to facilitate the disposition of the
Mortgaged Property and not as part of an
arrangement to collateralize a REMIC offering with
obligations that are not real estate mortgages;
(D) If the Mortgage Loan provides for the defeasance
of mortgage collateral, the Loan Documents permit
defeasance (a) no earlier than two years after the
Closing Date (or, if earlier, two years following
the "startup day" within the meaning of Code
Section 860G (a)(9), of a REMIC of which the
Mortgage Loan (not including any Other Note) is an
asset), (b) only with substitute collateral
constituting "government securities" within the
meaning of Treasury Regulations 1.860G-2(a)(8)(i)
and (c) only to facilitate the disposition of the
Mortgaged Property and not as part of an
arrangement to collateralize a REMIC offering with
obligations that are not real estate mortgages;
(xxxi) The mortgage loan schedule which is an exhibit to the
Pooling and Servicing Agreement is complete and accurate
in all material respects;
(xxxii) The Mortgaged Property is in compliance, in all material
respects, with all applicable laws, zoning ordinances,
rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such
Mortgaged Property; provided that several Mortgaged
Properties constitute a legal nonconforming use or
structure. All inspections, licenses and certificates
required, including certificates of occupancy (if
applicable), whether by law, ordinance, regulation or
insurance standards to be made or issued with regard to
the Mortgaged Property, have been obtained and are in
full force and effect;
(xxxiii) (A) The related Borrower is an entity whose
organizational documents provide that it is, and
at least so long as the Mortgage Loan is
outstanding will continue to be, a single-purpose
entity. (For this purpose, "single-purpose entity"
shall mean a person, other than an individual,
which is formed or organized solely for the
purpose of owning and operating the Mortgaged
Property and does not engage in any business
unrelated to such property and its financing);
(B) A non-consolidation opinion was obtained for each
Borrower or group of affiliated Borrowers in which
the Cut-off Date Principal Balance of the Mortgage
Loan or Loans, as applicable, have an aggregate
Cut-off Date Principal Balance in excess of
$20,000,000;
(C) The organizational documents for each Borrower (or
group of affiliated Borrowers) under a Mortgage
Loan or Loans having a Cut-off Date Principal
Balance (or aggregate Cut-off Date Principal
Balance) in excess of $25,000,000 require that the
Board of Directors of the Borrower or Borrowers,
as applicable, its corporate general partner, or
managing member, as applicable, include an
independent director;
(xxxiv) Each Mortgaged Property consists entirely of the related
Mortgagor's fee simple estate in real estate, except
with respect to Marina Pacifica Loan, Mall of Orange
Loan and the Calaveras Center Loan which consists either
partially or entirely of the related Mortgagor's
interest under a ground lease. If a material portion of
the estate of the related Borrower is a leasehold estate
and the fee interest of the ground lessor is not subject
and subordinate to the related Mortgage, the Seller
represents and warrants that:
(A) The ground lease or a memorandum regarding it has
been duly recorded. The ground lease permits the
interest of the lessee to be encumbered by the
related Mortgage and does not restrict the use of
the related Mortgaged Property by such lessee, its
successors or assigns in a manner that would
adversely affect the security provided by the
related Mortgage. There has been no material
change in the terms of such ground lease since its
recording, except by written instruments, all of
which are included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in
writing and included in the related Mortgage File
that the ground lease may not be amended,
modified, canceled or terminated without the prior
written consent of the mortgagee;
(C) The ground lease has an original term (or an
original term plus one or more optional renewal
terms, which, under all circumstances, may be
exercised, and will be enforceable, by the
mortgagee) that extends not less than 10 years
beyond the stated maturity of the related Mortgage
Loan and not less than 20 years beyond the related
Anticipated Repayment Date of the related Mortgage
Loan. Each Mortgage Loan secured by a ground lease
is also an ARD Loan;
(D) The ground lease is prior to any mortgage or other
lien upon the related fee interest and the
landlord has not entered into an agreement to
subordinate the ground lease to future mortgages
or liens on the fee interest;
(E) The ground lease is assignable to the mortgagee
under the leasehold estate and its assigns without
the consent of the lessor thereunder;
(F) As of the date hereof, the ground lease is in full
force and effect and no default has occurred, nor
is there any existing condition which, but for the
passage of time or giving of notice, would result
in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between
the lessor and the lessee requires the lessor to
give notice of any default by the lessee to the
mortgagee;
(H) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to
gain possession of the interest of the lessee
under the ground lease through legal proceedings,
or to take other action so long as the mortgagee
is proceeding diligently) to cure any default
under the ground lease which is curable after the
receipt of notice of any default before the lessor
may terminate the ground lease. All rights of the
mortgagee under the ground lease and the related
Mortgage (insofar as it relates to the ground
lease) may be exercised by or on behalf of the
mortgagee;
(I) The ground lease does not impose any restrictions
on subletting that would be viewed as commercially
unreasonable by an institutional investor. The
lessor is not permitted to disturb the possession,
interest or quiet enjoyment of any subtenant of
the lessee in the relevant portion of the
Mortgaged Property subject to the ground lease for
any reason, or in any manner, which would
adversely affect the security provided by the
related Mortgage;
(J) The ground lease provides that insurance proceeds
or condemnation awards (other than in respect of a
total or substantially total loss or taking) will
be applied either to the repair or restoration of
all or part of the Mortgaged Property with the
mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as repair
or restoration progresses, or, if permitted by the
related ground lease, to the payment of the
outstanding principal balance of the Mortgage
Loan, together with any accrued interest, except
that in the case of condemnation awards, the
ground lessor is entitled to an amount of such
award generally based on the value of the
unimproved land taken;
(K) Under the terms of the ground lease and the
related Mortgage, any related insurance proceeds,
or condemnation award in respect of a total or
substantially total loss or taking of the related
Mortgaged Property will be applied first to the
payment of the outstanding principal balance of
the Mortgage Loan, together with any accrued
interest (except where contrary to applicable law
or in cases where a different allocation would not
be viewed as commercially unreasonable by any
institutional investor, taking into account the
relative duration of the ground lease and the
related Mortgage and the ratio of the market value
of the related Mortgaged Property to the
outstanding principal balance of such Mortgage
Loan and except that certain ground leases may
require insurance proceeds to be applied to the
restoration of the property in respect of
casualties occurring prior to a specified time
before the expiration of the ground lease). Until
the principal balance and accrued interest rate
are paid in full, neither the lessee nor the
lessor under the ground lease will have the option
to terminate or modify the ground lease without
prior written consent of the mortgagee as a result
of any casualty or partial condemnation, except to
provide for an abatement of the rent; and
(L) The ground lease requires the lessor to enter into
a new lease upon the termination of the ground
lease or upon rejection of the ground lease in a
bankruptcy proceeding;
(xxxv) If, as of the Cut-off Date, the Mortgaged Property has
earthquake, windstorm or flood insurance, such insurance
is required to be maintained until the principal balance
of the related Mortgage Loan is paid in full;
(xxxvi) Except with respect to Split Loans, all other loans that
are cross-collateralized or cross-defaulted with the
Mortgage Loan are included in the Mortgage Pool;
(xxxvii) Neither the Seller nor any affiliate thereof has any
obligation or right to make any capital contribution to
the Borrower under the Mortgage Loan, other than
contributions made on or prior to the Closing Date;
(xxxviii) The Borrower is not an affiliate of a Borrower under
any other Mortgage Loan;
(xxxix) Upon receipt of the Purchase Price, the Seller has no
right of set-off with respect to the transfer of the
Mortgage Loans to the Company;
(xl) With respect to each Mortgage Loan originated by
Bloomfield:
(A) The Mortgage Loan was underwritten in accordance
with standards established by the Seller, using
application forms and related credit documents
approved by the Seller;
(B) The Seller approved each application and related
credit documents before a commitment by Bloomfield
was issued, and no such commitment was issued
until the Seller agreed to fund such loan;
(C) The closing documents for such Mortgage Loan were
prepared on forms approved by the Seller, and
reflect the Seller as the successor and assign to
Bloomfield; and
(D) Such Mortgage Loan was actually funded by the
Seller, and was assigned to the Seller at the
closing;
(xli) With respect to each Mortgage Loan secured by a
Credit Lease:
(A) The rental payments under the Credit Lease are
equal to or greater than the payments due under
the loan documents, and are payable without notice
or demand, and without set-off, counterclaim,
recoupment, abatement, reduction or defense;
(B) The obligations of the Credit Tenant under the
Credit Lease, including, but not limited to, the
obligation of the Credit Tenant to pay fixed and
additional rent, are not affected by reason of any
damage to or destruction of any portion of the
leased property, any taking of the leased property
or any part thereof by condemnation or otherwise,
or any prohibition, limitation, interruption,
cessation, restriction, prevention or interference
of the Credit Tenant's use, occupancy or enjoyment
of the leased property, provided, however, that
the Credit Lease may permit a lease termination in
any such event if notice by the Credit Tenant of
such termination is accompanied by the exercise of
an option to purchase the Mortgaged Property for
at least the principal balance of the Mortgage
Loans plus accrued interest;
(C) All of the Credit Leases are Bondable Leases
(i.e., the related Credit Tenant has no right to
terminate or abate rent, even in the event of a
casualty or condemnation or the failure of the
related Borrower to perform required maintenance,
repairs or replacement with respect to the related
Credit Tenant Property);
(D) The Borrower does not have any monetary
obligations under the 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,
ground rents, payments under any easement
agreements affecting the Mortgaged Property,
maintenance and repairs) is an obligation of the
Credit Tenant;
(E) The Borrower does not have any continuing
non-monetary obligations under the Credit Lease,
the performance of which would involve a material
expenditure of funds or the non-performance of
which would entitle the Credit Tenant to terminate
the related Credit Lease;
(F) The Borrower has not made any false representation
or warranty under the Credit Lease that would
impose any material monetary obligation upon the
Borrower or any landlord or result in the
termination of the Credit Lease;
(G) The Credit Tenant cannot terminate the Credit
Lease for any reason, prior to the payment in full
of or the payment of funds sufficient to pay in
full (i) the principal balance of the Mortgage
Loan, (ii) all accrued and unpaid interest on the
Mortgage Loan, and (iii) any other sums due and
payable under the Mortgage Loan, as of the related
termination date, except for a default by the
related Borrower under the Credit Lease;
(H) In the event the Credit Tenant assigns or sublets
the leased property, the Credit Tenant remains
primarily obligated under the Credit Lease;
(I) The 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 caused by the Credit
Tenant and arising after commencement of the
Credit Lease;
(J) To the Seller's knowledge, the Credit Lease
contains customary and enforceable provisions
which render the rights and remedies of the lessor
thereunder adequate for the enforcement and
satisfaction of the lessor's rights thereunder;
(K) In reliance on a tenant estoppel certificate and
representations made by the Credit Tenant under
the Credit Lease or representations made by the
related Borrower under the Mortgage Loan
documents, as of the closing date of each Credit
Lease Loan
(1) the Credit Lease was in full force and
effect, and no default by the Borrower or
the Tenant has occurred under the Credit
Lease, nor is there any 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 Credit Lease;
(2) none of the terms of the Credit Lease have
been impaired, waived, altered or modified
in any respect (except as described in the
related tenant estoppel) and the Credit
Lease Loan provides that the related Credit
Lease cannot be modified without the consent
of the Seller;
(3) no Credit Tenant has been released in whole
or in part, from its obligations under the
Credit Lease;
(4) there is no current right of rescission,
offset, abatement, diminution, defense or
counterclaim to any Credit Lease, nor will
the operation of any of the terms of the
Credit Leases, or the exercise of any rights
thereunder, render the Credit Lease
unenforceable (in whole or in part), or
subject to any right of rescission, offset,
abatement, diminution, defense or
counterclaim and no such right or claim has
been asserted with respect thereto;
(5) the Credit Lease has a term ending on or
after the final maturity of the related
Credit Lease Loan, and each Credit Lease
Loan is fully-amortizing from rent payments
received during the term of the Credit
Lease; and
(6) there is no balloon payment due under the
Credit Lease Loan;
(L) The Mortgaged Property is not subject to any
recorded lease other than the related Credit
Lease, no Person has any possessory interest in,
or right to occupy, the Mortgaged Property, except
under and pursuant to such Credit Lease and the
Credit Tenant under the related Credit Lease, or
its wholly-owned subsidiary, is in occupancy of
the Mortgaged Property;
(M) Each Credit Tenant has agreed to notify the Seller
of any event of default under the related Credit
Lease and to provide the Seller with additional
time and an opportunity to cure;
(N) The Credit Tenant under a Credit Lease is required
to make all rental payments directly to the Seller
(or an account controlled by Seller), its
successors and assigns;
(O) The Credit Lease Loan provides that the related
Credit Lease cannot be modified without the
consent of the Seller thereunder;
(P) The credit lease assignment creates a valid first
priority security interest in favor of the Seller,
its successors and assigns, in rights under the
Credit Lease, including the right to monthly lease
payments and, to the extent payable under each
Credit Lease, additional rent due under the
related Credit Lease;
(Q) No person owns any interest in any payments due
under such Credit Lease other than the Borrower;
(R) The Credit Lease is subordinate in right to the
related Mortgage;
(S) In the event the Trustee acquires title to a
Credit Lease Property by foreclosure or otherwise,
the Borrower's interest under the related Credit
Lease is freely assignable by the Trustee and its
successors and assigns to any person without the
consent of the Credit Tenant, and in the event the
Borrower's interest is so assigned, the Credit
Tenant will be obligated to recognize the assignee
as lessor under such Credit Lease;
(T) The Credit Lease Loan is not secured by a property
under construction or substantial rehabilitation;
(U) The Interest Rate on the Credit Lease Loan is a
fixed rate;
(V) In the event that the obligation of the Credit
Tenant under the Credit Lease is guaranteed by a
rated parent or affiliate of the Credit Tenant,
(i) such guaranty is legal, valid and binding
against the guarantor; (ii) such guarantor has
also executed or acknowledged in writing, with
respect to the Mortgage, a subordination,
non-disturbance agreement and assignment to the
Trustee; (iii) the guaranty is unconditional,
irrevocable and absolute, without any right of
offset, counterclaim or defenses; (iv) the
guaranty provides that it is a guaranty of both
the performance and payment of the financial
obligations of the Credit Tenant, and not only of
collection; and (v) the guaranty is binding on the
guarantor, its successors and assigns and may not
be amended or released without the Trustee's
consent;
(W) The Credit Lease Property has a permanent
certificate of occupancy, if required, and the
Credit Tenant has commenced lease payments;
(X) The Credit Tenant has agreed to indemnify the
Borrower from any claims of any nature relating to
the Credit Lease Loan and the Mortgaged Property;
(Y) The Credit Tenant has agreed to deposit rent
directly into a Lock Box Account controlled by the
Servicer;
(Z) With respect to each Credit Lease Loan that has a
residual value insurance policy:
(1) Each Credit Lease Loan that has a balloon
payment due has a noncancellable residual
value insurance policy for which the premium
has been paid in full as of the policy
effective date (which is on or prior to the
Closing Date) and the policy cannot be
terminated (except under certain
circumstances specified in the policies)
prior to the date on which the outstanding
principal balance of the Credit Lease Loan
is reduced to zero;
(2) The residual value insurance policy (and
certain terms therein) in effect for each
Credit Lease Loan is as set forth on Exhibit
B hereto;
(3) The Trustee and its assigns are designated
as the loss payee under such residual value
insurance policy and all proceeds under such
policy are payable to the loss payee;
(4) The insured amount under the residual value
policy is equal to or greater than the
scheduled balloon payment;
(5) The residual value policy cannot be amended
without the prior written consent of the
Trustee; and
(6) The proceeds under the residual value
insurance policy are payable no later than
the lease termination date (or if the lease
termination date is not a business day, then
the first business day thereafter) (the
"Termination Date"), provided that all
payments except the balloon payment have
been made, and provided further that (i) in
the case of policies issued by R.V.I.
America Insurance Company, a Notice of Final
Claim has been delivered to the insurer by
the loss payee during the period between the
45th business day before the Termination
Date and the tenth business day before the
Termination Date, and (ii) in the case of
policies issued by Financial Structures
Limited, a valid Notice of Claim has been
delivered during the period between the 10th
day before the Termination Date and the 30th
day after the Termination Date;
(xlii) If the Mortgaged Property is improved by a hotel, the
Seller has filed and/or recorded (or sent for filing
and/or recording on the closing date of the related
Mortgage Loan) Uniform Commercial Code financing
statements on all furniture, fixtures, equipment and all
other personal property used in the operation of the
hotel facility;
(xliii) The Borrower is organized under the laws of a state or
commonwealth of the United States;
(xliv) Except for documents which have been submitted for
recording but have not been returned by the applicable
recording office (in which case copies of such documents
are being delivered to the Trustee), the Mortgage File
that is being conveyed to the Trustee is materially
complete;
(xlv) The Mortgaged Property (i) is located on or adjacent to
a dedicated road, or has access to an irrevocable
easement permitting ingress and egress, (ii) is served
by public utilities, water and sewer (or septic
facilities), (iii) is a separate tax parcel (or has
reserved funds sufficient to cover taxes for the entire
tax parcel), and (iv) has parking as required under
applicable law, except as otherwise described in the
exceptions to (xlv);
(xlvi) The Seller has not advanced additional funds for
principal and interest or taxes and insurance (other
than holdbacks at the closing for the related Mortgage
Loan from the proceeds of such loan);
(xlvii) With respect to each Mortgage Loan that is an ARD Loan
(A) The maximum rate increase after the Anticipated
Repayment Date is not greater than 200 basis
points above the original interest rate;.
(B) Such Mortgage Loan begins amortizing no later than
the 11th day of the month following the Cut-off
Date; such Mortgage Loan does not have an interest
only period after the Cut-off Date;
(C) The Anticipated Repayment Date is not less than
seven years from the closing date for such
Mortgage Loan;
(D) Such Mortgage Loan provides that from the
Anticipated Repayment Date through the maturity
date for such Mortgage Loan, all excess cash flow
(net of budgeted and lender approved discretionary
capital expenditures) will be applied to repay
principal due under the Mortgage Loan;
(E) After the Anticipated Repayment Date, the lender
may not exercise default remedies solely because
the borrower fails to pay the difference between
the original interest rate and the new interest
rate; and
(F) The property manager may not be removed for the
sole reason that the Mortgage Loan has passed its
Anticipated Repayment Date;
(xlviii) No advance of funds has been made, directly or
indirectly, by the Seller to the Borrower and no funds
have been received from any person other than the
Borrower for or on account of payments due on the Note
or Mortgage;
(xlix) To the best of the Seller's knowledge, there is no
pending action, suit or proceeding, arbitration or
governmental investigation against the borrower or the
Mortgaged Property an adverse outcome of which would
materially affect such Borrower's performance under the
loan documents or the Certificateholders;
(l) The Note and Mortgage do not require the mortgagee to
release any portion of the Mortgaged Property from the
lien of the Mortgage except upon payment in full of the
Mortgage Loan, or, if applicable, in the event of (A) a
defeasance pursuant to the conditions specified in the
related loan documents, (B) the release of an immaterial
portion of the related Mortgaged Property, (C) the
payment of an Allocated Loan Amount in the event of a
casualty or condemnation, or (D) after the Anticipated
Repayment Date, a partial prepayment of an Allocated
Loan Amount with respect to a portion of the Mortgaged
Property;
(li) With respect to each Mortgage Loan the related loan
documents permit the lender, following a default under
such Mortgage Loan, to apply funds received in respect
of such Mortgage Loan to amounts owing thereunder in the
order which the lender deems appropriate;
(lii) No subordinate financing, other than in the ordinary
course of business, exists or is permitted under the
loan documents;
(liii) The Mortgage Loan contains a provision that the borrower
has no right of offset, counterclaim or defense against
an assignee of such Mortgage Loan;
(liv) With respect to each Split Note:
(A) There is a valid and binding Co-Lender Agreement
in effect with respect to each Split Note and the
related Other Note that is enforceable in
accordance with its terms against all holders of
such notes, including, but not limited to, the
Trustee and the Other Trustee of the Split Note
and the Other Note;
(B) The related Co-Lender Agreement designates a Lead
Lender for the Split Loan that is entitled to
direct the administration of the Split Loan and
has the sole authority to exercise and enforce all
of the lender's rights under the loan documents
for such Split Loan and the holder of the Split
Note is the Lead Lender;
(C) The related Co-Lender Agreement requires that the
Lead Lender (i) administer the Split Loan and
exercise and enforce the lender's rights under the
loan documents, (ii) hold all of the Mortgaged
Property and all insurance maintained thereon or
in connection therewith (including, but not
limited to, property, casualty, business
interruption and residual value insurance) on
behalf, and for the benefit, of the holders of the
Split Note and the Other Note;
(D) The related Co-Lender Agreement provides that all
holders of the Other Note shall be bound by all
determinations made by the Lead Lender with
respect to the administration of the Split Note
and the exercise of all of lender's rights under
the Loan Documents for such Split Note;
(E) With respect to each Split Loan that is related to
a Credit Lease Loan, (1) the Split Note is an
interest only note for an initial period and
either fully-amortizing thereafter or requires a
balloon payment and has a residual value insurance
policy or a surety bond, (2) the Other Note will
pay principal and interest during such initial
period and be due and payable at the end of such
initial period, and (3) both Other Note and the
Split Note bear interest at the same rate per
annum;
(F) With respect to each Split Loan that is not a
Credit Lease Loan, the Split Note and the Other
Note have identical terms, except, in certain
cases, the face amount of such notes;
(G) The related Co-Lender Agreement provides that, (i)
prior to the occurrence of an event of default
under the Split Loan, the Lead Lender shall
allocate all cash flow received with respect to
the Split Loan in accordance with the terms of the
Split Note and Other Note, and (ii) upon the
occurrence of a continuing event of default under
the Split Loan, all cash flow received with
respect to principal on the Split Loan from any
source shall be allocated pro rata between the
Split Note and the Other Note; and
(H) The related Co-Lender Agreement requires that only
a trustee under a commercial mortgage-backed
securitization may be designated a Lead Lender
under a Split Loan.
(lv) With respect to a defeasance, the related loan documents
require the following:
(A) As of the date of the defeasance, there is no
Event of Default;
(B) Borrower must provide lender at least thirty (30)
days notice to lender of intent to defease, except
in the case of a partial defeasance to increase
the DSCR in order to avoid termination of the
property manager, which may permit less than
thirty (30) days notice of intent to defease;
(C) On the date the Mortgage Loan is to be released,
the borrower must pay an amount (the "Collateral
Substitution Deposit") equal to:
(1) All accrued and unpaid interest;
(2) All scheduled interest and principal due;
(3) 100% of the outstanding principal balance of
the related Note (or at least 100% of the
Allocated Loan Amount for the portion being
defeased); and
(4) All related costs and expenses related to
the defeasance, including fees paid to
acquire non-callable obligations of the U.S.
Treasury ("Treasuries"), fees incurred in
connection with obtaining an accountant's
comfort letter and fees incurred in
connection with obtaining confirmation from
the Rating Agencies that the defeasance will
not cause a downgrade, qualification or
withdrawal of the then current ratings
assigned to any Class of Certificates;
(D) The borrower (itself or through the Servicer as
its agent) will be required to purchase Treasuries
and perform other duties as specified in the loan
documents, and if the Servicer as agent is to
purchase the Treasuries, the borrower will be
required to deliver cash to the Servicer for that
purpose;
(E) The Loan Documents require, or provide that the
lender may require, that the borrower will be
required to deliver, from an independent public
accountant, a letter that certifies that the cash
flow from the Treasuries will be sufficient to
timely meet all scheduled mortgage payments
(including any balloon payments);
(F) The Loan Documents require, or provide that the
lender may require, that the borrower will be
required to deliver a letter from each Rating
Agency that such defeasance will not cause a
downgrade, qualification or withdrawal of the then
current ratings assigned to any Class of
Certificates;
(G) The borrower will be required to assign its
obligations, together with the Treasuries, to a
special purpose entity set up to assume defeased
Mortgage Loans or the borrower will be required to
remain a special purpose entity.
(H) The borrower will be required to provide an
opinion of counsel to the effect that (1) the
Trust has a perfected security interest in the
Collateral Substitution Deposit, the Treasuries
acquired with such deposit and all proceeds
thereof, under the appropriate state law and (2)
the subsequent assignment and assumption of the
Treasuries and the obligations of the original
borrower to and by the new borrower does not
effect the validity, enforceability or priority of
the first priority perfected security interest
granted to the Trust; and
(I) The lender has the option to require the borrower
to provide (1) an officer's certificate certifying
that all obligations have been met and that the
Mortgage Loan is not in default and (2) such other
documents that the lender may reasonably require
in connection with a defeasance;
(lvi) The Mortgage Loan requires the borrower to provide
updated operating statements and other property related
information, as applicable, to the lender at least
annually;
(lvii) To the Seller's knowledge, the terms of the loan
documents comply in all material respects with all
applicable state or federal laws;
(lviii) The full amount of the Note or at least 125% of the
Allocated Loan Amount for each Mortgaged Property has
been recorded; and
(lix) To the Seller's knowledge, a duly qualified trustee
serves with respect to each Mortgage secured by a deed
of trust.
(c) The Seller has not dealt with any broker, investment banker,
agent or other person (other than the Company, the Underwriters and the
Placement Agents) who may be entitled to any commission or compensation in
connection with the sale to the Company of the Mortgage Loans.
3. NOTICE OF BREACH; CURE AND REPURCHASE. (a) Pursuant to the
Pooling and Servicing Agreement, the Seller and the Company shall be given
notice of (A) any breach of any representation or warranty contained in Section
2(b) (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xii), (xv),
(xvii), (xviii), (xix), (xx), (xxv), (xxviii), (xxix) or (xxx) and (B) any
breach of any representation or warranty contained in Section 2(b) (x), (xiii),
(xiv), (xvi), (xxi), (xxii), (xxiii), (xxiv), (xxvi), (xxvii), (xxxi), (xxxii),
(xxxiii), (xxxiv), (xxxv), (xxxvi), (xxxvii), (xxxviii), (xxxix), (xl), (xli),
(xlii), (xliii), (xliv), (xlv), (xlvi), (xlvii), (xlviii), (xlix), (l), (li),
(lii), (liii), (liv), (lv), (lvi), (lvii), (lviii) and (lix) that materially and
adversely affects the value of such Mortgage Loan or the interests of the
holders of the Certificates therein.
(b) Within 90 days of the receipt of the notice (or with respect to
the representation and warranty contained in Section 2(b)(xxix) or (xxx),
discovery) of a breach provided for in subsection (a), the Seller shall either
(i) repurchase the related Mortgage Loan at the Repurchase Price or (ii)
promptly cure such breach in all material respects; PROVIDED, HOWEVER, that in
the event that such breach (other than a breach of Section 2(b)(xxix) or (xxx))
is capable of being cured, as determined by the Servicer or the Special
Servicer, as applicable, but not within such 90 day period and the Seller has
commenced and is diligently proceeding with the cure of such breach within such
90 day period, the Seller shall have an additional 90 days to complete such
cure, PROVIDED, FURTHER, that with respect to such additional 90 day period the
Seller shall have delivered an officer's certificate to the Trustee, the
Servicer and the Special Servicer setting forth the reason such 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 breach will be cured within the additional 90 day
period; and PROVIDED, FURTHER, that the Repurchase Price shall also include
interest at the Advance Rate on any Advances made in respect of the related
Mortgage Loan during such period. Upon any such repurchase of a Mortgage Loan by
the Seller, the Company shall execute and deliver such instruments of transfer
or assignment presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), and the rights with
respect thereto, if applicable, under the Bloomfield Mortgage Loan Purchase
Agreement (including, without limitation, the rights and remedies with respect
to representations and warranties made by Bloomfield thereunder relating to such
Mortgage Loan), and shall deliver the related Mortgage File to the Seller or its
designee after receipt of the related repurchase price. The obligations of the
Seller set forth in this Section 3(b) to cure a breach or repurchase the related
Mortgage Loan constitute the sole remedies of the Company or its assignees with
respect to a breach provided for in subsection (a); PROVIDED, that this
limitation shall not in any way limit the Company's rights or remedies upon
breach of any other representation or warranty or covenant by the Seller set
forth in this Agreement.
(c) The Seller hereby acknowledges the assignment by the Company to
the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Holders of the Certificates, of the representations and
warranties contained herein and of the obligation of the Seller to repurchase a
Mortgage Loan pursuant to this Section. The Trustee or its designee may enforce
such obligation as provided in Section 8 hereof.
4. OPINIONS OF COUNSEL. The Seller hereby covenants to the Company
to, simultaneously with the execution hereof, deliver or cause to be delivered
to the Company opinions of counsel as to various corporate matters in form
satisfactory to the Company.
5. UNDERWRITING. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans, reasonably requested by the Company in order to perform any of
its obligations or satisfy any of the conditions on its part to be performed or
satisfied pursuant to the Underwriting Agreement or the Purchase Agreement at or
prior to the Closing Date.
6. COSTS. The Company shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement and the Purchase
Agreement, including without limitation (i) any recording fees or fees for title
policy endorsements and continuations, (ii) the expenses of preparing, printing
and reproducing the Prospectus Supplement, the Underwriting Agreement, the
Pooling and Servicing Agreement, the Offered Certificates and the Private
Certificates and (iii) the cost of delivering the Offered Certificates and the
Private Certificates to the office of the Underwriters or the purchaser of the
such certificates, as applicable, insured to the satisfaction of the
Underwriters or such purchaser, as applicable.
7. NOTICES. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Company, will be mailed, hand
delivered or delivered by facsimile with receipt confirmed to 2 World Financial
Center - Building B, 18th Floor, New York, New York 10281-1198, Attention: Legal
Department, or, if sent to the Seller, will be mailed, hand delivered or
delivered by facsimile with receipt confirmed to 2 World Financial Center -
Building B, 18th Floor, New York, New York 10281-1198, Attention: Legal
Department.
8. TRUSTEE BENEFICIARY. The representations, warranties and
agreements made by the Seller in this Agreement are made for the benefit of, and
may be enforced by or on behalf of, the Trustee and the Holders of Certificates
to the same extent that the Company has rights against the Seller under this
Agreement in respect of representations, warranties and agreements made by the
Seller herein and such representations and warranties shall survive delivery of
the respective Mortgage Files to the Trustee until the termination of the
Pooling and Servicing Agreement.
9. MISCELLANEOUS. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK. 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 Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Section 10.07 of
the Pooling and Servicing Agreement. 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 8
hereof.
<PAGE>
IN WITNESS WHEREOF, the Company and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
ASSET SECURITIZATION CORPORATION
By: _______________________________________
Name:
Title:
NOMURA HOLDING AMERICA INC.
By: _______________________________________
Name:
Title:
<PAGE>
EXHIBIT A
Mortgage Loans Sold By The Capital Company of America LLC
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MORTGAGE LOAN LOAN NUMBER
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Bayside Expo Center 15959
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Regal Cinema - Medina 20695
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<PAGE>
EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
NHA Mortgage Loan Purchase and Sale Agreement
REPRESENTATION REFERENCE
NUMBER MORTGAGE LOAN NUMBER EXCEPTION
================================================================================
(xvii) ACCOR Corp. - Pool 25821 A portion of the whole loan
III - Note B was included in the Other
Trust Fund.
Cinemark 20585 A portion of the whole loan
was included in the Other
Trust Fund.
Circuit City - 25766 A portion of the whole loan
Indianapolis was included in the Other
Trust Fund.
Circuit City - Jackson 25767 A portion of the whole loan
was included in the Other
Trust Fund.
Circuit City - 25768 A portion of the whole loan
Kingsport was included in the Other
Trust Fund.
Circuit City - 25769 A portion of the whole loan
Philadelphia was included in the Other
Trust Fund.
Circuit City - 25770 A portion of the whole loan
Ridgeland was included in the Other
Trust Fund.
Circuit City - 25771 A portion of the whole loan
Wichita Falls was included in the Other
Trust Fund.
- --------------------------------------------------------------------------------
(xxiii)(B) ACCOR Corp. - Pool 25821 The Mortgaged Property is not
III - Note B covered by business
interruption insurance.
Cinemark 20585 The mortgage loan is not
covered by business
interruption insurance.
Circuit City - 25766 The mortgage loan is not
Indianapolis covered by business
interruption insurance.
Circuit City - Jackson 25767 The mortgage loan is not
covered by business
interruption insurance.
Circuit City - 25768 The mortgage loan is not
Kingsport covered by business
interruption insurance.
Circuit City - 25769 The mortgage loan is not
Philadelphia covered by business
interruption insurance.
Circuit City - 25770 The mortgage loan is not
Ridgeland covered by business
interruption insurance.
Circuit City - 25771 The mortgage loan is not
Wichita Falls covered by business
interruption insurance.
- --------------------------------------------------------------------------------
(xxvi) La Jolla Village 26651 The borrower is, and at the
Professional Ctr. time of the making of the
loan was, the subject of the
following Bankruptcy
Proceedings: In re La Jolla
Village Professional Center
Associates, a California
limited partnership, Debtor,
United States Bankruptcy
Court, Southern District of
California, Case No.
96-053533-JM.
- --------------------------------------------------------------------------------
(xxxiii)(C) ACCOR Corp. - Pool 25821 An independent trustee rather
III - Note B than an independent director
is required.
- --------------------------------------------------------------------------------
(xxxiv)(A) Marina Pacific 26653 Ground lease limits use to
Shopping Center retail department
store/shopping center,
restaurants, offices and
similar commercial uses.
- --------------------------------------------------------------------------------
(xxxiv)(K) Marina Pacific 26653 Ground lease requires lessee
Shopping Center to restore and if lessee
fails to restore, rent abates
& lease terminates as to
non-restored portion.
- --------------------------------------------------------------------------------
(xli)(A) ACCOR Corp. - Pool 25821 The balloon payment due at
III - Note B maturity is not covered by
rental payments due under the
credit lease; however, Seller
has the benefit of a residual
value insurance policy which
covers such balloon payment,
the premiums for which were
paid in full at the loan
closing.
Circuit City - 25766 The balloon payment due at
Indianapolis maturity is not covered by
rental payments due under the
credit lease; however, Seller
has the benefit of a residual
value insurance policy which
covers such balloon payment,
the premiums for which were
paid in full at the loan
closing.
Circuit City - Jackson 25767 The balloon payment due at
maturity is not covered by
rental payments due under the
credit lease; however, Seller
has the benefit of a residual
value insurance policy which
covers such balloon payment,
the premiums for which were
paid in full at the loan
closing.
Circuit City - 25768 The balloon payment due at
Kingsport maturity is not covered by
rental payments due under the
credit lease; however, Seller
has the benefit of a residual
value insurance policy which
covers such balloon payment,
the premiums for which were
paid in full at the loan
closing.
Circuit City - 25769 The balloon payment due at
Philadelphia maturity is not covered by
rental payments due under the
credit lease; however, Seller
has the benefit of a residual
value insurance policy which
covers such balloon payment,
the premiums for which were
paid in full at the loan
closing.
Circuit City - 25770 The balloon payment due at
Ridgeland maturity is not covered by
rental payments due under the
credit lease; however, Seller
has the benefit of a residual
value insurance policy which
covers such balloon payment,
the premiums for which were
paid in full at the loan
closing.
Circuit City - 25771 The balloon payment due at
Wichita Falls maturity is not covered by
rental payments due under the
credit lease; however, Seller
has the benefit of a residual
value insurance policy which
covers such balloon payment,
the premiums for which were
paid in full at the loan
closing.
- --------------------------------------------------------------------------------
(xli)(G) Circuit City - 25766 In the event of condemnation,
Indianapolis Credit Tenant may elect to
require lender and landlord to
either allow Credit Tenant to
terminate the lease or allow
Credit Tenant to purchase the
mortgage property according to
a schedule outlined in the
Credit Lease.
Circuit City - Jackson 25767 In the event of condemnation,
Credit Tenant may elect to
require lender and landlord
to either allow Credit Tenant
to terminate the lease or
allow Credit Tenant to
purchase the mortgage
property according to a
schedule outlined in the
Credit Lease.
Circuit City - 25768 In the event of condemnation,
Kingsport Credit Tenant may elect to
require lender and landlord to
either allow Credit Tenant to
terminate the lease or allow
Credit Tenant to purchase the
mortgage property according to
a schedule outlined in the
Credit Lease.
Circuit City - 25769 In the event of condemnation,
Philadelphia Credit Tenant may elect to
require lender and landlord to
either allow Credit Tenant to
terminate the lease or allow
Credit Tenant to purchase the
mortgage property according to
a schedule outlined in the
Credit Lease.
Circuit City - 25770 In the event of condemnation,
Ridgeland Credit Tenant may elect to
require lender and landlord to
either allow Credit Tenant to
terminate the lease or allow
Credit Tenant to purchase the
mortgage property according to
a schedule outlined in the
Credit Lease.
Circuit City - 25771 In the event of condemnation,
Wichita Falls Credit Tenant may elect to
require lender and landlord to
either allow Credit Tenant to
terminate the lease or allow
Credit Tenant to purchase the
mortgage property according to
a schedule outlined in the
Credit Lease.
- --------------------------------------------------------------------------------
(xli)(K)(5) Circuit City - 25766 The Mortgage Loan Credit
Indianapolis Lease term ends 11 days
before the final maturity
date.
Circuit City - Jackson 25767 The Mortgage Loan Credit Lease
term ends 11 days before the
final maturity date.
Circuit City - 25768 The Mortgage Loan Credit
Kingsport Lease term ends 11 days
before the final maturity
date.
Circuit City - 25769 The Mortgage Loan Credit
Philadelphia Lease term ends 11 days
before the final maturity
date.
Circuit City - 25770 The Mortgage Loan Credit
Ridgeland Lease term ends 11 days
before the final maturity
date.
Circuit City - 25771 The Mortgage Loan Credit
Wichita Falls Lease term ends 11 days
before the final maturity
date.
- --------------------------------------------------------------------------------
(xli)(K)(6) ACCOR Corp. - Pool 25821 The Mortgage Loan is not
III - Note B fully amortizing and requires
a balloon payment at maturity.
Circuit City - 25766 The Mortgage Loan is not
Indianapolis fully amortizing and requires
a balloon payment at maturity.
Circuit City - Jackson 25767 The Mortgage Loan is not fully
amortizing and requires a
balloon payment at maturity.
Circuit City - 25768 The Mortgage Loan is not
Kingsport fully amortizing and requires
a balloon payment at maturity.
Circuit City - 25769 The Mortgage Loan is not
Philadelphia fully amortizing and requires
a balloon payment at maturity.
Circuit City - 25770 The Mortgage Loan is not
Ridgeland fully amortizing and requires
a balloon payment at maturity.
Circuit City - 25771 The Mortgage Loan is not
Wichita Falls fully amortizing and requires
a balloon payment at maturity.
- --------------------------------------------------------------------------------
(xli)(L) ACCOR Corp. - Pool 25821 The Credit Tenant is permitted
III - Note B to sublease the Mortgaged
Property subject to certain
conditions including that all
obligations of the Credit
Tenant continue in full force
and effect as the obligations
of a principal and not of a
guarantor or surety, as if no
subletting had been made. In
addition, the El Paso, Texas
Mortgaged Property was subject
to a restaurant lease at loan
closing.
- --------------------------------------------------------------------------------
(xli)(M) ACCOR Corp. - Pool 25821 The Credit Tenant has not
III - Note B agreed to provide lender with
additional time and
opportunity to cure any event
of default under the credit
lease. However, the Credit
Lease cannot be terminated in
the case of any default by the
Borrower.
- --------------------------------------------------------------------------------
(xli)(P) ACCOR Corp. - Pool 25821 Seller does not have a
III - Note B security interest in certain
payments of (A) additional
rent which is not required to
be paid to the lender and (B)
insurance proceeds under
general public liability
policies which are payable to
the Borrower or an affiliate.
- --------------------------------------------------------------------------------
(xli)(R) ACCOR Corp. - Pool 25821 The Credit Lease is senior to
III - Note B the Mortgage. Pursuant to the
Credit Tenant Lease and the
Assignment of Master Lease and
Guaranty Consent Agreement,
the Credit Tenant makes
payments directly to the
lender.
- --------------------------------------------------------------------------------
(xli)(S) ACCOR Corp. - Pool 25821 The Assignment of Master
III - Note B Lease and Guaranty Consent
Agreement entered into in
connection with the Mortgage
Loan contains the restriction
that the Credit Lease
Property cannot be sold to
any person actively engaged
in the management or
operation of 30 or more
limited service budget motels.
- --------------------------------------------------------------------------------
(xli)(V) ACCOR Corp. - Pool 25821 The guarantor has not
III - Note B executed a subordination or
non-disturbance agreement but
consents to the assignment to
lender in the guaranty; the
guaranty may not be amended or
released without lender's
consent.
- --------------------------------------------------------------------------------
(xli)(X) ACCOR Corp. - Pool 25821 Under the Loan Documents,
III - Note B Credit Tenant is not required
to reimburse Borrower for
gross negligence and willful
misconduct of Borrower. The
Credit Tenant indemnity
obligation is limited to the
Credit Lease and does not
encompass the Credit Lease
Loan.
- --------------------------------------------------------------------------------
(xli)(Z)(2) ACCOR Corp. - Pool 25821 R.V.I. America Insurance
III - Note B Company.
Circuit City - 25766 Financial Structures Limited.
Indianapolis
Circuit City - Jackson 25767 Financial Structures Limited.
Circuit City - 25768 Financial Structures Limited.
Kingsport
Circuit City - 25769 Financial Structures Limited.
Philadelphia
Circuit City - 25770 Financial Structures Limited.
Ridgeland
Circuit City - 25771 Financial Structures Limited.
Wichita Falls
- --------------------------------------------------------------------------------
(xli)(Z)(6) Circuit City - 25766 The proceeds under the
Indianapolis residual value policy are
payable on the maturity date
of the loan and loan matures
11 days after the lease.
Circuit City - Jackson 25767 The proceeds under the
residual value policy are
payable on the maturity date
of the loan and loan matures
11 days after the lease.
Circuit City - 25768 The proceeds under the
Kingsport residual value policy are
payable on the maturity date
of the loan and loan matures
11 days after the lease.
Circuit City - 25769 The proceeds under the
Philadelphia residual value policy are
payable on the maturity date
of the loan and loan matures
11 days after the lease.
Circuit City - 25770 The proceeds under the
Ridgeland residual value policy are
payable on the maturity date
of the loan and loan matures
11 days after the lease.
Circuit City - 25771 The proceeds under the
Wichita Falls residual value policy are
payable on the maturity date
of the loan and loan matures
11 days after the lease.
- --------------------------------------------------------------------------------
(xlii) ACCOR Corp. - Pool 25821 UCC financing statements do
III - Note B not provide perfected
security interests in certain
personal property such as
trademarks, tradenames,
reservations system,
proprietary computer software
and telephone and wiring
system. The franchise
operator has agreed to grant
to the Trustee a franchise to
operate the Mortgaged
Property in the event of a
foreclosure provided the
Trustee meets franchise
requirements.
- --------------------------------------------------------------------------------
(xlv) ACCOR Corp. - Pool 25821 The Mortgaged Property does
III - Note B not have parking as required
under applicable law although
Borrower has represented that
any failure to have required
parking is not materially
affect the value of the
property and is not a material
violation of the applicable
law.
- --------------------------------------------------------------------------------
(xlvii)(D) Warminster Town Center 9397 If no event of default occurs
during the period from the
Anticipated Repayment Date
to 3rd payment date
thereafter, 50% of excess
cashflow goes to borrower and
NOT to amortization of the
loan.
- --------------------------------------------------------------------------------
(xlvii)(E) Hidden Creek 23548 Lender may exercise default
Apartments remedies solely because the
Borrower fails to pay the
difference between the
original interest rate and
the new interest rate.
- --------------------------------------------------------------------------------
(l) ACCOR Corp. - Pool 25821 Under the terms of the
III - Note B related Credit Lease, the
mortgagee may be required to
release up to two of the
mortgaged properties from the
lien if the Credit Tenant
provides a substitute
property that is, in all
material aspects, the
economic equivalent of the
mortgaged property being
substituted. This two
property limit does not apply
to instances of condemnation
or economic obsolescence.
Cinemark 20585 Under the terms of the
related Credit Lease, the
mortgagee may be required to
release a mortgaged property
from the lien if the Credit
Tenant provides a substitute
property that is, in all
material aspects, the
economic equivalent of the
mortgaged property being
substituted.
- --------------------------------------------------------------------------------
(lii) Marina Pacifica 26653 The Borrower has incurred
Shopping Center unsecured debt from the City
of Long Beach, California, in
loans less than $1,000,000 in
connection with certain
municipal development programs
of the City of San Diego.
- --------------------------------------------------------------------------------
(lvi) Circuit City - 25766 Not required by the loan
Indianapolis documents although the Credit
Tenant is required to deliver
quarterly operating statements
pursuant to the credit lease.
Circuit City - Jackson 25767 Not required by the loan
documents although the Credit
Tenant is required to deliver
quarterly operating
statements pursuant to the
credit lease.
Circuit City - 25768 Not required by the loan
Kingsport documents although the Credit
Tenant is required to deliver
quarterly operating statements
pursuant to the credit lease.
Circuit City - 25769 Not required by the loan
Philadelphia documents although the Credit
Tenant is required to deliver
quarterly operating statements
pursuant to the credit lease.
Circuit City - 25770 Not required by the loan
Ridgeland documents although the Credit
Tenant is required to deliver
quarterly operating statements
pursuant to the credit lease.
Circuit City - 25771 Not required by the loan
Wichita Falls documents although the Credit
Tenant is required to deliver
quarterly operating statements
pursuant to the credit lease.
================================================================================
<PAGE>
EXHIBIT C
EXCEPTIONS TO (XXXVIII)
LIST OF AFFILIATED BORROWERS
- --------------------------------------------------------------------------------
LOAN NAME RELATIONSHIP CUT-OFF BALANCE
- --------------------------------------------------------------------------------
154 East 106th Street The RE Group $619,682.82
- --------------------------------------------------------------------------------
215 East 117th Street The RE Group $1,460,680.94
- --------------------------------------------------------------------------------
228 East 116th Street The RE Group $1,081,985.88
- --------------------------------------------------------------------------------
231 & 235 East 117th Street The RE Group $2,398,074.17
- --------------------------------------------------------------------------------
234-236 & 238-240 East 116th Street The RE Group $2,203,316.71
- --------------------------------------------------------------------------------
2371 2nd Avenue The RE Group $767,226.35
- --------------------------------------------------------------------------------
312, 318 & 328 East 106th Street The RE Group $2,286,924.71
- --------------------------------------------------------------------------------
Circuit City-Indianapolis Circuit City Stores, Inc. $3,742,455.06
- --------------------------------------------------------------------------------
Circuit City-Jackson Circuit City Stores, Inc. $2,744,467.33
- --------------------------------------------------------------------------------
Circuit City-Kingsport Circuit City Stores, Inc. $2,494,969.31
- --------------------------------------------------------------------------------
Circuit City-Philadelphia Circuit City Stores, Inc. $5,821,598.48
- --------------------------------------------------------------------------------
Circuit City-Ridgeland Circuit City Stores, Inc. $4,158,282.80
- --------------------------------------------------------------------------------
Circuit City-Wichita Falls Circuit City Stores, Inc. $2,494,969.31
- --------------------------------------------------------------------------------
100 Cortland Office Portfolio BGK $5,442,812.87
- --------------------------------------------------------------------------------
Manassas Executive Center BGK $6,037,079.10
- --------------------------------------------------------------------------------
BGK - Park Fletcher BGK $8,796,886.32
- --------------------------------------------------------------------------------
BGK - Sentry BGK $1,090,908.75
- --------------------------------------------------------------------------------
BGK - Gateway BGK $1,089,994.54
- --------------------------------------------------------------------------------
BGK Flatiron BGK $1,289,255.82
- --------------------------------------------------------------------------------
BGK-Parham 64 BGK $2,553,718.19
- --------------------------------------------------------------------------------
BGK Lakewood BGK $7,480,143.98
- --------------------------------------------------------------------------------
Ironbridge Plaza Roger Glover $1,392,565.01
- --------------------------------------------------------------------------------
Short Pump Village Roger Glover $3,751,912.92
- --------------------------------------------------------------------------------
Huffman Business Park Bldg. A&B Huffman $1,329,064.38
- --------------------------------------------------------------------------------
Huffman Business Park Bldg. O Huffman $927,111.14
- --------------------------------------------------------------------------------
Huffman Business Park Bldgs. M & N Huffman $1,123,425.45
- --------------------------------------------------------------------------------
Huffman Business Park C Huffman $697,168.57
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT I
[Reserved]
<PAGE>
EXHIBIT J
[Reserved]
<PAGE>
EXHIBIT K
[Reserved]
<PAGE>
EXHIBIT L
[Reserved]
<PAGE>
EXHIBIT M-1
BNY Asset Solutions
Comparative Financial Report
<TABLE>
<CAPTION>
Original Underwriting Information
Basis Year
--------------------------------------
Last
Property Scheduled Paid Annual Financial (1)
Prospectus Inspection Loan Thru Debt Info as % Total $ (2)
Loan # ID City State Date Balance Date Service of Date Occ Revenue NOI DSCR
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
</TABLE>
<TABLE>
<CAPTION>
2nd Preceding Annual Operating Information Preceding Annual Operating Information
as of ________ Normalized as of ________ Normalized
- ---------------------------------------------- ----------------------------------------------
Financial Financial
Info (1) Info (1)
as of % Total $ (2) as of % Total $ (2)
Date Occ Revenue NOI DSCR Date Occ Revenue NOI DSCR
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
</TABLE>
<TABLE>
<CAPTION>
YTD or Trailing 12 Months Financial Information Net Change(3)
Actual TTM & Basis
- -------------------------------------------------------- ----------------------
FS %
End Total $ % Occupancy % % Total (1)
Date Revenue NOI DSCR Date Occ Occ Rev DSCR
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm
</TABLE>
<PAGE>
EXHIBIT M-2
BNY Asset Solutions
Delinquent Loan Status Report
As of Date
<TABLE>
<CAPTION>
Scheduled Total P&I Total
Prospectus Property Sq. Ft. or Paid Thru Loan Advances Expenses
ID Name Type City State Units Date Balance To-Date To-Date
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Days Delinquent
- ---------------
None Reported
60 + Days Delinquent
- --------------------
None Reported
30 + Days Delinquent
- --------------------
None Reported
Current and Special Serviced
- ----------------------------
</TABLE>
<TABLE>
<CAPTION>
Other Appraisal
Advances Current Current LTM BPO or Loss Using
Tax & Total Monthly Interest Maturity NOI LTM LTM Valuation Internal 90% Appr.
Escrow Exposure P&I Rate Date Date NOI DSCR Value Date Value or BPO
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Expected
Estimated Transfer Closing FCL Start FCL Sale Workout
Recovery % Date Date Date Date Strategy Comments
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12m
* Workout Strategy should match the CSSA Loan file using abreviated words in
place of a code number such as (FCL - In Foreclosure, MOD - Modification,
DPO - Discounted Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment
Plan, TBD - To Be Determined
** It is possible to combine the status codes if the loan is going in more
than one direction (i.e. FCL/MOD, BK/MOD, BK/FCL/DPO) App - Appraisal, BPO
-Brokers Opinion, Int - Internal Value
*** How to determine the cap rate is agreed upon by Underwriter and Servicers -
to be provided by a third party.
<PAGE>
EXHIBIT M-3
BNY Asset Solutions
Historical Loan Modification Report
As of Date
<TABLE>
<CAPTION>
Balance
When Balance at the
Sent to Effective Date # Mths
Prospectus Mod/ Effect Special of for Rate New
ID City State Extension Flag Date Servicer Rehabilitation Old Rate Change Rate Old P&I
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
This Report is Historical
Total For All Loans:
Total For Loans In Current Month:
# of Loans $ Balance
Modifications:
Maturity Date Extentions:
Total:
</TABLE>
<TABLE>
<CAPTION>
(2) Est. Future
Total # Interest Loss
Mths for (1) Realized to Trust $
Old New Change of Loss to (Rate
Maturity Maturity Mod Trust $ Reduction) COMMENT
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT M-4
BNY Asset Solutions
Historical Loss Estimate Report
As of Date
<TABLE>
<CAPTION>
S4 S55 S61 S57 S58 P45/P7 P75 P45 P7 P37
- ----------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e) (f)
- ----------------------------------------------------------------------------------------------------------------------------------
Latest
% Appraisal Net Amt
Short Name Received of Effect Received
Prospectus (when Property from Brokers Date of Sales from Scheduled Total P&I
ID appropriate) Type City State State Opinion Sale Price Sale Balance Advanced
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
None
Total all Loans:
Current Month Only:
</TABLE>
<TABLE>
<CAPTION>
P39&P38
- --------------------------------------------------------------------------------------------------------------------
(g) (h) (1)=d(f+g+h) (k)=1*e (m) (n)=k+m (o)=n/e
- --------------------------------------------------------------------------------------------------------------------
Minor
Date Loss Minor Adj Loss % of
Total Servicing Fees Actual Losses Passed Adj to Passed Total Loss with Scheduled
Expenses Expense Net Proceeds Passed thru thru Trust thru Adjustment Balance
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT M-5
BNY Asset Solutions
REO Status Report
As of Date
<TABLE>
<CAPTION>
Other
Paid Scheduled Total P&I Total Advances
Prospectus Property Property Sq Ft or thru Loan Advances to Expenses to Taxes & Total P&I Total
ID Name Type City State Units Date Balance Date Date Escrows Advanced Exposure
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- -------------------------
None
TOTAL ALL LOANS:
- ----------------
Current Monthly Only:
</TABLE>
<TABLE>
<CAPTION>
Value Appraisal Total
LTM Using NOI BPO or Loss using Appraisal
Current Maturity NOI LTM NOI Cap Rate Valuation & Cap Internal 90% Appr Estimated Reduction Transfer
Monthly P&I Date Date DSC Assign Date Rate Value or BPO Recovery % Realized Date
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
REO Pending
Acquisition Reduction
Date Date Comments
- --------------------------------
<S> <C> <C>
</TABLE>
<PAGE>
EXHIBIT M-6
BNY Asset Solutions
Servicer Watch List
As of Date
<TABLE>
<CAPTION>
Scheduled
Prospectus Property Loan Paid Thru Maturity Comment/Reason
ID Name Type City State Balance Date Date LTM DSCR on Watch List
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total: 0 $0.00
LTM - Last 12 months either trailing or last annual.
</TABLE>
<PAGE>
EXHIBIT M-7
BNY Asset Solutions
Payoff Notification Report
As of Date
<TABLE>
<CAPTION>
S4 S55 S61 S58 P7 P8 P10 P11 P54 Servicer Estimated Information
- --------------------------------------------------------------------------------------------------------------------------------
Short Name Scheduled Current Expected Expected
Prospectus (When Property Loan Paid Thru Interest Maturity LTM Yield Payment Distribution
ID Appropriate) Type State Balance Date Rate Date DSCR Maintenance Date Date
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Scheduled Payments
Unscheduled Payments
Total:
</TABLE>
<PAGE>
EXHIBIT M-8
BNY Asset Solutions
Operating Analysis Status Report
As of Date
<TABLE>
<S> <C>
Property Overview
Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
<CAPTION>
Year of Operations Underwriting 1994 1995 1996 Trailing
<S> <C> <C> <C> <C> <C>
Occupancy Rate
Average Rental Rate
*Occupany rates are year end or the ending date of the financial statement for the period.
<CAPTION>
Income: No. of Mos.
No. of Months Prior Yr. Cur Yr.
Period Ended Underwriting 1996 1997 1998 98 Trailing** 1997-Base 1997-1996
Statement Classifications Baseline Normalized Normalized Normalized as of / /97 Variance Variance
<C> <C> <C> <C> <C> <C> <C>
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
Effective Gross Income $ - $ - $ - $ - $ - % %
Normalized - Full year financial statements that have been reviewed by the underwriter or servicer
Servicer will not be expected to normalize these YTD numbers
Operating Expenses:
Real Estate Taxes
Property Insurance
Utilities
General and Admin
Repairs and Maintenance
Management Fees
Payroll and Benefits expense
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses $ - $ - $ - % %
Operating Expense Ratio:
Net Operating Income $ - $ - $ - % %
Leasing Commissions
Tenant Improvements
Replacement Reserves
Total Capital Items $ - $ - $ - % %
N.O.I. After Capital Items $ - $ - $ - % %
Debt Service (per servicer) $ - $ - $ - % %
Cash Flow after Debt Service $ - $ - $ - % %
(1) DSCR: (NOI/Debt Service)
DSCR (after reserves/Cap exp)
Source of Financial Date:
(ie. Operating statements, financial statements, tax return, other)
</TABLE>
<PAGE>
EXHIBIT M-9
BNY Asset Solutions
Noi Adjustment Worksheet
As of Date
<TABLE>
<CAPTION>
<S> <C>
Property Overview
Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Borrower Adjustment Normalized
<S> <C> <C> <C>
Occupancy Rate
Average Rental Rate
* Occupancy rates are year end or the ending date of the financial statement for the period
Income:
Number of Mos. Year
Period Ended Borrower
Statement Classifications Actual Adjustment Normalized
<S> <C> <C> <C>
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass-Throughs/Escalations
Other Income
Effective Gross Income $ - $ - $ -
Normalized - Full year financial statements that
have been reviewed by the Servicer.
Operating Expenses:
Real Estate Taxes
Property Insurance
Utilities
General & Admin
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses $ - $ - $ -
Operating Expense Ratio:
Net Operating Income $ - $ - $ -
Leasing Commissions
Tenant Improvements
Replacement Reserve
Total Capital Items $ - $ - $ -
N.O.I. After Capital Items $ - $ - $ -
Debt Service (per servicer) $ - $ - $ -
Cash Flow after debt service $ - $ - $ -
(1)DSCR: (NOI/Debt Service)
DSCR: (after reserves/Cap exp)
Source of Financial Data:
(ex. Operating statements, financial statements,
tax return, other)
</TABLE>
<PAGE>
EXHIBIT M-10
CSSA 100.1 SET-UP DATA RECORD LAYOUT
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "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)
</TABLE>
<TABLE>
<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>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "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>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "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>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
PAYMENT TYPE CODE ARM INDEX CODE ROUNDING CODE
LEGEND LEGEND LEGEND
<S> <C> <C>
1 Fully Amortizing A 11 FRLB COF1 (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
PROPERTY TYPES CODE
LEGEND
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
</TABLE>
<PAGE>
EXHIBIT M-11
CSSA 100.1 PERIODIC DATA RECORD LAYOUT
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "Loan Periodic" Update File
(Data Record Layout)
SPECIFICATION DESCRIPTION/COMMENTS
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)
<TABLE>
<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>
<PAGE>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period
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>
<PAGE>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
Field Format
Field Name Number Type Example Description/Comments
<S> <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
New Fields Added:
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>
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.
<PAGE>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
Liquidation/Prepayment Code Status of Mortgage Loan Modification Code
Legend Legend Legend
<S> <C> <C>
1 Partial LIq'n (Curtainment) 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
Workout Strategy Code
Legend
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed In Lieu Of Foreclosure
</TABLE>
<PAGE>
EXHIBIT M-12
CSSA 100.1 PROPERTY DATA FILE
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "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
DESCRIPTION/COMMENTS LOAN
<S> <C>
S1,P1
S3,P3
From Offering Document S4,P4
Should contain Prospectus ID and propety identifier, e.g., 1001-001, 1000-002
P5
All Loans With The Same Numeric Value Are Crossed S75
S55
S56
S57
S58
S59
S60
S61
S64
P80
RT, IN, WH, OF, MU, SS,OT = SF S62
MF, MHP, LO, HC = Units S63
1=FCL, 2=REO, 3=Defeased, 4=Partial Release, 5= Released, 6= Same as at securitization
Issuer to allocate loan % attributable to property for multi-property loans
Calculation based on Current Allocated Loan Amount and Current SPB for associated loan.
Maintained by servicer. P7
Either Y=Yes, S=Subordinat, N= No ground lease S74
S77
P74
P75
Could be different dates for different properties if foreclosing P79
P42
</TABLE>
<PAGE>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "Property" File
(Data Record Layout)
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75
Occupancy Date 30 Numeric YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant 37 AN Text
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12
Securitization Financials As Of Date 44 AN YYYYMMDD
Revenue At Securitization 45 Numeric 1000000
Operating Expenses At Securitization 46 Numeric 1000000
NOI At Securitization 47 Numeric 1000000
DSCR At Securitization 48 Numeric 1.5
Appraisal Value At Securitization 49 Numeric 1000000
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric
Date of Last Inspection 52 AN YYYYMMDD
<TABLE>
<CAPTION>
CSSA
DESCRIPTION/COMMENTS LOAN
<S> <C>
P43
Map to "Most Recent Fiscal YTD Phys. Occ." in CSSA P71
Add a new field to the CSSA Loan file. P71
Roll over review to be completed every 12 months
For Office, WH, Retail, Industrial *Only if disclosed in the offering document
For Office, WH, Retail, Industrial *Only if disclosed in the offering document
For Office, WH, Retail, Industrial *Only if disclosed in the offering document
Needed to indicate month ending for borrower's Fiscal Year
S72
S70
S71
S65
S66
S67
S68
S69
</TABLE>
<PAGE>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "Property" File
(Data Record Layout)
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000
Preceding Fiscal Year Expenses 55 Numeric 1000000
Preceding Fiscal Year NOI 56 Numeric 1000000
Preceding Fiscal Year Debt Service Amt. 57 Numeric 1000000
Preceding Fiscal Year DSCR 58 Numeric 1.30
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.90
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1000000
Second Preceding FY Expenses 62 Numeric 1000000
Second Preceding FY NOI 63 Numeric 1000000
Second Preceding FY Debt Service 64 Numeric 1000000
Second Preceding FY DSCR 65 Numeric 1.30
Sec Preceding FY Physical Occupancy 66 Numeric 0.90
CSSA
DESCRIPTIION/COMMENTS LOAN
P58
P52
P53
P54
P55
P56
P57
P65
P59
P60
P61
P62
P63
P64
<PAGE>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "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>
<PAGE>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "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>
<PAGE>
Commercial Mortgage Asset Trust ("CMAT")
BNY Asset Solutions LLC, Servicer
Lennar Partners, Inc., Special Servicer
Servicer Reports
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
CSSA "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>
<PAGE>
EXHIBIT M-13
Commercial Mortgage Asset Trust ("CMAT")
Commercial Mortgage Pass-Through Certificates, Series 1999-C2
BNY ASSET SOLUTIONS LLC, AS SERVICER
PREMIUM LOAN REPORT
AS OF
<TABLE>
<CAPTION>
Financial Anticipated Scheduled
Pro Sup Loan Info as of Repayment Date Loan Unamortized Premium Base Interest Base
Loan # City State Name Date LTV PTV LTV/PTV DSCR Balance Premium Balance Rate Rate Amort. Amort.
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans currently in deal with or without information largest to smallest loan
Total/Weighted Average
</TABLE>
<PAGE>
EXHIBIT N
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
BNY Asset Solutions LLC
600 East Las Colinas Blvd.
Suite 1300
Irving, TX 75062
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
In accordance with Section 4.02 of the Pooling and Servicing Agreement, dated as
of October 11, 1999 (the "Pooling and Servicing Agreement"), among Asset
Securitization Corporation, as depositor (the "Depositor"), BNY Asset Solutions
LLC, as servicer, Lennar Partners, Inc., as special servicer, LaSalle Bank
National Association, as trustee (in such capacity, the "Trustee"), and ABN AMRO
Bank N.V., as fiscal agent, with respect to the Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting the information identified on
the schedule attached hereto pursuant to Section 4.02 of the
Pooling and Servicing Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as
are assisting it in making the evaluation described in
paragraph 2), and such Information will not, without the prior
written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, members,
shareholders 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.
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 Certificate pursuant to
Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall
indemnify the Depositor, the Trustee and the Trust for any
loss, liability or expense incurred thereby (including,
without limitatin, any attorneys' fees) with respect to any
such breach by the undersigned or any of its Representatives.
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:
