================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
Form 8-K
----------
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 9, 1999
MORGAN STANLEY CAPITAL I INC.
-----------------------------
(Exact name of registrant as
specified in its charter)
DELAWARE 333-62911 13-3291626
- ---------------------------- ------------- ----------------------
(State or Other Jurisdiction (Commission (I.R.S. Employer
Incorporation) File Number) Identification Number)
--------------------------------
1585 Broadway
2nd Floor
New York, New York 10036
(principal executive offices)
(212) 761-4000
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<PAGE>
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
On March 9, 1999, a single series of certificates, entitled Morgan Stanley
Capital I Inc. Commercial Mortgage Pass-Through Certificates, Series 1999-RM1
(the "Certificates"), was issued pursuant to a pooling and servicing agreement
dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), attached
hereto as Exhibit 4.1, among Morgan Stanley Capital I Inc. (the "Depositor") as
depositor, AMRESCO Services, L.P., as master servicer, Banc One Mortgage Capital
Markets LLC, as special servicer, LaSalle National Bank, as Trustee and ABN Amro
Bank N.V., as fiscal agent. The Certificates consist of nineteen classes
identified as the "Class A1 Certificates," the "Class A2 Certificates," the
"Class X Certificates," the "Class B Certificates," the "Class C Certificates,"
the "Class D Certificates," the "Class E Certificates," the "Class F
Certificates," the "Class G Certificates," the "Class H Certificates," the
"Class J Certificates," the "Class K Certificates," the "Class L Certificates,"
the "Class M Certificates," the "Class N Certificates," the "Class O
Certificates," the "Class R-I Certificates," the "Class R-II Certificates," and
the "Class R-III Certificates," respectively, and were issued in exchange for,
and evidence the entire beneficial ownership interest in, the assets of a trust
fund (the "Trust Fund") consisting primarily of a segregated pool (the "Mortgage
Pool") of 221 fixed rate, multifamily and commercial mortgage loans (the
"Mortgage Loans") having, as of the close of business on March 1, 1999 (the
"Cut-off Date"), an aggregate principal balance of $859,350,407, after taking
into account all payments of principal due on the Mortgage Loans on or before
such date, whether or not received.
1
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The Class A1 Certificates have an initial Class Principal Balance of
$183,000,000. The Class A2 Certificates have an initial Class Principal Balance
of $429,287,000. The Class X Certificates have an initial Class Notional Amount
of $859,350,407. The Class B Certificates have an initial Class Principal
Balance of $42,967,000. The Class C Certificates have an initial Class Principal
Balance of $45,116,000. The Class D Certificates have an initial Class Principal
Balance of $12,890,000. The Class E Certificates have an initial Class Principal
Balance of $34,374,000. The Class F Certificates have an initial Class Principal
Balance of $17,187,000. The Class G Certificates have an initial Class Principal
Balance of $10,742,000. The Class H Certificates have an initial Class Principal
Balance of $23,632,000. The Class J Certificates have an initial Class Principal
Balance of $8,594,000. The Class K Certificates have an initial Class Principal
Balance of $12,890,000. The Class L Certificates have an initial Class Principal
Balance of $6,445,000. The Class M Certificates have an initial Certificate
Principal Amount of $8,594,000. The Class N Certificates have an initial
Certificate Principal Amount of $8,593,000. The Class O Certificates have an
initial Certificate Principal Amount of $15,039,407. Capitalized terms used and
not otherwise defined herein shall have the meanings assigned to them in the
Pooling and Servicing Agreement.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired
Not applicable.
(b) Pro Forma Financial Information
Not applicable.
(c) Exhibits.
Exhibit No.
of Item 601 of
Exhibit No. Regulation S-K Description
- ----------- -------------- -----------
4.1 4 Pooling and Servicing Agreement
dated as of March 1, 1999 among
Morgan Stanley Capital I Inc. as
depositor, AMRESCO Services, L.P.,
as master servicer, Banc One
Mortgage Capital Markets LLC, as
special servicer, LaSalle National
Bank, as trustee, and ABN Amro Bank
N.V., as fiscal agent.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: March 26, 1999
MORGAN STANLEY CAPITAL I INC.
By: /s/ ANDREW BERMAN
---------------------
Name: Andrew Berman
Title: Vice President
3
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MORGAN STANLEY CAPITAL I INC.,
AS DEPOSITOR,
AND
AMRESCO SERVICES, L.P.,
AS MASTER SERVICER,
AND
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
AS SPECIAL SERVICER,
AND
LASALLE NATIONAL BANK,
AS TRUSTEE,
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT,
POOLING AND SERVICING AGREEMENT
DATED AS OF MARCH 1, 1999
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-RM1
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<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS.......................................................4
Section 1.1. Definitions......................................................4
Section 1.2. Certain Calculations in Respect of the Mortgage Pool............45
Section 1.3. Interpretation..................................................46
ARTICLE II. DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES.................46
Section 2.1. Conveyance of Mortgage Loans....................................46
Section 2.2. Acceptance by Trustee...........................................48
Section 2.3. Sellers' Repurchase of Mortgage Loans for Document
Defects and Breaches of Representations and Warranties..........50
Section 2.5. Conveyance of Interests.........................................52
ARTICLE III. THE CERTIFICATES................................................52
Section 3.1. The Certificates................................................52
Section 3.2. Registration....................................................53
Section 3.3. Transfer and Exchange of Certificates...........................53
Section 3.4. Mutilated, Destroyed, Lost or Stolen Certificates...............59
Section 3.5. Persons Deemed Owners...........................................59
Section 3.6. Book-Entry Certificates.........................................60
Section 3.7. Notices to Clearing Agency......................................61
Section 3.8. Definitive Certificates.........................................61
ARTICLE IV. ADVANCES........................................................61
Section 4.1. P&I Advances by Master Servicer.................................61
Section 4.2. Servicing Advances..............................................62
Section 4.3. Advances by Trustee and Fiscal Agent............................63
Section 4.4. Evidence of Nonrecoverability...................................64
Section 4.5. Advance Interest................................................65
Section 4.6. Merger or Consolidation of Fiscal Agent.........................65
Section 4.7. Limitation on Liability of the Fiscal Agent and Others..........65
Section 4.8. Indemnification of Fiscal Agent.................................66
ARTICLE V. COLLECTION ACCOUNT; DISTRIBUTION ACCOUNT;
CERTAIN TRUSTEE REPORTS..........................................67
Section 5.1. Collection Account..............................................67
i
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Section 5.2. Application of Funds in the Collection Account..................69
Section 5.3. Distribution Account; Excess Interest Distribution
Account; Interest Reserve Account...............................72
Section 5.4. Trustee Reports; Access to Information..........................74
Section 5.5. Trustee Tax Reports.............................................78
ARTICLE VI. DISTRIBUTIONS...................................................78
Section 6.1. Distributions Generally.........................................78
Section 6.2. REMIC I.........................................................79
Section 6.3. REMIC II........................................................80
Section 6.4. REMIC III.......................................................84
Section 6.5. Allocation of Realized Losses and Expense Losses................89
Section 6.6. Appraisal Reductions............................................90
Section 6.7. Compliance with Withholding Requirements........................91
ARTICLE VII. CONCERNING THE TRUSTEE AND THE FISCAL AGENT.....................91
Section 7.1. Duties of Trustee and the Fiscal Agent..........................91
Section 7.2. Certain Matters Affecting the Trustee and the Fiscal Agent......92
Section 7.3. Trustee and Fiscal Agent Not Liable for Certificates or
Interests or Mortgage Loans.....................................95
Section 7.4. Trustee and the Fiscal Agent May Own Certificates...............95
Section 7.5. Eligibility Requirements for Trustee and Fiscal Agent...........95
Section 7.6. Resignation and Removal of Trustee or Fiscal Agent..............95
Section 7.7. Successor Trustee or Fiscal Agent...............................97
Section 7.8. Merger or Consolidation of Trustee..............................98
Section 7.9. Appointment of Co-Trustee, Separate Trustee or Custodian.......98
Section 7.10. Authenticating Agents.........................................100
Section 7.11. Indemnification...............................................100
Section 7.12. Fees and Expenses of Trustee and Fiscal Agent.................101
Section 7.13. Collection of Moneys..........................................102
Section 7.14. Notification to Holders.......................................102
Section 7.15. Representations and Warranties of Trustee and Fiscal Agent....102
Section 7.16. Fiscal Agent Termination Event................................104
Section 7.17. Procedure Upon Termination Event..............................105
Section 7.18. Impact of Year 2000 Compliance................................105
ARTICLE VIII. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS................106
Section 8.1. Servicing Standard; General Powers and Duties..................106
Section 8.2. Collection of Mortgage Loan Payments...........................108
Section 8.3. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts and Reserve Accounts........................109
Section 8.4. Sub-Servicing Agreements.......................................110
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Section 8.5. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage................................112
Section 8.6. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing..............................114
Section 8.7. Realization Upon Defaulted Mortgage Loans......................116
Section 8.8. Trustee to Cooperate; Release of Mortgage Files................119
Section 8.9. Documents, Records and Funds in Possession of Master
Servicer or Special Servicer to be Held for Trustee
for the Benefit of Certificateholders..........................120
Section 8.10. Servicing Compensation........................................121
Section 8.11. Master Servicer Reports; Account Statements...................123
Section 8.12. Annual Statement as to Compliance.............................123
Section 8.13. Annual Independent Public Accountants' Servicing Report.......123
Section 8.14. Certain Reports Regarding the Mortgage Loans and the
Mortgaged Properties..........................................124
Section 8.15. Certain Available Information and Related Rights of
the Master Servicer and the Special Servicer..................127
Section 8.16. Rule 144A Information.........................................129
Section 8.17. Inspections; Collection of Financial Statements...............129
Section 8.18. Modifications, Waivers, Amendments, Extensions and
Consents......................................................130
Section 8.19. Title to REO Property.........................................134
Section 8.20. Management of REO Property....................................134
Section 8.21. Additional Obligations of the Master Servicer.................137
Section 8.22. Representations, Warranties and Covenants of the
Master Servicer and the Special Servicer......................137
Section 8.23. Merger or Consolidation.......................................141
Section 8.24. Resignation of Master Servicer or Special Servicer............141
Section 8.25. Assignment or Delegation of Duties by Master
Servicer or the Special Servicer..............................141
Section 8.26. Limitation on Liability of Master Servicer,
Special Servicer and Others...................................142
Section 8.27. Indemnification; Third-Party Claims...........................143
Section 8.28. Tax Reporting.................................................144
Section 8.29. Certain Special Servicer Reports..............................144
Section 8.30. Qualification to Service......................................145
Section 8.31. Sale of Defaulted Mortgage Loans and REO Properties...........145
Section 8.32. Operating Adviser; Elections..................................146
Section 8.33. Duties of Operating Adviser...................................147
Section 8.34. Exchange Act Reporting........................................148
ARTICLE IX. DEFAULT........................................................149
Section 9.1. Events of Default..............................................149
Section 9.2. Trustee to Act; Appointment of Successor.......................151
Section 9.3. Notification to Certificateholders.............................152
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Section 9.4. Waiver of Events of Default....................................153
ARTICLE X. PURCHASE AND TERMINATION OF THE TRUST...........................153
Section 10.1. Termination of Trust..........................................153
Section 10.2. Procedure Upon Termination of Trust...........................154
Section 10.3. Additional Trust Termination Requirements.....................155
ARTICLE XI. RIGHTS OF CERTIFICATEHOLDERS...................................156
Section 11.1. Limitation on Rights of Holders...............................156
Section 11.2. Access to List of Holders.....................................157
Section 11.3. Acts of Holders of Certificates...............................157
ARTICLE XII. REMIC ADMINISTRATION..........................................158
Section 12.1. REMIC Administration..........................................158
Section 12.2. Prohibited Transactions and Activities........................163
Section 12.3. Liability with Respect to Certain Taxes and
Loss of REMIC Status..........................................163
Section 12.4. Modifications of Mortgage Loans...............................164
ARTICLE XIII. MISCELLANEOUS PROVISIONS.....................................164
Section 13.1. Binding Nature of Agreement...................................164
Section 13.2. Entire Agreement..............................................164
Section 13.3. Amendment.....................................................164
Section 13.4. GOVERNING LAW.................................................165
Section 13.5. Notices.......................................................165
Section 13.6. Severability of Provisions....................................166
Section 13.7. Indulgences; No Waivers.......................................166
Section 13.8. Headings Not to Affect Interpretation.........................166
Section 13.9. Benefits of Agreement.........................................166
Section 13.10. Special Notices to the Rating Agencies.......................166
Section 13.11. Counterparts.................................................168
Section 13.12. Intention of Parties.........................................168
Section 13.13. Recordation of Agreement.....................................169
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<PAGE>
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate................................A-1
Exhibit A-2 Form of Class A-2 Certificate................................A-2
Exhibit A-3 Form of Class B Certificate..................................A-3
Exhibit A-4 Form of Class C Certificate..................................A-4
Exhibit A-5 Form of Class D Certificate..................................A-5
Exhibit A-6 Form of Class E Certificate..................................A-6
Exhibit A-7 Form of Class F Certificate..................................A-7
Exhibit A-8 Form of Class G Certificate..................................A-8
Exhibit A-9 Form of Class H Certificate..................................A-9
Exhibit A-10 Form of Class J Certificate.................................A-10
Exhibit A-11 Form of Class K Certificate.................................A-11
Exhibit A-12 Form of Class L Certificate.................................A-12
Exhibit A-13 Form of Class M Certificate.................................A-13
Exhibit A-14 Form of Class N Certificate.................................A-14
Exhibit A-15 Form of Class O Certificate.................................A-15
Exhibit A-16 Form of Class R-I Certificate...............................A-13
Exhibit A-17 Form of Class R-II Certificate..............................A-14
Exhibit A-18 Form of Class R-III Certificate.............................A-15
Exhibit A-19 Form of Class X Certificate.................................A-16
Exhibit B-1 Form of Initial Certification of Trustee.....................B-1
Exhibit B-2 Form of Final Certification of Trustee.......................B-2
Exhibit C Form of Request for Release....................................C
Exhibit D-1 Form of Transferor Certificate for Transfers of
Definitive Privately Offered Certificates..................D-1-1
Exhibit D-2A Form I of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates.................D-2A-1
Exhibit D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates.................D-2B-1
Exhibit D-3A Form I of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered Certificates....D-3B-1
Exhibit D-3B Form II of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered Certificates....D-3B-1
Exhibit E Form of Transferor Certificate for Transfers
of REMIC Residual Certificate..................................E
Exhibit F Form of Transfer Affidavit and Agreement for
Transfers of REMIC Residual Certificates.......................F
Exhibit G-1 Form of Monthly Certificateholder Report.....................G-1
Exhibit G-2 Form of Specially Serviced Asset Report......................G-2
Exhibit H-1 Comparative Financial Status Report..........................H-1
Exhibit H-2 Delinquent Loan Status Report................................H-2
Exhibit H-3 Historical Loan Modification Report..........................H-3
Exhibit H-4 Historical Loss Estimate Report..............................H-4
Exhibit H-5 REO Status Report............................................H-5
Exhibit H-6 Watch List ..................................................H-6
Exhibit H-7 Operating Statement Analysis.................................H-7
Exhibit H-8 NOI Adjustment Worksheet ....................................H-8
Exhibit H-9 CSSA Reports ................................................H-9
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Exhibit H-10 CSSA Reports ...............................................H-10
Exhibit H-11 CSSA Reports ...............................................H-11
Exhibit I Mortgage Loan Report.........................................I-1
SCHEDULES
Schedule I MSMC Loan Schedule.............................................I
Schedule II RFC Loan Schedule.............................................II
Schedule III Wachovia Loan Schedule.......................................III
vi
<PAGE>
THIS POOLING AND SERVICING AGREEMENT is dated and effective as of March 1,
1999 (this "AGREEMENT") among MORGAN STANLEY CAPITAL I INC., as depositor (the
"DEPOSITOR"), AMRESCO SERVICES, L.P., as master servicer (the "MASTER
SERVICER"), BANC ONE MORTGAGE CAPITAL MARKETS, LLC, as special servicer (the
"SPECIAL SERVICER"), LASALLE NATIONAL BANK, as trustee (the "TRUSTEE") of the
trust created hereby (the "TRUST"), and ABN AMRO BANK N.V., as fiscal agent
(only in its capacity as a party required to make Advances pursuant to Article
IV hereof) (the "FISCAL AGENT").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire certain Mortgage Loans from
Residential Funding Corporation, as seller ("RFC" and, in such capacity, a
"SELLER"), Wachovia Bank, National Association ("WACHOVIA" and, in such
capacity, a "SELLER") and the remaining Mortgage Loans from Morgan Stanley
Mortgage Capital Inc. ("MSMC" and also a "SELLER") and, as of such date, the
Depositor will be the owner of the Mortgage Loans and the other property being
conveyed by it to the Trustee for inclusion in the Trust. On the Closing Date,
the Depositor hereby creates the Trust and appoints the Trustee to serve as
trustee of the Trust. On the Closing Date, the Depositor will acquire (i) the
REMIC I Regular Interests and the Class R-I Certificates as consideration for
its transfer to the Trust of the Mortgage Loans (excluding the right to Excess
Interest in respect of the Hyper-Amortization Loans) and the other property
constituting the Trust described in the definition of "REMIC I"; (ii) the REMIC
II Regular Interests and the Class R-II Certificates as consideration for its
transfer of the REMIC I Regular Interests to the Trust; and (iii) the REMIC III
Certificates as consideration for its transfer of the REMIC II Regular Interests
and the assets comprising the grantor trust to the Trust. The Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
foregoing and the issuance of (a) the REMIC I Regular Interests and the Class
R-I Certificates representing in the aggregate the entire beneficial ownership
of REMIC I, (b) the REMIC II Regular Interests and the Class R-II Certificates
representing in the aggregate the entire beneficial ownership of REMIC II and
(c) the REMIC III Certificates representing in the aggregate the entire
beneficial ownership of REMIC III, with the Class O Certificates representing
both an interest in REMIC III and the entire beneficial ownership of the assets
of the grantor trust. All covenants and agreements made by the Depositor and the
Trustee herein with respect to the Mortgage Loans and the other property
constituting the Trust are for the benefit of the Holders of the Certificates.
The parties hereto are entering into this Agreement, and the Trustee is
accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
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REMIC I
As provided herein, the Trustee will make the election described in Section
12.1 hereof for the segregated pool of assets consisting of the Mortgage Loans
(excluding the right to Excess Interest in respect of the Hyper-Amortization
Loans) and certain related assets to be treated for federal income tax purposes
as a real estate mortgage investment conduit (a "REMIC" and, such particular
segregated pool of assets, "REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole class of "residual interests" in REMIC I.
A separate uncertificated REMIC I Regular Interest will be issued with
respect to each Mortgage Loan. Each REMIC I Regular Interest will represent the
right to receive principal corresponding to the initial Stated Principal Balance
of a related Mortgage Loan and interest thereon at a remittance rate (the "REMIC
I Remittance Rate") equal to the Net Mortgage Rate of the related Mortgage Loan
in effect. For purposes of Treasury regulation Section 1.860G-1 (a)(4)(iii), the
"latest possible maturity date" for each REMIC I Regular Interest shall be the
Scheduled Final Distribution Date. The Class R-I Certificates will represent the
sole class of residual interests in REMIC I for purposes of the REMIC Provisions
and will have no principal balances and no remittance rate, but will be entitled
to receive on each Distribution Date any portion of the Available Distribution
Amount for such Distribution Date not otherwise deemed distributed on the REMIC
I Regular Interests.
REMIC II
As provided herein, the Trustee will make the election described in Section
12.1 hereof for the segregated pool of assets consisting of the REMIC I Regular
Interests to be treated for federal income tax purposes as a separate REMIC
(such particular pool of assets, "REMIC II"). The REMIC II Regular Interests
will be designated as representing the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as representing the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
Fifteen separate uncertificated REMIC II Regular Interests will be issued
and are designated as the "regular interests" in REMIC II. The following table
irrevocably sets forth the designation, remittance rate (the "REMIC II
Remittance Rate") and initial Uncertificated Principal Balance for each REMIC II
Regular Interest. For purposes of Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" of each REMIC II
Regular Interest shall be the Scheduled Final Distribution Date. The Class R-II
Certificates will have no principal balances and no remittance rate, but will be
entitled to receive on each Distribution Date any portion of the REMIC II
Distribution Amount for such Distribution Date not otherwise deemed distributed
on the REMIC II Regular Interests.
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REMIC II Regular Interests
- -----------------------------------------------------------------------------
Initial REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
- -----------------------------------------------------------------------------
A-1 7.198% $183,000,000
- -----------------------------------------------------------------------------
A-2 7.198% $429,287,000
- -----------------------------------------------------------------------------
B 7.198% $42,967,000
- -----------------------------------------------------------------------------
C 7.198% $45,116,000
- -----------------------------------------------------------------------------
D 7.198% $12,890,000
- -----------------------------------------------------------------------------
E 7.198% $34,374,000
- -----------------------------------------------------------------------------
F 7.198% $17,187,000
- -----------------------------------------------------------------------------
G 7.198% $10,742,000
- -----------------------------------------------------------------------------
H 7.198% $23,632,000
- -----------------------------------------------------------------------------
J 7.198% $8,594,000
- -----------------------------------------------------------------------------
K 7.198% $12,890,000
- -----------------------------------------------------------------------------
L 7.198% $6,445,000
- -----------------------------------------------------------------------------
M 7.198% $8,594,000
- -----------------------------------------------------------------------------
N 7.198% $8,593,000
- -----------------------------------------------------------------------------
O 7.198% $15,039,407
- -----------------------------------------------------------------------------
REMIC III
As provided herein, the Trustee will make the election described in
Section 12.1 for the segregated pool of assets hereof consisting of the REMIC II
Regular Interests to be treated for federal income tax purposes as a separate
REMIC (such particular pool of assets, "REMIC III"). The REMIC III Regular
Certificates (and, in the case of the Class O Certificates, the Class O REMIC
Interest represented by the Class O Certificates) will be designated as
representing the "regular interests" in REMIC III and the Class R-III
Certificates will be designated as representing the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
Sixteen separate Classes of REMIC III Regular Certificates will be
issued, which will represent in the aggregate thirty separate "regular
interests" in REMIC III. The following table irrevocably sets forth the
designation, the pass-through rate (the "PASS-THROUGH RATE") and the initial
aggregate principal balance (the "CLASS PRINCIPAL BALANCE") for each Class of
REMIC III Regular Certificates. For purposes of Treasury regulation Section
1.860G-1 (a)(4)(iii), the "latest possible maturity date" of each Class of REMIC
III Regular Certificates shall be the Scheduled Final Distribution Date. The
Class R-III Certificates will have no principal balances and no pass-through
rate, but will be entitled to receive on each Distribution Date any portion of
the REMIC III Distribution Amount for such Distribution Date not otherwise
deemed distributed on the REMIC III Regular Certificates.
3
<PAGE>
REMIC III Regular Certificates
- -------------------------------------------------------------------------------
Initial Initial Class
Designation Pass-Through Rate(1) Principal Balance
- -------------------------------------------------------------------------------
Class A-1 6.37 % per annum $183,000,000
- -------------------------------------------------------------------------------
Class A-2 6.71 % per annum $429,287,000
- -------------------------------------------------------------------------------
Class X(2) .64 % per annum $859,350,407
- -------------------------------------------------------------------------------
Class B 6.81 % per annum $42,967,000
- -------------------------------------------------------------------------------
Class C 6.95 % per annum $45,116,000
- -------------------------------------------------------------------------------
Class D 7.27 % per annum $12,890,000
- -------------------------------------------------------------------------------
Class E 7.27 % per annum $34,374,000
- -------------------------------------------------------------------------------
Class F 7.27 % per annum $17,187,000
- -------------------------------------------------------------------------------
Class G 6.37 % per annum $10,742,000
- -------------------------------------------------------------------------------
Class H 6.37 % per annum $23,632,000
- -------------------------------------------------------------------------------
Class J 6.37 % per annum $8,594,000
- -------------------------------------------------------------------------------
Class K 6.37 % per annum $12,890,000
- -------------------------------------------------------------------------------
Class L 6.37 % per annum $6,445,000
- -------------------------------------------------------------------------------
Class M 6.37 % per annum $8,594,000
- -------------------------------------------------------------------------------
Class N 6.37 % per annum $8,593,000
- -------------------------------------------------------------------------------
Class O(3) 6.37 % per annum $15,039,407
- -------------------------------------------------------------------------------
ARTICLE I.
DEFINITIONS
Section 1.1. DEFINITIONS. Whenever used in this Agreement, including
without limitation in the Preliminary Statement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
"ACCOUNTANT" means a person engaged in the practice of accounting
who is Independent and is a member of the American Institute of Certified Public
Accountants.
- --------
(1) The Pass-Through Rates for the Class A-1, Class A-2, Class B, Class C,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates for each Distribution Date shall be equal to the Fixed Rates
per annum set forth in the table; provided, in each case, that the
Pass-Through Rate will not exceed the weighted average of the REMIC II
Remittance Rates for such Distribution Date.
(2) The Class X Certificates will not have a Principal Amount. Interest will
accrue on the notional amount thereof, at a rate equal to the weighted
average of the REMIC II Remittance Rates minus the weighted average of the
Pass-Through Rates of the classes of certificates that have Principal
Amounts.
(3) The Class O Certificates are an investment unit consisting of a REMIC
regular interest and beneficial ownership of Excess Interest in respect of
mortgage loans having a hyper-amortization feature.
4
<PAGE>
"ACCRUED CERTIFICATE INTEREST" means with respect to any Class of REMIC III
Regular Certificates (other than the Class X Certificates) for any Distribution
Date, the product of the Certificate Principal Balance of such Class as of the
close of the preceding Distribution Date (or, in the case of the first
Distribution Date, as of the Closing Date) and one-twelfth of the applicable
Pass-Through Rate; and with respect to the Class X Certificates, the Class X
Accrued Certificate Interest. The Accrued Certificate Interest in respect of
each Class of REMIC III Regular Certificates for each Distribution Date shall
accrue on the basis of a 360-day year consisting of twelve 30-day months.
"ACT" shall have the meaning set forth in Section 11.3.
"ADDITIONAL MASTER SERVICING COMPENSATION" has the meaning set forth in
Section 8.10(a).
"ADDITIONAL SPECIAL SERVICING COMPENSATION" has the meaning set forth in
Section 8.10(b).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (a) Special
Servicing Fees, Liquidation Fees and Workout Fees; (b) Advance Interest not paid
out of Default Interest, (c) amounts paid by the Trust to indemnify the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or any other
Person pursuant to the terms of this Agreement; (d) the items described in
clauses (ix) and (xiii) of Section 5.2(b); (e) to the extent not covered by
indemnification by one of the parties hereto or paid by a source other than the
Trust, any federal, state or local taxes imposed on the Trust or any of its
assets or transactions; and (f) to the extent not included in the calculation of
a Realized Loss and not covered by indemnification by one of the parties hereto
or otherwise, any other unanticipated cost, liability, or expense of the Trust
which the Trust has not recovered, and in the judgment of the Master Servicer
(or, in the case of a Specially Serviced Mortgage Loan, the Special Servicer)
will not recover, from the related Mortgagor or Mortgaged Property or otherwise.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable pursuant to Section 4.5 to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent on
outstanding Advances made by any such Person out of its own funds.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as published
in the "Money Rates" section of The Wall Street Journal from time to time or
such other publication as determined by the Trustee in its reasonable
discretion.
"ADVERSE RATING EVENT" shall have the meaning set forth in Section 8.35(a).
"ADVERSE REMIC EVENT" shall have the meaning set forth in Section 12.1(j).
"AFFILIATE" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
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"AGREEMENT" means this Pooling and Servicing Agreement and all amendments
and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means as to any Mortgage Loan the date prior
to the stated maturity thereof that the Mortgage Rate and the rate of principal
amortization increases.
"APPRAISAL" means an appraisal by a Qualified Appraiser that is prepared in
accordance with 12 C.F.R. 225.64.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan (including
without limitation an REO Mortgage Loan), not later than the earliest of (i) the
date 120 days after the occurrence of any delinquency in payment with respect to
such Mortgage Loan if such delinquency remains uncured, (ii) the date 60 days
after receipt of notice that the related Mortgagor has filed a bankruptcy
petition or a receiver is appointed in respect of the related Mortgaged
Property, provided such petition or appointment is still in effect, (iii) the
effective date of any modification to a Money Term of a Mortgage Loan, other
than the extension of the date that a Balloon Payment is due for a period of
less than six months from the initial maturity date, and (iv) the date 30 days
following the date the related Mortgaged Property becomes an REO Property.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal Loan
with respect to which an Appraisal or internal valuation is performed pursuant
to Section 6.6, an amount, calculated as of the first Determination Date that is
at least fifteen days after the date on which the report in respect of the most
recent such Appraisal or internal valuation, as the case may be, is completed,
equal to the excess, if any, of (a) the sum of (i) the Stated Principal Balance
of such Required Appraisal Loan, (ii) to the extent not previously advanced, all
unpaid interest on such Mortgage Loan at a per annum rate equal to the Mortgage
Rate, (iii) all unreimbursed Advances and interest on Advances at the Advance
Rate with respect to such Mortgage Loan, and (iv) to the extent not previously
advanced by the Master Servicer, the Trustee or the Fiscal Agent, all currently
due and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property, as the case may be (in each case, net of any amounts escrowed for such
items), over (b) 90% of the Appraised Value (net of any prior mortgage liens) of
the related Mortgaged Property or REO Property as determined by such Appraisal
or internal valuation, as the case may be. Notwithstanding the foregoing, if an
internal valuation of the Mortgaged Property is performed, the Appraisal
Reduction will equal the greater of (A) the amount calculated above and (B) 25%
of the Stated Principal Balance of the Mortgage Loan. Furthermore, if an
appraisal is not obtained from an MAI appraiser in accordance with Section 6.6
hereof, then until such an appraisal is obtained the Appraisal Reduction will
equal 25% of the Stated Principal Balance of the Mortgage Loan. Each Appraisal
Reduction will be reduced to zero as of the date the related Mortgage Loan is
brought current under the then-current terms of the Mortgage Loan for at least
three consecutive months, paid in full, liquidated, repurchased or otherwise
disposed of. An appraisal for any Required Appraisal Loan that has not been
brought current for at least three consecutive months (or paid in full,
liquidated, repurchased or otherwise disposed of) will be updated annually, with
corresponding adjustments to the amount of the Appraisal Reduction.
"APPRAISED VALUE" means, with respect to any Mortgaged Property or REO
Property, the appraised value thereof determined by an Appraisal of such
property or, in the case of an internal valuation performed pursuant to Section
6.6, the value of such property determined by such internal valuation.
"ASSET STATUS REPORT" has the meaning set forth in Section 8.29(c).
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"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"ASSUMED MONTHLY PAYMENT" means, (a) with respect to any Balloon Mortgage
Loan (other than a Balloon Mortgage Loan that has become an REO Mortgage Loan)
for its Stated Maturity Date (provided that such Mortgage Loan has not been paid
in full, and no other Liquidation Event has occurred in respect thereof, on or
before the end of the Collection Period in which such Stated Maturity Date
occurs) and for any subsequent Due Date therefor as of which such Mortgage Loan
remains outstanding and part of the Trust Fund, if no Monthly Payment (other
than the related delinquent Balloon Payment) is otherwise due for such Due Date,
the scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof for such Due Date equal to the Monthly Payment (other than any
related delinquent Balloon Payment) that would have been due in respect of such
Mortgage Loan on such Due Date if it had been required to continue to accrue
interest in accordance with its terms, and to pay principal in accordance with
the amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, its most recent scheduled Maturity Date; and (b)
with respect to any REO Mortgage Loan, for any Due Date therefor as of which the
related REO Property remains part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the Monthly Payment (or, in the case of a Balloon Mortgage
Loan described in clause (a) of this definition, the Assumed Monthly Payment)
that was due in respect of the subject Mortgage Loan for the last Due Date prior
to its becoming an REO Mortgage Loan.
"AUTHENTICATING AGENT" means any authenticating agent appointed by the
Trustee pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE DISTRIBUTION AMOUNT" means (x) with respect to REMIC I and any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date (including any deposits or withdrawals pursuant to Section
5.3.2 ) that represent payments and other collections on or in respect of the
Mortgage Loans and any REO Properties that were received by the Master Servicer
or the Special Servicer through the end of the related Collection Period
(exclusive of any such amounts that were deposited in the Distribution Account
in error, that are payable to the Trustee in respect of unpaid Trustee Fees,
that are Excess Interest or that constitute Prepayment Premiums) and (b) if and
to the extent not already among the amounts described in clause (a), (i) the
aggregate amount of any P&I Advances made by the Master Servicer, the Trustee or
the Fiscal Agent for such Distribution Date pursuant to Section 4.1 and/or
Section 4.3 and (ii) the aggregate of any Compensating Interest Payments made by
the Master Servicer for such Distribution Date pursuant to Section 8.21(b); (y)
with respect to
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REMIC II and any Distribution Date, all amounts distributed on the REMIC I
Regular Interests; and (z) with respect to REMIC III and any Distribution Date,
all amounts distributed on the REMIC II Regular Interests.
"BALLOON MORTGAGE LOAN" means any Mortgage Loan that by its original terms
or by virtue of any modification entered into as of the Closing Date provides
for an amortization schedule extending beyond its Maturity Date.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"BANKRUPTCY CODE" means the federal bankruptcy code, as amended from time
to time (Title II of the United States Code).
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.6; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BREACH" has the meaning set forth in Section 2.3(a).
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday, (ii) a
legal holiday in New York, New York or in any of the principal cities in which
the Trustee, the Master Servicer or the Special Servicer conducts trust or
servicing operations with respect to this Agreement, or (iii) a day on which
banking institutions or savings associations in New York, New York or in any of
the principal cities in which the Trustee, the Master Servicer or the Special
Servicer conducts trust or servicing operations with respect to this Agreement,
are authorized or obligated by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any defaulted Mortgage Loan other than an
REO Mortgage Loan, the receipt of all related Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries in connection
with a Final Recovery Determination.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.).
"CERTIFICATES" means the Depositor's Series 1999-RM1 Commercial Mortgage
Pass-Through Certificates issued hereunder.
"CERTIFICATE FACTOR" means, with respect to any Class of REMIC III Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then-related
Class Principal Balance or Class X Notional Amount, as the case may be, and the
denominator of which is the related initial Class Principal Balance or initial
Class X Notional Amount, as the case may be, as of the Closing Date.
"CERTIFICATE NOTIONAL AMOUNT" means, with respect to any Class X
Certificate as of any date of determination, the then notional principal amount
on which such Certificate accrues interest equal to the product of (a) the
Percentage Interest evidenced by such Certificate, multiplied by (b) the
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then Class X Notional Amount. For purposes of the REMIC Provisions, the Class X
Notional Amount may be described as the Sum of the Component Notional Amounts of
the Component Interests at such time.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Clearing Agency or on the books of a Person maintaining an account with
the Clearing Agency directly or as an indirect participant, in accordance with
the rules of the Clearing Agency.
"CERTIFICATE PRINCIPAL Balance" means, with respect to any Principal
Balance Certificate, as of any date of determination, the then-outstanding
principal amount of such Certificate equal to the product of (a) the Percentage
Interest evidenced by such Certificate, multiplied by (b) the then Class
Principal Balance of the Class of Certificates to which such Certificate
belongs.
"CERTIFICATE REGISTER" has the meaning provided in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to Section
3.2.
"CERTIFICATEHOLDER" has the same meaning as "Holder."
"CLASS" means, collectively, all of the Certificates bearing the same
alphabetical or alphanumerical class designation.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS X CERTIFICATES,"
"CLASS B CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N CERTIFICATES," "CLASS O
CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II CERTIFICATES," and "CLASS
R-III CERTIFICATES" mean the Certificates designated as "Class A-1," "Class
A-2," "Class X," "Class B," "Class C," "Class D," "Class E," "CLASS F," "CLASS
G," "CLASS H," "CLASS J," "CLASS K," "CLASS L," "CLASS M," "CLASS N," "CLASS O,"
"CLASS R-I," "CLASS R-II," AND "CLASS R-III," respectively, on the faces
thereof, in substantially the forms attached hereto as Exhibits A-1 through A-19
hereof.
"CLASS A CERTIFICATES" means the Class A-1 Certificates and Class A-2
Certificates, collectively.
"CLASS D CERTIFICATE RATE" means, with respect to any Distribution Date,
one-twelfth of (x) the REMIC II Remittance Rate minus (y) 0.03%.
"CLASS E CERTIFICATE RATE" means, with respect to any Distribution Date,
one-twelfth of (x) the REMIC II Remittance Rate minus (y) 0.03%.
"CLASS F CERTIFICATE RATE" means, with respect to any Distribution Date,
one-twelfth of (x) the REMIC II Remittance Rate minus (y) 0.03%.
"CLASS INTEREST SHORTFALL" means, with respect to any Class of Principal
Balance Certificates and any Distribution Date (except the initial Distribution
Date, with respect to which the Class Interest Shortfall for each such Class
will equal zero), the sum of (a) the excess, if any, of (i) all Distributable
Certificate Interest in respect of such Class of Certificates for the
immediately preceding
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Distribution Date, over (ii) all distributions of Distributable Certificate
Interest made with respect to such Class of Certificates on the immediately
preceding Distribution Date pursuant to Section 6.4, and (b), to the extent
permitted by applicable law, interest for the related Interest Accrual Period
accrued at the applicable Pass-Through Rate on the amount of any such excess
described in the immediately preceding clause (a). With respect to any Class of
Principal Balance Certificates, the interest referred to in clause (b) of the
preceding sentence shall accrue on the basis of a 360-day year consisting of
twelve 30-day months.
"CLASS O GRANTOR TRUST INTEREST" means that portion of the rights
represented by the Class O Certificate that evidences beneficial ownership of
the grantor trust assets, as described in Section 12.1(b) hereof.
"CLASS O REMIC INTEREST" means that portion of the rights represented by
the Class O Certificate that evidences a regular interest in REMIC III, which
rights consist of the rights to the distributions described in Section 6.4
hereof and all other rights of the Holders of the Class O Certificates other
than those comprising the Class O Grantor Trust Interest.
"CLASS PRINCIPAL BALANCE" means the aggregate principal amount of any Class
of Principal Balance Certificates outstanding as of any date of determination.
On each Distribution Date, the Class Principal Balance of each Class of the
Principal Balance Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 6.4 and, if and to the extent appropriate, shall be further reduced on
such Distribution Date as provided in Section 6.5.
"CLASS X ACCRUED CERTIFICATE INTEREST" means, with respect to any
Distribution Date, the product of the Class X Notional Amount as of the close of
business on the preceding Distribution Date and one-twelfth of the Class X
Certificate Rate. For purposes of the REMIC Provisions, Class X Accrued
Certificate Interest, with respect to such Class and any Distribution Date, may
be expressed as the sum of the products of the Component Notional Amount of each
Component Interest on such Distribution Date and one-twelfth of the Component
Interest Rate for such Component Interest. Class X Accrued Certificate Interest
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"CLASS X CERTIFICATE RATE" means, with respect to any Distribution Date,
the excess of (x) REMIC II Remittance Rate over (y) the weighted average of the
Pass-Through Rates of the Principal Balance Certificates (weighted on the basis
of their respective Certificate Balances on such Distribution Date).
"CLASS X CERTIFICATES" means the Class of Certificates, representing
fifteen Classes of "regular interests" in REMIC III within the meaning of the
REMIC Provisions, that is entitled on each Distribution Date to receive Accrued
Certificate Interest for such Class, and Prepayment Premiums collected during
the related period to the extent set forth in Section 6.4(c), and is designated
as Class X on the face thereof.
"CLASS X NOTIONAL AMOUNT" means the notional principal amount by reference
to which the amount of interest payable to the Holders of the Class X
Certificates is computed and described, which, as of any date of determination,
is equal to the aggregate Class Principal Balances of the Principal Balance
Certificates on such date. For purposes of the REMIC Provisions, the Class X
Notional Amount may be expressed as the sum of the Component Notional Amounts of
all Component Interests of the
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Class X Certificates as of the date of determination. The Class X Notional
Amount does not represent a right to receive distributions in respect of amount
of principal from the Trust.
"CLEARING AGENCY" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"CLOSING DATE" means March 9, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended, any successor
statutes thereto, and applicable U.S. Department of Treasury regulations issued
pursuant thereto in temporary or final form and proposed regulations thereunder,
to the extent applicable to the Trust or any REMIC Pool by reason of their
proposed effective dates.
"COLLECTION ACCOUNT" has the meaning set forth in Section 5.1(a).
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or, in the case of the first Distribution
Date, on the day after the Cut-off Date) and ending on the Determination Date in
the month in which the Distribution Date occurs.
"COMPARATIVE FINANCIAL STATUS REPORT": A report substantially containing
the content described in Exhibit H-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 as of the
date of the latest financial information available immediately preceding the
preparation of such report for each of the following four 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))
prepared in accordance with Section 8.14(j). For the purposes of the Master
Servicer's production of any such report that is required to state information
for any period prior to the Cut-off Date, the Master Servicer may conclusively
rely (without independent verification), absent manifest error, on information
provided to it by the related Mortgage Loan Seller.
"COMPENSATING INTEREST PAYMENTS" means, with respect to any Distribution
Date, any payments required to be made by the Master Servicer pursuant to
Section 8.21(b) to cover Prepayment Interest Shortfalls.
"COMPONENT INTEREST" means any of the fifteen component "regular interests"
(within the meaning of the REMIC Provisions) comprising the Class X
Certificates, each of which relates to a separate Class of REMIC II Regular
Interests and bears interest at the Component Interest Rate for such Class on a
notional amount equal to the Uncertificated Principal Balance of the Class of
REMIC II Regular Interests related to such Class (its "Component Notional
Amount"). The Component Interests are designated as Class A-1X, Class A-2X,
Class BX, Class CX, Class DX, Class EX, Class FX, Class GX, Class HX, Class JX,
Class KX, Class MX, Class NX and Class OX, which interests relate to REMIC II
Regular Interests A-1, A-2, B, C, D, E, F, G, H, J, K, L, M, N and O,
respectively.
"COMPONENT INTEREST RATE" means, with respect to any Component Interest,
the per annum rate equal to the excess of the REMIC II Remittance Rate for its
related Class of REMIC II
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Regular Interests over the Pass-Through Rate for the Class of Certificates
bearing the same alphabetical designation as such Component Interest's related
Class of REMIC II Regular Interests.
"COMPONENT NOTIONAL AMOUNT" shall have the meaning set forth in the
definition of "Component Interest".
"CONDEMNATION PROCEEDS" means any awards resulting from the full or partial
condemnation or any eminent domain proceeding or any conveyance in lieu or in
anticipation thereof with respect to a Mortgaged Property or REO Property by or
to any governmental or quasi-governmental authority.
"CONTROLLING CLASS" means the most subordinate Class of Principal Balance
Certificates outstanding at any time of determination (or, if the then Class
Principal Balance of such Class of Certificates is less than 25% of the initial
Class Principal Balance thereof and there is a more senior Class of Principal
Balance Certificates then outstanding, the next most subordinate Class of
Principal Balance Certificates). For purposes of determining the Controlling
Class, the Class A Certificates will be treated as a single Class of
Certificates, the Subordinate Certificates will be subordinate to the Class A
Certificates, and each Class of Subordinate Certificates will be subordinate to
each other Class of Subordinate Certificates, if any, with an earlier
alphabetical Class designation. As of the Closing Date, the Controlling Class
will be the Class O Certificates. For purposes of calculating the aggregate
Certificate Balance of the Principal Balance Certificates in connection with the
determination of the Controlling Class, the amount of any Appraisal Reduction
will be deducted from the Certificate Balance of the related Certificates (other
than in respect of the Class K, Class L, Class M, Class N and Class O
Certificates).
"CONTROLLING PERSON" means, with respect to any Person, any other Person
that constitutes a "controlling person" within the meaning of Section 15 of the
Securities Act.
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Trustee or the New York Presenting Office (if any). The
principal corporate trust office of the Trustee is presently located at 135
South LaSalle Street, Suite 1625, Chicago, IL 60674, Attention: Asset-Backed
Securities Trust Services Group--Morgan Stanley Series 1999-RM1, or at such
other address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer and the Special Servicer.
"CORRECTED MORTGAGE LOAN" means any Mortgage Loan that had been a Specially
Serviced Mortgage Loan, has ceased to be such in accordance with the definition
of "Specially Serviced Mortgage Loan" (other than by reason of a Liquidation
Event occurring in respect of such Mortgage Loan or a related Mortgaged Property
becoming an REO Property) and is not the subject of an existing Servicing
Transfer Event.
"CPR" means an assumed constant rate of prepayment each month (which is
quoted on a per annum basis) relative to the then-outstanding principal balance
of a pool of mortgage loans for the life of such mortgage loans.
"CROSS-COLLATERALIZED MORTGAGE LOANS" means any two or more Mortgage Loans
listed on the Mortgage Loan Schedule that are cross-collateralized with each
other.
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"CSSA" means the Commercial Real Estate Secondary Market and Securitization
Association.
"CSSA REPORTS": With respect to the Mortgage Loans, data files which
contain the information substantially in the forms of the CSSA standard
reporting package attached as Exhibits H-9, H-10 and H-11, as the same may be
modified by the CSSA from time to time.
"CURRENT PRINCIPAL DISTRIBUTION AMOUNT" means with respect to the Mortgage
Loans for any Distribution Date, an amount equal to the aggregate of:
(a) the principal portions of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments due or deemed due, as the case
may be, in respect of the Mortgage Loans, including without limitation any
REO Mortgage Loans, for their respective Due Dates occurring during the
related Collection Period; and
(b) that portion of all payments (including without limitation
Principal Prepayments and Balloon Payments), Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Repurchase Proceeds, payments of
Substitution Shortfall Amounts, REO Income and other collections that were
received on or in respect of the Mortgage Loans (including without
limitation any REO Mortgage Loans) or received on or in respect of any
related REO Properties, during the related Collection Period and were
identified and applied by the Master Servicer in accordance with Section
1.2 as payments or other recoveries of principal of such Mortgage Loans, in
each case net of any portion of such amounts that represents (i) a payment
or other recovery of the principal portion of any Monthly Payment (other
than a Balloon Payment) due, or of the principal portion of any Assumed
Monthly Payment deemed due, in respect of any such Mortgage Loan on a Due
Date during or prior to the related Collection Period and not previously
paid or recovered or (ii) an early payment (other than in the form of a
Principal Prepayment) of the principal portion of any Monthly Payment due
in respect of any such Mortgage Loan on a Due Date subsequent to the end of
the related Collection Period.
"CUSTODIAN" means the Trustee or any Person who is appointed by the Trustee
at any time as custodian pursuant to Section 7.9(h) and who is unaffiliated with
the Depositor and each Seller.
"CUT-OFF DATE" means March 1, 1999.
"CUT-OFF DATE PRINCIPAL BALANCE" means, with respect to any Mortgage Loan
included in the Trust Fund as of the Closing Date, the unpaid principal balance
of such Mortgage Loan as of the Cut-off Date, reduced by all payments of
principal due on or before the Cut-off Date, whether or not paid.
"DCR" means Duff & Phelps Credit Rating Co. or its successor in interest.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage Loan (or
group of Cross-Collateralized Mortgage Loans) for any specified period, the debt
service coverage ratio calculated in accordance with Exhibit H-1.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to any Mortgage Loan
for any Due Date, the amount of the reduction of the Monthly Payment for such
Due Date with respect to such Mortgage Loan as a result of any proceeding under
bankruptcy law or any similar proceeding (other than
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a Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred, but not forgiven, such reduction shall not constitute a Debt
Service Reduction Amount.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan that is at least 60 days
delinquent in respect of any Monthly Payment (such delinquency to be determined
without giving effect to any grace period permitted by the related Mortgage or
Mortgage Note) or as to which the Master Servicer has made a determination that
such Mortgage Loan's becoming so delinquent is imminent.
"DEFAULT INTEREST" MEANS, with respect to any Mortgage Loan (including
without limitation an REO Mortgage Loan), any amounts collected thereon, other
than Late Fees and Prepayment Premiums, that represent additional interest in
excess of interest on the principal balance of such Mortgage Loan accrued at the
related Mortgage Rate.
"DEFAULTING PARTY" has the meaning set forth in Section 9.1(b).
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property relating to a
Mortgage Loan in an amount less than the then-outstanding indebtedness under
such Mortgage Loan, which valuation results from a proceeding initiated under
the Bankruptcy Code, as amended from time to time, and that reduces the amount
the Mortgagor is required to pay under such Mortgage Loan.
"DEFICIENT VALUATION AMOUNT" means the amount by which the total amount due
with respect to a Mortgage Loan (excluding interest not yet accrued), including
the principal balance of a Mortgage Loan plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased from the
Trust pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans is or are substituted.
"DELINQUENT LOAN STATUS REPORT" means a report substantially containing the
content described in Exhibit H-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 1
Collection Period, delinquent 2 Collection Periods, delinquent 3 Collection
Periods or more, current but specially serviced, or were in foreclosure but were
not REO Property prepared in accordance with Section 8.14(j).
"DEPOSITOR" means Morgan Stanley Capital I Inc., a Delaware corporation,
and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.6(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated March 9,
1999, by and among the Depositor, the Trustee and the Depository.
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"DETERMINATION DATE" means, with respect to any Distribution Date, the
eighth day of the month in which such Distribution Date occurs (or, if such
eighth day is not a Business Day, the Business Day immediately preceding such
eighth day).
"DIRECTLY OPERATE" means, with respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust, in each case other
than through an Independent Contractor; provided, however, that the Trustee (or
the Special Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an REO Property solely because the Trustee (or the Special
Servicer on behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance, or makes decisions
as to repairs, tenant improvements or capital expenditures with respect to such
REO Property or undertakes any ministerial action incidental thereto.
"DISCOUNT RATE" has the meaning set forth in Section 6.4(c).
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any State
or any political subdivision thereof, or any agency or instrumentality of any of
the foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except for FHLMC, a majority of its board
of directors is not selected by any such governmental unit), (ii) a foreign
government, international organization or any agency or instrumentality of
either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
and (v) any other Person so designated by the Trustee based upon an Opinion of
Counsel that the holding of an ownership interest in a Residual Certificate by
such Person may cause any of the REMIC Pools, or any Person having an Ownership
Interest in any Class of Certificates, other than such Person, to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the transfer of an Ownership Interest in a Residual Certificate
to such Person. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any Class of
REMIC III Regular Certificates for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date allocated to such Class of Certificates as set forth below, and increased
by any Class Interest Shortfall in respect of such Class of Certificates for
such Distribution Date. The Net Aggregate Prepayment Interest Shortfall, if any,
for each Distribution Date shall be allocated on such Distribution Date among
the respective Classes of REMIC III Regular Certificates, pro rata, in
accordance with the respective amounts of Accrued Certificate Interest for such
Classes of Certificates for such Distribution Date.
"DISTRIBUTION ACCOUNT" has the meaning set forth in Section 5.3.
"DISTRIBUTION DATE" means the 15th day of each month or, if any such 15th
day is not a Business Day, the next succeeding Business Day, commencing in
April, 1999.
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"DUE DATE" means: (i) with respect to any Mortgage Loan (other than an REO
Mortgage Loan) on or prior to its Maturity Date, the day of the month set forth
in the related Mortgage Note on which each Monthly Payment thereon is scheduled
to be first due; (ii) with respect to any Balloon Mortgage Loan (other than an
REO Mortgage Loan) after the Maturity Date therefor, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment (other than, to
the extent different, the Balloon Payment) on such Mortgage Loan had been
scheduled to be first due; and (iii) with respect to any REO Mortgage Loan, the
day of the month set forth in the related Mortgage Note on which each Monthly
Payment on such Mortgage Loan prior to its becoming an REO Mortgage Loan had
been scheduled to be first due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated by any two of the Rating Agencies at least D-1 in the case of
the DCR, and "Prime-1" (or its equivalent) in the case of Moody's, if the
deposits are to be held in the account for 30 days or less, or (B) long-term
unsecured debt obligations are rated by any two of the Rating Agencies at least
AA in the case of DCR and Aa2 in the case of Moody's, if the deposits are to be
held in the account more than 30 days (or if not then rated by DCR or Moody's,
at least AA by Standard & Poor's Ratings Service, a division of The McGraw-Hill
Companies, Inc.), or (ii) a segregated trust account or accounts maintained in
the trust department of the Trustee or other financial institution subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b), or (iii) an account or accounts of a
depository institution acceptable to each Rating Agency, as evidenced by Rating
Agency Confirmation with respect to the use of any such account as the
Collection Account or the Distribution Account, or (iv) accounts held at
NationsBank, N.A. or its successor by merger, Bank of America, N.A., provided
that the ratings by the Rating Agencies of the long-term unsecured debt
obligations thereof equal or exceed such ratings on the Closing Date.
"ELIGIBLE INVESTMENTS" means any one or more of the following obligations
or securities:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of
the United States of America; provided that any obligation of, or guarantee
by, FNMA or FHLMC, other than an unsecured senior debt obligation of FNMA
or FHLMC, shall be an Eligible Investment only if Rating Agency
Confirmation is obtained with respect to such investment;
(ii) demand, time or similar deposits in, certificates of deposit of,
money market deposit accounts of, or bankers' acceptances issued by, any
depository institution or trust company (including the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer or any Affiliate of the
Master Servicer, the Special Servicer, the Fiscal Agent or the Trustee,
acting in its commercial capacity) incorporated or organized under the laws
of the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities, so
long as the commercial paper or other short-term debt obligations of such
depository institution or trust company are rated "D-1+" by DCR and
"Prime-1" by Moody's or the long-term unsecured debt obligations of such
depository institution or trust company have been assigned a rating by each
Rating Agency at least equal "AAA" or its equivalent or, alternatively, so
long as the ratings on such obligations are otherwise acceptable to the
Rating Agencies;
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(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase
obligation will mature prior to the Business Day preceding the next date
upon which, as described in this Agreement, such amounts are required to be
withdrawn from the Collection Account and which meets the minimum rating
requirement for such entity described above;
(iv) securities (other than stripped bonds or stripped coupons)
bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AAA" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency;
provided that securities issued by any particular corporation will not be
Eligible Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation
and held in the Collection Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Collection
Account;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
rated "D-1+" by DCR and "Prime-1" by Moody's;
(vi) [Reserved];
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AAA" (or its equivalent
rating) by DCR and "Aaa" by Moody's (if rated by DCR or, if not rated by
DCR, by Moody's and another nationally recognized statistical rating
organization);
(viii) any money market funds that maintain a constant asset value and
that are rated "Aaa" (or its equivalent rating) by Moody's and "AAA" by DCR
(if rated by DCR or, if not rated by DCR, then a Rating Agency Confirmation
from DCR is required), and any other demand, money-market or time deposit,
or any other obligation, security or investment, with respect to which
Rating Agency Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of Treasury
Regulation Section 1.860G-2(g)(i) (as evidenced by an Opinion of Counsel
delivered to the Trustee by the Master Servicer at the Master Servicer's
expense), as are acceptable to the Rating Agencies (as evidenced by Rating
Agency Confirmation) and treated as "permitted investments" that are "cash
flow investments" under Code Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations
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underlying such instrument and the principal and interest payments with respect
to such instrument provide a yield to maturity of greater than 120% of the yield
to maturity at par of such underlying obligations, or (2) if it may be redeemed
at a price below the purchase price or (3) if it is not treated as a "permitted
investment" that is a "cash flow investment" under Code Section 860G(a)(5); and
provided, further, that any such instrument shall have a maturity date no later
than the date such instrument is required to be used to satisfy the obligations
under this Agreement, and, in any event, shall not have a maturity in excess of
one year; any such instrument must have a predetermined fixed dollar of
principal due at maturity that cannot vary or change; if rated, the obligation
must not have an "r" highlighter affixed to its rating; interest on any variable
rate instrument shall be tied to a single interest rate index plus a single
fixed spread (if any) and move proportionally with that index; and provided,
further, that no amount beneficially owned by any REMIC Pool (including any
amounts collected by the Master Servicer but not yet deposited in the Collection
Account) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, (x) units of investment funds
(including money market funds) shall be deemed to mature daily, and (y) the
"Minimum Maturity-Based Rating" means, in all cases, "AAA" or "Aaa", as
applicable.
"EMERGENCY ADVANCE" means any Servicing Advance that must be made within
five Business Days by the Special Servicer in order to avoid any material
penalty, any material harm to a Mortgaged Property or any other material adverse
consequence to the Trust.
"ENVIRONMENTAL ASSESSMENT" means a "Phase I Assessment" conducted in
accordance with ASTM Standard E 1527-93 or any successor thereto published by
ASTM.
"ENVIRONMENTAL LAWS" means any and all federal, state and local statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other governmental
restrictions, now or hereafter in effect, relating to the environment or to
emissions, discharges or releases of chemical substances, including, without
limitation, any and all pollutants, contaminants, petroleum or petroleum
products, asbestos or asbestos-containing materials, polychlorinated biphenyls,
urea-formaldehyde insulation, radon, industrial, toxic or hazardous substances
or wastes, into the environment, including, without limitation, ambient air,
surface water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, labeling, registration, treatment, storage,
disposal, transport or handling of any of the foregoing substances or wastes or
the clean-up or other remediation thereof.
"EQUIVALENT 30/360 RATE" means with respect to a Mortgage Loan on which
interest is computed on a basis other than a 360-day year consisting of twelve
30-day months, the per annum rate at which interest would have to accrue on the
Stated Principal Balance of such Mortgage Loan outstanding immediately prior to
such Distribution Date, assuming such accrual of interest were to occur on the
basis of a 360-day year consisting of twelve 30-day months, in order to produce
the actual Uncertificated Accrued Interest in respect of the REMIC I Regular
Interest corresponding to such Mortgage Loan in respect of such Distribution
Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW PAYMENT" means any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
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"EVENT OF DEFAULT" means one or more of the events described in Section
9.1(a).
"EXCESS INTEREST" means, with respect to any Hyper-Amortization Loan and
any Distribution Date following its Anticipated Repayment Date, the excess of
the amount of interest accrued on the outstanding principal balance of such
Mortgage Loan during the related Collection Period at the Mortgage Rate in
effect for such Mortgage Loan after the Anticipated Repayment Date (the "Revised
Interest Rate") over the amount of interest that would have accrued on the
outstanding principal balance of such Mortgage Loan during such Collection
Period at the Mortgage Rate in effect for such Mortgage Loan immediately prior
to its Anticipated Repayment Date, and interest on such excess amount at the
Revised Interest Rate from the date accrued to the date such amount is paid by
the related Mortgagor.
"EXCESS INTEREST DISTRIBUTION ACCOUNT" has the meaning set forth in Section
5.3.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense that was not otherwise subject to a Servicing Advance
or was the subject of a determination that such Servicing Advance, if made,
would be nonrecoverable.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any successor
thereto.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL PURCHASER" has the meaning set forth in Section 10.1.
"FINAL RECOVERY DETERMINATION" means a determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property that, in
the reasonable and good faith judgment of the Special Servicer, there has been a
recovery of all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
and other payments or recoveries that, in the Special Servicer's reasonable and
good faith judgment, exercised without regard to any obligation of the Master
Servicer or the Special Servicer to make payments from its own funds pursuant to
Section 8.5, will ultimately be recoverable.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking organization organized
under the laws of the Netherlands, its successor in interest, or any successor
Fiscal Agent appointed as herein provided.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in Section 7.16.
"FNMA" means the Federal National Mortgage Association, or any successor
thereto.
"GLOBAL CERTIFICATE" has the meaning set forth in Section 3.6.
"HAZARDOUS MATERIALS" means any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum
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and petroleum products, urea formaldehyde and any substances classified as being
"in inventory", "usable work in process" or similar classification that would,
if classified as unusable, be included in the foregoing definition.
"HISTORICAL LOAN MODIFICATION REPORT" means a report substantially
containing the content described in Exhibit H-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
prepared in accordance with Section 8.14(j).
"HISTORICAL LOSS ESTIMATE REPORT" means a report substantially containing
the content described in Exhibit H-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 current period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan basis prepared in
accordance with Section 8.14(j).
"HOLDER" means the Person in whose name a Certificate is registered on the
Certificate Register except that, solely for the purposes of giving any consent,
approval or waiver pursuant to this Agreement, any Certificate registered in the
name of the Master Servicer, the Special Servicer, the Depositor or any
Affiliate of any of them shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver has been obtained, except as otherwise provided in
Sections 8.32, 9.4 and 13.3. The Trustee shall be entitled to request and rely
upon a certificate of the Master Servicer, the Special Servicer or the Depositor
in determining whether a Certificate is registered in the name of an Affiliate
of such Person. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Clearing Agency and its Participants, except as otherwise
specified herein; provided, however, that the parties hereto shall be required
to recognize as a "Holder" or "Certificateholder" only the Person in whose name
a Certificate is registered in the Certificate Register.
"HYPER-AMORTIZATION LOAN" means any Mortgage Loan that provides for a
Balloon Payment on a stated date prior to its Stated Maturity Date, and provides
for an increased Mortgage Rate and/or rate of principal amortization following
such date if the Mortgage Loan remains outstanding.
"INDEPENDENT" means, when used with respect to any Accountants, a Person
who is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. Independent means, when used with respect
to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have any
material direct financial interest in such other Person or any Affiliate of such
other Person and (c) is not connected with such other Person or any Affiliate of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
"INDEPENDENT CONTRACTOR" means any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel,
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which shall be at no expense to the Trustee or the Trust, delivered to the
Trustee), so long as REMIC I does not receive or derive any income from such
Person and provided that the relationship between such Person and REMIC I is at
arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee of an Opinion of
Counsel, which shall be at no expense to the Trustee or the Trust, to the effect
that the taking of any action in respect of any REO Property by such Person,
subject to any conditions therein specified, that is herein contemplated to be
taken by an Independent Contractor will neither 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 Section
860D(a) of the Code) nor cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INDIRECT PARTICIPANTS" means entities, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly.
"INITIAL POOL BALANCE" means the aggregate Cut-off Date Principal Balance
of the Mortgage Pool.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the Securities Act.
"INSURANCE POLICY" means any hazard insurance policy, flood insurance
policy or title insurance policy relating to any Mortgage Loan or Mortgaged
Property or REO Property in effect as of the Closing Date or thereafter during
the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any Insurance
Policy.
"INTEREST ACCRUAL PERIOD" means with respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any Class of REMIC III Regular
Certificates for any Distribution Date, the calendar month immediately preceding
the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" has the meaning set forth in Section 5.3.2.
"INTEREST ONLY CERTIFICATES" means the Class X Certificates.
"INTERESTED PERSON" means, as of any date of determination, the Master
Servicer, the Special Servicer, the Depositor, the Operating Adviser, any
Certificateholder, any Certificate Owner or any Person known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"ISSUE PRICE" means, with respect to each Class of Regular Certificates,
REMIC I Regular Interests and REMIC II Regular Interests, the "issue price" as
defined in the REMIC Provisions.
"LATE COLLECTIONS" means with respect to any Mortgage Loan (including
without limitation any REO Mortgage Loan), all amounts received thereon during
any Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, Repurchase Proceeds, payments of Substitution
Shortfall Amounts, or otherwise, which represent late payments or collections of
the principal and/or interest due or deemed due in respect of such Mortgage Loan
(without regard to
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any acceleration of amounts due thereunder by reason of default) on a Due Date
in a previous Collection Period and not previously recovered; provided that
"Late Collections" shall in no event include Penalty Charges.
"LATE FEE" shall mean a fee paid or payable, as the context may require, by
a Mortgagor as provided in the related Mortgage Note or Mortgage in connection
with a late payment made on the related Mortgage Loan by such Mortgagor.
"LEGENDED DEFINITIVE CERTIFICATE" means a Definitive Certificate bearing
the Securities Legend.
"LIQUIDATION EVENT" means with respect to any Mortgage Loan (other than an
REO Mortgage Loan), any of the following events: (i) such Mortgage Loan is paid
in full; (ii) a Final Recovery Determination is made with respect to such
Mortgage Loan; (iii) such Mortgage Loan is repurchased or replaced by a Seller
pursuant to Section 7 of the related Mortgage Loan Purchase Agreement; (iv) such
Mortgage Loan is purchased by the Majority Certificateholder of the Controlling
Class, the Master Servicer or the Special Servicer, or is otherwise sold,
pursuant to Section 8.31 or otherwise liquidated by judicial action; or (v) such
Mortgage Loan is purchased by any Person entitled to effect an optional
termination of the Trust pursuant to Section 10.1. With respect to any REO
Property (and the related REO Mortgage Loan), any of the following events: (i) a
Final Recovery Determination is made with respect to such REO Property; (ii)
such REO Property is sold pursuant to Section 8.31; or (iii) such REO Property
is purchased by any Person entitled to effect an optional termination of the
Trust pursuant to Section 10.1.
"LIQUIDATION EXPENSES" means all customary, reasonable and necessary "out
of pocket" costs and expenses incurred on behalf of the Trust by the Special
Servicer in connection with the liquidation of any Specially Serviced Mortgage
Loan or REO Property pursuant to Section 8.7 or 8.31 (including, without
limitation, legal fees and expenses, title and escrow expenses, committee or
referee fees and, if applicable, brokerage commissions and conveyance taxes)
that were not covered by a Servicing Advance.
"LIQUIDATION FEE" means, with respect to each Specially Serviced Mortgage
Loan or REO Property as to which Liquidation Proceeds have been received (other
than any Specially Serviced Mortgage Loan or REO Property purchased by any
Person entitled to effect an optional termination of the Trust pursuant to
Section 10.1), a fee in an amount equal to the product of (x) 1.0%, and (y) the
related Liquidation Proceeds.
"LIQUIDATION PROCEEDS" means proceeds (other than payments by a Mortgagor,
Insurance Proceeds, Condemnation Proceeds, Repurchase Proceeds, payments of
Substitution Shortfall Amounts and REO Income) from the sale or liquidation of a
Mortgage Loan or related REO Property, net of related Liquidation Expenses.
"LOAN-TO-VALUE RATIO" means, with respect to any Mortgage Loan, as of any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the then-unpaid principal balance of such Mortgage Loan (or, if part of
a group of Cross-Collateralized Mortgage Loans, of such group), and the
denominator of which is the appraised value of the related Mortgaged Property
(or, in the case of a group of Cross-Collateralized Mortgage Loans, of all the
Mortgaged Properties securing such group) as determined by an Appraisal thereof.
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"LOCK-BOX ACCOUNT" means with respect to any Mortgage Loan, any lock-box,
cash management or similar account required under the terms of the related
Mortgage or Mortgage Note.
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any lock-box
agreement relating to such Mortgage Loan executed and delivered by the related
Mortgagor pursuant to which a Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.3.
"LOSS REIMBURSEMENT AMOUNT" means, with respect to any REMIC I Regular
Interest, REMIC II Regular Interest or Class of Principal Balance Certificates
for any Distribution Date (except the initial Distribution Date, with respect to
which the Loss Reimbursement Amount for such REMIC I Regular Interest, REMIC II
Regular Interest or Class of Certificates, as the case may be, will be zero), an
amount equal to (a)(i) the Loss Reimbursement Amount with respect to such REMIC
I Regular Interest, REMIC II Regular Interest or Class of Certificates, as the
case may be, for the immediately preceding Distribution Date, minus (ii) the
aggregate of all reimbursements of previously allocated and unreimbursed
Realized Losses and Expense Losses (with interest) made on the immediately
preceding Distribution Date pursuant to Section 6.2, 6.3 or 6.4, as applicable,
with respect to such REMIC I Regular Interest, REMIC II Regular Interest or
Class of Certificates, as the case may be, plus (iii) the aggregate of all
Realized Losses and Expense Losses allocated to such REMIC I Regular Interest,
REMIC II Regular Interest or Class of Certificates, as the case may be, on the
immediately preceding Distribution Date pursuant to Section 6.5, plus (b) one
month's interest (calculated on the basis of a 360-day year consisting of twelve
30-day months) on the amount described in clause (a) at the REMIC I Remittance
Rate, REMIC II Remittance Rate or Pass-Through Rate, as applicable, in respect
of such REMIC I Regular Interest, REMIC II Regular Interest or Class of
Certificates, as the case may be, for the current Distribution Date.
"MAI" means member of the appraisal institute.
"MAJORITY CERTIFICATEHOLDER" means, with respect to any particular Class or
Classes of Certificates, any Certificateholder entitled to a majority of the
Voting Rights allocated to such Class or Classes, as the case may be.
"MASTER SERVICER" means AMRESCO Services, L.P. or any successor master
servicer appointed as provided herein.
"MASTER SERVICER REMITTANCE DATE" means, with respect to each Distribution
Date, the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the Master
Servicer and in such media as may be agreed upon by the Master Servicer and the
Trustee containing such information regarding the Mortgage Loans as will permit
the Trustee to calculate the amounts to be distributed to the Certificateholders
pursuant to this Agreement and to furnish the Monthly Certificateholder Report
to Certificateholders required to be delivered hereunder and containing such
additional information as the Master Servicer, the Trustee and the Depositor may
from time to time mutually agree.
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"MASTER SERVICING FEE" means, with respect to each Mortgage
Loan (including without limitation each REO Mortgage Loan), the fee designated
as such and payable to the Master Servicer pursuant to Section 8.10(a).
"MASTER SERVICING FEE RATE" means, with respect to each
Mortgage Loan (including without limitation each REO Mortgage Loan), the rate
per annum indicated on the Mortgage Loan Schedule.
"MATERIAL DEFECT" has the meaning set forth in Section 2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan as of
any date of determination, the date on which the last payment of principal is
due and payable under the related Mortgage Note, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan occurring prior to such
date of determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan by reason of a default or (ii) any grace period
permitted by the related Mortgage Note.
"MEMORANDUM" means the private placement memorandum dated
February 24, 1999, relating to the Privately Offered Certificates.
"MINIMUM MATURITY-BASED RATING" has the meaning provided under
the definition of "Eligible Investments" herein.
"MONEY TERM" means with respect to any Mortgage Loan, the
Maturity Date, Mortgage Rate, principal balance, amortization term or payment
frequency thereof (and shall not include Late Fees or Default Interest
provisions).
"MONTHLY CERTIFICATEHOLDER REPORT" means a report prepared
pursuant to Section 5.4 by the Trustee as to each Distribution Date generally in
the form and substance of Exhibit G-1, which sets forth, to the extent
applicable; (i) the amount, if any, of the distributions on such Distribution
Date to the Holders of each Class of Principal Balance Certificates applied to
(A) reduce the respective Class Principal Balance thereof and (B) reimburse
previously allocated Realized Losses and/or Expense Losses (with interest); (ii)
the amount, if any, of the distributions to Holders of each Class of REMIC III
Regular Certificates allocable to (A) Distributable Certificate Interest and (B)
Prepayment Premiums; (iii) the number and aggregate Stated Principal Balance of
Mortgage Loans in the Mortgage Pool at the close of business on the related
Determination Date; (iv) the number and aggregate Stated Principal Balance of
Mortgage Loans in the Mortgage Pool that are at the close of business on the
related Determination Date (A) delinquent one month, (B) delinquent two months,
(C) delinquent three or more months or (D) as to which foreclosure proceedings
have been commenced; (v) with respect to any REO Property acquired during the
related Collection Period, the Stated Principal Balance of the related Mortgage
Loan as of the date of acquisition of the REO Property; (vi)(A) the latest
appraised value of any REO Property included in the Trust Fund as of the related
Determination Date, (B) as to any REO Property sold during the related
Collection Period, the date of the related Final Recovery Determination and the
amount of the proceeds of such sale deposited into the Collection Account, and
(C) the aggregate amount of other revenues collected by the Special Servicer
with respect to each REO Property during the related Collection Period and
credited to the Collection Account, in each case identifying such REO Property
by the loan number of the related Mortgage Loan; (vii) the Class Principal
Balance or Class X Notional Amount, as the case may be, and Certificate Factor
of each Class of REMIC III Regular Certificates before and after giving effect
to the distributions made on such Distribution Date; (viii) the aggregate
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amount of Principal Prepayments made during the related Collection Period; (ix)
the Pass-Through Rate applicable to each Class of REMIC III Regular Certificates
for such Distribution Date; (x) the aggregate amount of servicing fees retained
by or paid to the Master Servicer and the Special Servicer; (xi) the Net
Aggregate Prepayment Interest Shortfall, if any, for such Distribution Date and
the amount of Realized Losses or Expense Losses, if any, incurred with respect
to the Mortgage Loans during the related Collection Period; (xii) the aggregate
amount of Servicing Advances and P&I Advances outstanding as of the end of the
prior calendar month that have been made by the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, separately stated; and (xiii) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions as of such
Distribution Date. In the case of information furnished pursuant to subclauses
(i) and (ii) above, the amounts shall be expressed as a dollar amount per $1,000
of original actual or notional principal amount of the Certificates for all
Certificates of each applicable Class.
"MONTHLY PAYMENT" means, with respect to any Mortgage Loan,
the scheduled monthly payment of principal and/or interest on such Mortgage
Loan, including any Balloon Payment, which is payable by a Mortgagor from time
to time under the terms of the related Mortgage Note (as such may be modified at
any time following the Closing Date) and applicable law.
"MORTGAGE" means, with respect to any Mortgage Loan,
separately and collectively, as the context may require, each mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
related Mortgaged Property.
"MORTGAGE FILE" means, collectively with respect to any
Mortgage Loan, the mortgage documents listed below:
(i) the original Mortgage Note, endorsed by the most
recent endorsee prior to the Trustee or, if none, by
the originator, without recourse, either in blank or
to the order of the Trustee in the following form:
"Pay to the order of LaSalle National Bank, as
trustee for the registered holders of Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1, without recourse";
(ii) the original or a copy of the related recorded
Mortgage and, if applicable, the originals or copies
of any intervening assignments of such Mortgage
showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if
any, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the related Mortgage, in
recordable form, executed by the most recent assignee
of record thereof prior to the Trustee or, if none,
by the originator, either in blank or in favor of the
Trustee (in such capacity);
(iv) the original or a copy of the related recorded
Assignment of Leases (if such item is a document
separate from the related Mortgage) and, if
applicable, the originals or copies of any
intervening assignments of such Assignment of Leases
showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if
any, in each case with evidence of recording thereon;
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(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the
related Mortgage), in recordable form, executed by
the most recent assignee of record thereof prior to
the Trustee or, if none, by the originator, either in
blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the
corresponding assignment of Mortgage referred to in
clause (iii) above;
(vi) an original or copy of any related security agreement
(if such item is a document separate from the related
Mortgage) and, if applicable, the originals or copies
of any intervening assignments of such security
agreement showing a complete chain of assignment from
the originator of the Mortgage Loan to the most
recent assignee thereof prior to the Trustee, if any;
(vii) an original assignment of any related security
agreement (if such item is a document separate from
the related Mortgage) executed by the most recent
assignee thereof prior to the Trustee or, if none, by
the originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may be
included as part of an omnibus assignment covering
other documents relating to the Mortgage Loan
provided that such an omnibus assignment would be
effective under applicable law;
(viii) originals or copies of all assumption, modification,
consolidation, written assurance and substitution
agreements, with evidence of recording thereon (if
appropriate), in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any
related security document have been modified or the
Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title
insurance policy issued in connection with the
origination of the Mortgage Loan, together with all
endorsements or riders (or copies thereof) that were
issued with or subsequent to the issuance of such
policy, insuring the priority of the Mortgage as a
first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the
obligations of the Mortgagor under the Mortgage Loan,
together with (A) if applicable, the originals or
copies of any intervening assignments of such
guaranty showing a complete chain of assignment from
the originator of the Mortgage Loan to the most
recent assignee thereof prior to the Trustee, if any,
and (B) an original assignment of such guaranty
executed by the most recent assignee thereof prior to
the Trustee or, if none, by the originator (which
assignment may be included as part of an omnibus
assignment covering other documents relating to the
Mortgage Loan provided that such an omnibus
assignment would be effective under applicable law);
(xi) (A) a recorded acknowledgment copy of any UCC
Financing Statements and continuation statements
which were filed in order to perfect (and maintain
the perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee of
record prior to the Trustee) in and to the personalty
of the Mortgagor at the Mortgaged Property (in each
case with evidence of filing thereon) and which were
in the possession of the related Seller (or its
agent) at
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the time the subject Mortgage File was delivered to
the Trustee and (B) if any such security interest
remains perfected and the earlier UCC Financing
Statements and continuation statements were in the
possession of the Seller, a UCC Financing Statement
executed by the most recent assignee of record prior
to the Trustee or, if none, by the originator,
evidencing the transfer of such security interest,
either in blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate)
granted by the Mortgagor if the Mortgage, Mortgage
Note or other document or instrument referred to
above was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground lease
or a copy thereof;
(xiv) the original or a copy of the loan agreement, if
applicable; and
(xv) the original or a copy of the lockbox agreement, if
applicable;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee, such term shall not be deemed to include such
documents and instruments required to be included therein unless they are
actually so received.
"MORTGAGE LOAN" means a mortgage loan identified on the
Mortgage Loan Schedule, as amended from time to time, and conveyed, transferred,
sold, assigned to and deposited with the Trustee pursuant to Section 2.1 or
Section 2.3. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File.
"MORTGAGE LOAN PURCHASE AGREEMENT" means either of Mortgage
Loan Purchase Agreement I, Mortgage Loan Purchase Agreement II or Mortgage Loan
Purchase Agreement III, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain
Mortgage Loan Purchase Agreement dated as of February 24, 1999, between MSMC and
the Depositor, with respect to the MSMC Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain
Mortgage Loan Purchase Agreement dated as of February 24, 1999, between RFC and
the Depositor, with respect to the RFC Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain
Mortgage Loan Purchase Agreement dated as of February 24, 1999, between Wachovia
and the Depositor, with respect to the Wachovia Loans.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means,
collectively, the schedules attached hereto as Schedule I, which identifies each
MSMC Loan, Schedule II, which identifies each RFC Loan and Schedule III, which
identifies each Wachovia Loan, as such schedules may be amended from time to
time pursuant to Section 2.3.
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"MORTGAGE NOTE" means the note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with any rider, addendum or amendment thereto.
"MORTGAGE POOL" means, collectively, all of the Mortgage Loans
(including without limitation REO Mortgage Loans and Replacement Mortgage Loans,
but excluding Deleted Mortgage Loans).
"MORTGAGE RATE" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), the fixed annualized rate
at which interest is scheduled (in the absence of default) to accrue on such
Mortgage Loan from time to time (in accordance with the terms of the related
Mortgage Note (as such may be modified at any time following the Closing Date)
and applicable law), and without regard to any passage of the Maturity Date or
any acquisition of the related Mortgaged Property as an REO Property, provided
that in the case of a Non-30/360 Mortgage Loan, the Mortgage Rate shall be
determined in accordance with this sentence assuming that interest is scheduled
(in the absence of default) to accrue on such Mortgage Loan at the Equivalent
30/360 Rate, and provided further that with respect to each Mortgage Loan that
accrues interest on the basis of a 360-day year and the actual number of days in
each month, (i) the Mortgage Rate for the one-month period preceding the Due
Dates in both January and February in any year that is not a leap year and in
February in any year that is a leap year, shall be determined net of any
Withheld Amounts and (ii) the Mortgage Rate for the one-month period preceding
the Due Date in March shall be determined taking into account the addition of
the Withheld Amounts.
"MORTGAGED PROPERTY" means, individually and collectively, as
the context may require, the real property interest or interests subject to the
lien of a Mortgage and constituting collateral for a Mortgage Loan. With respect
to any Cross-Collateralized Mortgage Loan, as the context may require,
"Mortgaged Property" may mean, collectively, all the Mortgaged Properties
securing such Cross-Collateralized Mortgage Loan.
"MORTGAGEE" means, which respect to any Mortgage as of any
date of determination, the holder of the related Mortgage Note as of such date.
"MORTGAGOR" means the obligor or obligors on a Mortgage Note.
"MSMC" means Morgan Stanley Mortgage Capital Inc., or any
successor in interest.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means, with
respect to any Distribution Date, the amount, if any, by which (a) the aggregate
of all Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the sum of (i) the aggregate of all Prepayment Interest
Excesses realized in connection with the receipt of Principal Prepayments on the
Mortgage Loans during the related Collection Period, and (ii) the aggregate
amount deposited by the Master Servicer in the Distribution Account for such
Distribution Date pursuant to Section 8.21(b) in connection with such Prepayment
Interest Shortfalls.
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"NET MORTGAGE RATE" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), as of any date of
determination, a rate per annum equal to the related Mortgage Rate then in
effect, minus the applicable Master Servicing Fee Rate and Trustee Fee Rate.
"NEW LEASE" means any lease of any REO Property entered into
on behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"NEW YORK PRESENTING OFFICE" means any office of an agent of
the Trustee or the Certificate Registrar, located in New York, New York, as the
Trustee or the Certificate Registrar, as the case may be, may designate from
time to time by written notice to the Depositor and the Certificateholders.
"NOI ADJUSTMENT WORKSHEET" means a report prepared by the
Master Servicer or the Special Servicer, as the case may be, substantially
containing the content described in Exhibit H-8 attached hereto, presenting the
computations made in accordance with the methodology described in such Exhibit
H-8 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 8.14(d).
"NON-30/360 MORTGAGE LOAN " means a Mortgage Loan that accrues
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"NONDISQUALIFICATION OPINION" means a written opinion of
Independent nationally recognized outside tax counsel addressed to the Trustee,
reasonably acceptable in form and substance to the Trustee, that a contemplated
action will neither cause (i) any REMIC Pool to fail to qualify as a REMIC at
any time that any Certificates are outstanding nor (ii) a gain on the
disposition of a Qualified Mortgage which would be subject to the 100% tax on
"prohibited transactions," imposed by Section 860F of the Code, nor (iii) any
REMIC Pool to be subject to any tax under the REMIC Provisions, except for any
tax on net income from foreclosure property as provided for herein.
"NONRECOVERABLE ADVANCE" means any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"NONRECOVERABLE P&I ADVANCE" means any P&I Advance previously
made or proposed to be made in respect of a Mortgage Loan (including, without
limitation, an REO Mortgage Loan) which, in the reasonable and good faith
judgment of the Master Servicer, or, if applicable, the Trustee or Fiscal Agent,
will not be ultimately recoverable (together with Advance Interest thereon) from
late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan.
"NONRECOVERABLE SERVICING ADVANCE" means any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property which, in the reasonable and good faith judgment of the Master
Servicer, the Special Servicer or, if applicable, the Trustee or the Fiscal
Agent, will not be ultimately recoverable (together with Advance Interest
thereon) from late payments, Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, or any other recovery on or in respect of such Mortgage
Loan or REO Property.
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"OFFICER'S CERTIFICATE" means (x) in the case of the
Depositor, a certificate signed by one or more of the Chairman of the Board, any
Vice Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (y) in
the case of the Master Servicer and the Special Servicer, a certificate signed
by any of the officers referred to above or an employee thereof designated as a
Servicing Officer or Special Servicing Officer pursuant to this Agreement, and
(z) in the case of the Trustee, a certificate signed by a Responsible Officer.
"OPERATING ADVISER" shall have the meaning specified in
Section 8.32.
"OPERATING STATEMENT ANALYSIS" means, with respect to each
Mortgage Loan and REO Mortgage Property, a report substantially containing the
content described in Exhibit H-7 attached hereto, prepared in accordance with
Section 8.14(j).
"OPINION OF COUNSEL" means a written opinion of counsel
addressed to the Trustee, reasonably acceptable in form and substance to the
Trustee, and which may be from in-house or outside counsel to the party required
to deliver such opinion but which must be from Independent outside counsel with
respect to any such opinion of counsel concerning the taxation, or status as a
REMIC for tax purposes, of the Trust or any REMIC Pool.
"OTS" means the Office of Thrift Supervision or any successor
thereto.
"OWNERSHIP INTEREST" means, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I ADVANCE" means, as to any Mortgage Loan (including,
without limitation, any REO Mortgage Loan), any advance in respect of delinquent
principal and/or interest made by the Master Servicer pursuant to Section 4.1
(or any similar advance made by the Trustee or the Fiscal Agent pursuant to
Section 4.3).
"P&I ADVANCE DATE" means, with respect to any Distribution
Date, the Business Day preceding such Distribution Date.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH ENTITY" means any of (a) a regulated investment
company described in Section 851 of the Code, a real estate investment trust
described in Section 856 of the Code, a common trust fund or an organization
described in Section 1381(a) of the Code, (b) any partnership, trust or estate
as such terms are defined in the Code or (c) any Person holding a Residual
Certificate as nominee for another Person.
"PASS-THROUGH RATE" means with respect to,
(1) the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates, the Class C
Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates, the Class K
Certificates,
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the Class L Certificates, the Class M Certificates,
Class N Certificates and the Class O Certificates,
for any Distribution Date, the respective fixed rates
per annum specified as such in the Preliminary
Statement;
(2) the Class X Certificates, for any Distribution Date,
the Class X Certificate Rate;
(3) the Class D Certificates, for any Distribution Date,
the Class D Certificate Rate;
(4) the Class E Certificates, for any Distribution Date,
the Class E Certificate Rate; and
(5) the Class F Certificates, for any Distribution Date,
the Class F Certificate Rate.
"PCB" has the meaning set forth in the definition of Hazardous
Materials.
"PENALTY CHARGES" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), any amounts collected
thereon that represent Late Fees or Default Interest.
"PERCENTAGE INTEREST" means, (i) with respect to any REMIC III
Regular Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or the Certificate Notional Amount, as the case
may be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the initial Class Principal Balance or
the initial Class X Notional Amount, as the case may be, of the relevant Class
as of the Closing Date; and (ii) with respect to a Residual Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"PLAN" has the meaning set forth in Section 3.3(d).
"PREPAYMENT ASSUMPTION" means a CPR of 0%, applied to each
Mortgage Loan during any period that the related Mortgagor is permitted to make
voluntary Principal Prepayments without a Prepayment Premium (and with respect
to each Hyper-Amortization Loan, treating its Anticipated Repayment Date as its
Maturity Date), calculated on the basis of a yield maintenance formula used for
determining the accrual of original issue discount, market discount and premium,
if any, on the REMIC I Regular Interests, the REMIC II Regular Interests or the
REMIC III Regular Certificates for federal income tax purposes.
"PREPAYMENT INTEREST EXCESS" means, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part
during any Collection Period, which Principal
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Prepayment was applied to such Mortgage Loan following such Mortgage Loan's Due
Date in such Collection Period, the amount of interest at the related Net
Mortgage Rate (except to the extent it constitutes Excess Interest) accrued on
the amount of such Principal Prepayment during the period from and after such
Due Date to but not including the date such Principal Prepayment was applied to
such Mortgage Loan, to the extent actually collected from the related Mortgagor
(without regard to any Prepayment Premium that may have been collected).
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or part during
any Collection Period, which Principal Prepayment was applied to such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection Period, the
amount of interest that would have accrued at the related Net Mortgage Rate
(except to the extent it constitutes Excess Interest) on the amount of such
Principal Prepayment during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and ending on the day
immediately preceding such Due Date, inclusive, to the extent not collected from
the related Mortgagor (without regard to any Prepayment Premium that may have
been collected).
"PREPAYMENT PREMIUM" means any premium, penalty or fee paid or
payable, as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Mortgage Loan
(including, without limitation, an REO Mortgage Loan).
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the
REMIC III Regular Certificates other than the Class X Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, for any Distribution
Date, the aggregate of (i) the Current Principal Distribution Amount for such
Distribution Date, and (ii) if such Distribution Date is subsequent to the
initial Distribution Date, the excess, if any, of the Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the Principal Balance Certificates in respect of such
Principal Distribution Amount on the preceding Distribution Date.
"PRINCIPAL PREPAYMENT" means any payment of principal made by
the Mortgagor on a Mortgage Loan that is received in advance of its scheduled
Due Date and that is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"PRIVATELY OFFERED CERTIFICATES" means, unless and until
registered under the Securities Act, the Class X, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Residual Certificates.
"PROPOSED PLAN" has the meaning set forth in Section 8.20.
"PROSPECTIVE INVESTOR" means any prospective purchaser of a
Certificate or, in the case of a Book-Entry Certificate, of a beneficial
ownership interest therein.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated
February 24, 1999 relating to the Publicly Offered Certificates.
"PUBLICLY OFFERED CERTIFICATES" means the Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class F Certificates.
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"PURCHASE PRICE" means, with respect to any Mortgage Loan
(other than an REO Mortgage Loan), a price equal to the outstanding principal
balance of such Mortgage Loan as of the date of purchase, together with (a) all
accrued and unpaid interest on such Mortgage Loan at the related Mortgage Rate
to but not including the Due Date in the Collection Period of purchase, (b) all
related unreimbursed Servicing Advances, together with interest on all Advances
hereunder accrued to the date of purchase on Advances and (c) if such Mortgage
Loan is being repurchased by a Seller pursuant to Section 7 of the related
Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be
incurred by the Master Servicer, the Special Servicer, the Depositor and the
Trustee in respect of the Breach or Material Defect giving rise to the
repurchase obligation. With respect to any REO Property, Purchase Price means
the amount calculated in accordance with the preceding sentence in respect of
the related REO Mortgage Loan.
"QIB" means a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act.
"QUALIFIED APPRAISER" means an Independent licensed
MAI-designated appraiser with at least five years experience in properties of
like kind and in the same area.
"QUALIFIED INSURER" means an insurance company or security or
bonding company duly qualified as such under the laws of the relevant
jurisdiction and duly authorized and licensed in such jurisdiction to transact
the applicable insurance business and to write the insurance provided.
"QUALIFIED MORTGAGE" means a Mortgage Loan that is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulation Section 1.860G-2(f)(2) that
treats a defective obligation as a qualified mortgage, or any substantially
similar successor provision) and applicable Treasury regulations promulgated
pursuant thereto.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means a Mortgage Loan
substituted for a Deleted Mortgage Loan which, on the date of substitution, (i)
has a principal balance, after deduction of the principal portion of the Monthly
Payment due in the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a rate of
interest at least equal to that of the Deleted Mortgage Loan; (iii) has a fixed
Mortgage Rate; (iv) is accruing interest on the same basis as the Deleted
Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve
30-day months); (v) has a remaining term to stated maturity not greater than,
and not more than two years less than, that of the Deleted Mortgage Loan; (vi)
has an original Loan-to-Value Ratio not higher than that of the Deleted Mortgage
Loan and a current Loan-to-Value Ratio (equal to the principal balance on the
date of substitution divided by its current Appraised Value) not higher than the
then-current Loan-to-Value Ratio of the Deleted Mortgage Loan; (vii) will comply
with all of the representations and warranties relating to Mortgage Loans set
forth in the related Mortgage Loan Purchase Agreement, as of the date of
substitution; (viii) has an Environmental Assessment relating to the related
Mortgaged Property in its Servicing File; and (ix) as to which the Trustee has
received a written opinion of Independent outside tax counsel, reasonably
acceptable in form and substance to the Trustee, at the related Seller's
expense, that such Mortgage Loan is a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided that no such Mortgage
Loan shall be substituted for a Deleted Mortgage Loan if it has a Maturity Date
after the date three years prior to the Rated Final Distribution Date, and
provided, further, that no such Mortgage Loan shall be substituted for a Deleted
Mortgage Loan unless Rating Agency Confirmation is obtained; and provided,
further that no such Mortgage Loan shall be substituted for a Deleted Mortgage
Loan if it would result in an Adverse REMIC Event in respect of any REMIC Pool;
and provided, further that no such Mortgage Loan shall be
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substituted for a Deleted Mortgage Loan unless the Operating Adviser shall have
approved of such substitution based upon an engineering report and the
Environmental Assessment obtained with respect to such Mortgage Loan (provided,
however, that such approval of the Operating Adviser may not be unreasonably
withheld, as determined by the Special Servicer in accordance with the Servicing
Standard). In the event that either one mortgage loan is substituted for more
than one Deleted Mortgage Loan or more than one mortgage loan is substituted for
one or more Deleted Mortgage Loans, then (a) the principal balance referred to
in clause (i) above shall be determined on the basis of aggregate principal
balances and (b) the rates referred to in clauses (ii) and (iii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. Whenever a Qualifying Substitute
Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this
Agreement, the party effecting such substitution shall certify that such
Mortgage Loan meets all of the requirements of this definition and shall send
such certification to the Trustee.
"Rated Final Distribution Date" means December 15, 2031.
"RATING AGENCIES" means DCR and Moody's.
"RATING AGENCY CONFIRMATION" means, with respect to any
matter, where required under this Agreement, confirmation in writing by each
Rating Agency that a proposed action, failure to act, or other event specified
herein will not in and of itself result in the withdrawal, downgrade, or
qualification (if applicable) of the then-current rating assigned by such Rating
Agency to any Class of Certificates then rated by such Rating Agency.
"REALIZED LOSS" means (x) with respect to each defaulted
Mortgage Loan as to which a Final Recovery Determination has been made, or with
respect to any REO Mortgage Loan as to which a Final Recovery Determination has
been made as to the related REO Property, an amount (not less than zero) equal
to (i) the unpaid principal balance of such Mortgage Loan (or, in the case of an
REO Property, the related REO Mortgage Loan) as of the commencement of the
Collection Period in which the Final Recovery Determination was made, plus (ii)
all accrued but unpaid interest (other than Excess Interest) on such Mortgage
Loan (or, in the case of an REO Property, the related REO Mortgage Loan) at the
related Mortgage Rate to but not including the Due Date in the Collection Period
in which the Final Recovery Determination was made, in any event determined
without taking into account the amounts described in subclause (iv) of this
sentence, plus (iii) any related unreimbursed Servicing Advances as of the
commencement of the Collection Period in which the Final Recovery Determination
was made, together with any new related Servicing Advances made during such
Collection Period and all unpaid Advance Interest on all Advances, minus (iv)
all payments and proceeds, if any, received in respect of such Mortgage Loan or
REO Property, as the case may be, during the Collection Period in which such
Final Recovery Determination was made (net of any related Liquidation Expenses
paid therefrom); (y) with respect to any Mortgage Loan as to which any portion
of the outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
8.18, the amount of such principal or interest so forgiven; and (z) with respect
to any Mortgage Loan as to which the Mortgage Rate thereon has been permanently
reduced for any period in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 8.18, the amount of the consequent reduction in the interest
portion of each successive Monthly Payment due thereon. Each such Realized Loss
shall be deemed to have been incurred on the Due Date for each affected Monthly
Payment.
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"RECORD DATE" means, with respect to any Class of Certificates
for any Distribution Date, the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs.
"REGULATION D" has the meaning set forth in Section 3.3(g).
"REMIC" means a real estate mortgage investment conduit within
the meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets included in the
Trust created hereby and to be administered hereunder, consisting of the
Mortgage Loans (excluding the right to Excess Interest in respect of the
Hyper-Amortization Loans), as from time-to-time are subject to this Agreement,
the Mortgage Files relating thereto, all proceeds of and payments under such
Mortgage Loans received after the Closing Date (other than Excess Interest),
such amounts as shall from time to time be held in the Collection Account and
the Distribution Account, the Insurance Policies and any REO Properties acquired
in respect of any Mortgage Loan, for which a REMIC election is to be made
pursuant to Section 12.1(a) hereof.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I REGULAR INTEREST" means, with respect to each
Mortgage Loan (including, without limitation, each REO Mortgage Loan), the
separate uncertificated interest in REMIC I issued to the Trustee in respect of
such Mortgage Loan hereunder and designated as a "regular interest" in REMIC I.
Each REMIC I Regular Interest shall be held by the Trustee as part of the assets
of REMIC II, and shall represent a right to receive interest at the related
REMIC I Remittance Rate and distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance (which shall equal the Cut-off Date Principal Balance of the
related Mortgage Loan). The designation for each REMIC I Regular Interest shall
be the loan number for the related Mortgage Loan set forth in the Mortgage Loan
Schedule as of the Closing Date. If a Replacement Mortgage Loan or Loans are
substituted for any Deleted Mortgage Loan, the REMIC I Regular Interest that
related to the Deleted Mortgage Loan shall thereafter relate to such Replacement
Mortgage Loan(s).
"REMIC I REMITTANCE RATE" means, with respect to any REMIC I
Regular Interest for any Distribution Date, a rate per annum equal to the Net
Mortgage Rate in effect for the related Mortgage Loan (including without
limitation an REO Mortgage Loan). If any Mortgage Loan included in the Trust
Fund as of the Closing Date is replaced by a Replacement Mortgage Loan or Loans,
the REMIC I Remittance Rate for the related REMIC I Regular Interest shall still
be calculated in accordance with the preceding sentence based on the Net
Mortgage Rate for the Deleted Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of
the REMIC I Regular Interests and all distributions thereon conveyed to the
Trustee for the benefit of REMIC III and for which a separate REMIC election is
to be made pursuant to Section 12.1(a) hereof.
"REMIC II DISTRIBUTION AMOUNT" has the meaning set forth in
Section 6.2(d).
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
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"REMIC II REGULAR INTEREST" means any of the fifteen separate
uncertificated beneficial interests in REMIC II issued to the Trustee hereunder
and designated as a "regular interest" in REMIC II. Each REMIC II Regular
Interest shall be held by the Trustee as part of the assets of REMIC III, and
shall represent a right to receive interest at the related REMIC II Remittance
Rate in effect from time to time and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto. The designations for the respective REMIC II
Regular Interests are set forth in the Preliminary Statement hereto.
"REMIC II REMITTANCE RATE" means, with respect to each of
REMIC II Regular Interests A, B, C, D, E, F, G, H, J, K, L, M, N and O for any
Distribution Date, the Weighted Average REMIC I Remittance Rate.
"REMIC III" means the segregated pool of assets consisting of
the REMIC II Regular Interests and for which a separate REMIC election is to be
made pursuant to Section 12.1(a) hereof.
"REMIC III CERTIFICATE" means any Certificate, other than a
Class R-I or Class R-II Certificate.
"REMIC III DISTRIBUTION AMOUNT" has the meaning set forth in
Section 6.3(c).
"REMIC III REGULAR CERTIFICATE" means any REMIC III
Certificate, other than a Class R-III Certificate, and where appropriate with
respect to a Class X Certificate, may refer to each of the Component Interests
thereof, as the case requires. References to REMIC III Regular Certificates
will, with respect to the Class O Certificate, be considered to refer to the
Class O REMIC Interest that is a "regular interest" in REMIC III, where
appropriate.
"REMIC POOL" means each of the three segregated pools of
assets designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income
tax law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time and taking account, as appropriate, of any
proposed legislation which, as proposed, would have an effective date prior to
enactment thereof and any proposed regulations.
"RENTS FROM REAL PROPERTY" means, with respect to any REO
Property, income of the character described in Section 856(d) of the Code.
"REO ACQUISITION" means the acquisition of any REO Property
pursuant to Section 8.7.
"REO EXTENSION" has the meaning set forth in Section 8.19(a).
"REO INCOME" means, with respect to any REO Property for any
Collection Period, all income received in connection with such REO Property
during such period.
"REO MORTGAGE LOAN" means a Mortgage Loan as to which the
related Mortgaged Property is an REO Property.
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"REO PROPERTY" means a Mortgaged Property acquired by the
Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or
reclamation from bankruptcy in connection with a Defaulted Mortgage Loan or
otherwise treated as foreclosure property under the REMIC Provisions.
"REO SALE DEADLINE" has the meaning set forth in Section
8.19(a).
"REO STATUS REPORT" means a report substantially containing
the content described in Exhibit H-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) prepared in accordance with Section 8.14(j).
"REO TAX" has the meaning set forth in Section 8.20(a).
"REPLACEMENT MORTGAGE LOAN" means any Qualifying Substitute
Mortgage Loan that is substituted for one or more Deleted Mortgage Loans.
"REPORT DATE" means the second Business Day before the related
Distribution Date.
"REPURCHASE PROCEEDS" means amounts paid by any Seller under
the related Mortgage Loan Purchase Agreement, in connection with the repurchase
of any Mortgage Loan as contemplated by Section 2.3.
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan (including
without limitation any REO Mortgage Loan) as to which an Appraisal Event has
occurred and is continuing.
"RESERVE ACCOUNT" means the account or accounts created and
maintained pursuant to Section 8.3(d).
"RESERVE FUNDS" means, with respect to any Mortgage Loan, any
cash amounts or instruments convertible into cash delivered by the related
Mortgagor to be held in escrow by or on behalf of the Mortgagee representing
reserves for repairs, replacements, capital improvements, environmental testing
and remediation and/or similar type items with respect to the related Mortgaged
Property.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the
Class R-I Certificates, with respect to REMIC II, the Class R-II Certificates
and, with respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the
initial Trustee, any officer assigned to the Asset-Backed Securities Trust
Services Group of its Corporate Trust Department, and when used with respect to
any successor Trustee, any Vice President, Assistant Vice President, corporate
trust officer or any assistant corporate trust officer.
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"REVISED INTEREST RATE" has the meaning set forth in the
definition of Excess Interest.
"RFC" means Residential Funding Corporation or its successor
in interest.
"RFC LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES LEGEND" means the legend to be printed on the
Certificates as set forth in Section 3.3(c).
"SELLER" means MSMC, RFC or Wachovia, as the case may be.
"SENIOR CERTIFICATES" means, collectively, the Class A and
Class X Certificates.
"SERVICING ACCOUNT" means the account or accounts created and
maintained pursuant to Section 8.3(a).
"SERVICING ADVANCES" means all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and
expenses and fees of real estate brokers) incurred by the Master Servicer, the
Special Servicer or, if applicable, the Trustee or the Fiscal Agent in
connection with the servicing and administering of (a) a Mortgage Loan in
respect of which a default, delinquency or other unanticipated event has
occurred or as to which a default is imminent or (b) an REO Property, including,
but not limited to, the cost of (i) compliance with the obligations of the
Master Servicer and/or the Special Servicer set forth in Section 8.3(c) and
8.7(c), (ii) the preservation, restoration and protection of a Mortgaged
Property or REO Property, (iii) obtaining any Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds in respect of any Mortgage Loan or REO
Property, (iv) any enforcement or proceedings with respect to a Mortgaged
Property, including without limitation foreclosures and similar proceedings, (v)
the operation, management, maintenance and liquidation of any REO Property, and
(vi) any other cost or expense designated as a Servicing Advance in accordance
with this Agreement; provided that, notwithstanding anything to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master Servicer
or the Special Servicer, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Special
Servicer hereunder shall be considered "Servicing Advances" for the purposes
hereof.
"SERVICING FEES" means, with respect to each Mortgage Loan
(including without limitation each REO Mortgage Loan), the Master Servicing Fee
and, if applicable, the Special Servicing Fee.
"SERVICING FILE" means, collectively as to any Mortgage Loan,
any documents, other than documents required to be part of the related Mortgage
File, in the possession of the Master Servicer or Special Servicer and relating
to the origination and servicing of such Mortgage Loan, including without
limitation a closing binder for such Mortgage Loan and, in each case if and to
the extent
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available, any appraisal, environmental report, engineering report, operating
statements, rent rolls and copies of major leases.
"SERVICING OFFICER" means any officer or employee of the
Master Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans whose name and specimen signature appear on a
list of servicing officers or employees furnished to the Trustee by the Master
Servicer and signed by an officer of the Master Servicer, as such list may from
time to time be amended.
"SERVICING STANDARD" has the meaning set forth in Section
8.1(a).
"SERVICING TRANSFER EVENT" means, with respect to any Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (h)
of the definition of "Specially Serviced Mortgage Loan".
"SPECIAL SERVICER" means Banc One Mortgage Capital Markets,
LLC or any successor Special Servicer as herein provided.
"SPECIAL SERVICING FEE" means, with respect to each Specially
Serviced Mortgage Loan and REO Mortgage Loan, the fee designated as such and
payable to the Special Servicer pursuant to Section 8.10(b).
"SPECIAL SERVICING FEE RATE" means, with respect to each
Specially Serviced Mortgage Loan and REO Mortgage Loan, 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of
the Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee and the Master Servicer by the Special Servicer signed by an officer of
the Special Servicer, as such list may from time to time be amended.
"SPECIALLY SERVICED ASSET REPORT" means the report prepared by
the Special Servicer substantially with the information set forth in Exhibit G-2
attached hereto.
"SPECIALLY SERVICED MORTGAGE LOAN" means any Mortgage Loan as
to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Balloon Payment, which failure has continued unremedied for 30 days; or
(b) the related Mortgagor has failed to make when due any
Monthly Payment (other than a Balloon Payment) or any other payment required
under the related Mortgage Note or the related Mortgage, which failure continues
unremedied for 60 days; or
(c) the Master Servicer has determined, in accordance with the
Servicing Standard, that a default in the making of a Monthly Payment or any
other payment required under the related Mortgage Note or the related Mortgage
is likely to occur within 30 days and is likely to remain unremedied for at
least 60 days or, in the case of a Balloon Payment, for at least 30 days; or
(d) there shall have occurred a default under the related loan
documents, other than as described in clause (a) or (b) above, that (in the
Master Servicer's judgment in accordance with the
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Servicing Standard) materially impairs the value of the related Mortgaged
Property as security for the Mortgage Loan or otherwise materially and adversely
affects the interests of Certificateholders, which default has continued
unremedied for the applicable grace period under the terms of the Mortgage Loan
(or, if no grace period is specified, 60 days); or
(e) 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 or 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 related Mortgagor and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(f) the related Mortgagor shall have consented 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 such Mortgagor or of relating to all or
substantially all of its property; or
(g) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended payment of
its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan when a Liquidation Event has occurred in respect of such Mortgage Loan, or
at such time as such of the following as are applicable occur with respect to
the circumstances identified above that caused the Mortgage Loan to be
characterized as a Specially Serviced Mortgage Loan (and provided that no other
Servicing Transfer Event then exists):
(w) with respect to the circumstances described
in clauses (a) and (b) above, the related
Mortgagor has made three consecutive full
and timely Monthly Payments under the terms
of such Mortgage Loan (as such terms may be
changed or modified in connection with a
bankruptcy or similar proceeding involving
the related Mortgagor or by reason of a
modification, waiver or amendment granted or
agreed to by the Special Servicer pursuant
to Section 8.18);
(x) with respect to the circumstances described
in clauses (c), (e), (f) and (g) above, such
circumstances cease to exist in the good
faith and reasonable judgment of the Special
Servicer;
(y) with respect to the circumstances described
in clause (d) above, such default is cured;
and
(z) with respect to the circumstances described
in clause (h) above, such proceedings are
terminated.
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"STARTUP DAY" means, with respect to each of REMIC I, REMIC II
and REMIC III, the day designated as such in Section 12.1(b).
"STATED MATURITY DATE" means, with respect to any Mortgage
Loan, the Due Date on which the last payment of principal is due and payable
under the terms of the related Mortgage Note as in effect on the Closing Date,
without regard to any change in or modification of such terms in connection with
a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 8.18.
"STATED PRINCIPAL BALANCE" means, as of any date of
determination, with respect to any Mortgage Loan (including without limitation
any REO Mortgage Loan), an amount equal to (a) the unpaid principal balance of
such Mortgage Loan as of the Cut-off Date (or, in the case of a Replacement
Mortgage Loan, as of the related date of substitution), after application of all
payments due on or before such date, whether or not received, reduced on a
cumulative basis on each subsequent Distribution Date (to not less than zero) by
(b) the sum of (i) all payments (or P&I Advances in lieu thereof) of, and all
other collections allocated as provided in Section 1.2 to, principal of or with
respect to such Mortgage Loan that are (or, if they had not been applied to
cover any Additional Trust Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan during the related
Collection Period, provided that, notwithstanding the foregoing, if a
Liquidation Event occurs in respect of such Mortgage Loan (or any related REO
Property), then the "Stated Principal Balance" of such Mortgage Loan shall be
zero commencing as of the Distribution Date in the Collection Period next
following the Collection Period in which such Liquidation Event occurred.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Class O Certificates.
"SUB-SERVICER" means any Person with which the Master Servicer
or the Special Servicer has entered into a Sub-Servicing Agreement.
"SUB-SERVICING AGREEMENT" means the written contract between
the Master Servicer or the Special Servicer and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 8.4.
"SUBSTITUTION SHORTFALL AMOUNT" means, in connection with the
substitution of one or more Replacement Mortgage Loans for one or more Deleted
Mortgage Loans, the amount, if any, by which the Purchase Price or aggregate
Purchase Price, as the case may be, for such Deleted Mortgage Loan(s) exceeds
the initial Stated Principal Balance or aggregate Stated Principal Balance, as
the case may be, of such Replacement Mortgage Loan(s).
"TAX MATTERS PERSON" means the person designated as the "tax
matters person" of any REMIC Pool pursuant to Treasury Regulation Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T (or
relevant successor provision), which initially shall be the person having the
largest Percentage Interest in the Residual Certificates of the related REMIC
Pool.
"TAX RETURNS" means the federal income tax return on Internal
Revenue Service 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
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successor forms, to be filed on behalf of each of REMIC I, REMIC II and REMIC
III due to its classification as a REMIC under the REMIC Provisions pursuant to
its election filed in accordance with Section 5.5 hereof, the federal income tax
information return on Internal Revenue Service Form 1041 U.S. Income Tax Return
for Estate and Trusts, to be filed on behalf of the grantor trust, and any and
all other information, reports or returns that may be required to be furnished
to the Certificateholders or filed with the Internal Revenue Service or any
other governmental taxing authority under any applicable provisions of federal
or state law.
"TERMINATION PRICE" shall have the meaning set forth in
Section 10.1(b) herein.
"TRANSFER" means any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TREASURY RATE" has the meaning set forth in Section 6.4.
"TRUST" means the trust created pursuant to this Agreement,
the assets which consist of all the assets of REMIC I, REMIC II and REMIC III
and of the grantor trust.
"TRUST FUND" means, collectively, all of the assets of the
Trust.
"TRUSTEE" means LaSalle National Bank, as Trustee, or its
successor-in-interest, or if any successor trustee or any co-trustee shall be
appointed as herein provided, then Trustee shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means, with respect to each Mortgage Loan
(including without limitation each REO Mortgage Loan), the fee designated as
such and payable to the Trustee pursuant to Section 7.12, calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"TRUSTEE FEE RATE" means 0.0037% per annum.
"UCC FINANCING STATEMENT" means a financing statement executed
and filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana, the comparable provisions of
Louisiana law.
"UNCERTIFICATED ACCRUED INTEREST" shall mean, with respect to
any class of uncertificated REMIC I Regular Interests or REMIC II Regular
Interests for any Distribution Date, the product of the Uncertificated Principal
Balance of such class as of the close of the preceding Distribution Date (or, in
the case of the first Distribution Date, as of the Closing Date) and one-twelfth
of the applicable REMIC I Remittance Rate or REMIC II Remittance Rate. The
Uncertificated Accrued Interest in respect of each class of REMIC I Regular
Interests and REMIC II Regular Interests shall accrue on the basis of a 360-day
year consisting of twelve 30-day months.
"UNCERTIFICATED DISTRIBUTABLE INTEREST" means, with respect to
any REMIC I Regular Interest or REMIC II Regular Interest for any Distribution
Date, an amount equal to: (a) the Uncertificated Accrued Interest in respect of
such REMIC I Regular Interest or REMIC II Regular
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Interest, as the case may be, for such Distribution Date; reduced (to not less
than zero) by (b) the portion of any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date allocated to such REMIC I Regular Interest or REMIC
II Regular Interest, as the case may be, as set forth below; and increased by
(c) any Uncertificated Distributable Interest in respect of such REMIC I Regular
Interest or REMIC II Regular Interest, as the case may be, for the immediately
preceding Distribution Date that was not deemed paid on the immediately
preceding Distribution Date pursuant to Section 6.2 or 6.3, as applicable,
together with one month's interest (calculated on the basis of a 360-day year
consisting of twelve 30-day months) on such unpaid Uncertificated Distributable
Interest at the REMIC I Remittance Rate or the REMIC II Remittance Rate, as the
case may be, applicable to such REMIC I Regular Interest or REMIC II Regular
Interest, as the case may be, for the current Distribution Date. The Net
Aggregate Prepayment Interest Shortfall for any Distribution Date shall be
allocated: (i) among the respective REMIC I Regular Interests, pro rata in
accordance with the respective amounts of Uncertificated Accrued Interest with
respect thereto for such Distribution Date; and (ii) among the respective REMIC
II Regular Interests, pro rata in accordance with the respective amounts of
Uncertificated Accrued Interest with respect thereto for such Distribution Date.
"UNCERTIFICATED PRINCIPAL BALANCE" means the principal amount
of any REMIC I Regular Interest or REMIC II Regular Interest outstanding as of
any date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall equal the Cut-off Date Principal
Balance of the related Mortgage Loan. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 6.2 and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 6.5. As of the Closing Date, the Uncertificated Principal Balance of
each REMIC II Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall be reduced by all distributions of principal deemed to
have been made thereon on such Distribution Date pursuant to Section 6.3 and, if
and to the extent appropriate, shall be further reduced on such Distribution
Date as provided in Section 6.5.
"UNDERWRITABLE CASH FLOW" means, with respect to any Mortgaged
Property or REO Property, for any twelve month period (or such shorter period
calculated on an annualized basis), the underwritable cash flow amount
calculated in accordance with Exhibit H-1 hereto.
"UNDERWRITERS" means Morgan Stanley & Co. Incorporated or its
successor in interest and Residential Funding Securities Corporation or its
successor in interest.
"UNINSURED CAUSE" means any cause of damage to property
subject to a Mortgage such that the complete restoration of such property is not
fully reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 8.5.
"UNITED STATES PERSON" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States or a trust subject to the control of a United States person and
the primary supervision of a United States court.
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"UNLEGENDED DEFINITIVE CERTIFICATE" means a Definitive
Certificate that does not bear the Securities Legend.
"USPAP" means the Uniform Standards of Professional Appraisal
Practices.
"VOTING RIGHTS" means the voting rights to which the
Certificateholders are entitled hereunder. At all times during the term of this
Agreement, 97% of the Voting Rights shall be allocated among the Holders of the
various outstanding Classes of Principal Balance Certificates in proportion to
the respective Class Principal Balances of their Certificates, 2% of the Voting
Rights shall be allocated to the Holders of the Interest Only Certificates, and
the remaining Voting Rights shall be allocated among the Holders of the
respective Classes of the Residual Certificates in three equal shares. Voting
Rights allocated to a Class of Certificateholders shall be allocated among
Certificateholders of such Class in proportion to the Percentage Interests
evidenced by their respective Certificates. The Certificate Principal Balance of
each of the Certificates (other then the Class K, Class L, Class M, Class N and
Class O Certificates) will be notionally reduced (solely for purposes of
determining the Voting Rights of the related Classes) on any Distribution Date
to the extent of any Appraisal Reduction allocated to such Class on such
Distribution Date.
"WACHOVIA" means Wachovia Bank, National Association, a
national banking association.
"WACHOVIA LOANS" means, collectively, those Mortgage Loans
sold to the Depositor pursuant to Mortgage Loan Purchase Agreement III and shown
on Schedule III hereto.
"WATCH LIST": A report substantially containing the content
described in Exhibit H-6 attached hereto, setting forth, among other things, any
Mortgage Loan that is in jeopardy of becoming a Specially Serviced Mortgage Loan
prepared in accordance with Section 8.14(j).
"WEIGHTED AVERAGE REMIC I REMITTANCE RATE" means, with respect
to each Distribution Date, the weighted average of the REMIC I Remittance Rates
for the REMIC I Regular Interests, weighted on the basis of the Uncertificated
Principal Balances of the REMIC I Regular Interest related to each Mortgage Loan
at the beginning of the related Collection Period (disregarding any REMIC I
Regular Interest with respect to which a Principal Prepayment in full was
received during the Collection Period on the Mortgage Loan to which such REMIC I
Regular Interest relates).
"WITHHELD AMOUNT": With respect to (a) each Distribution Date
occurring in (i) January of each calendar year that is not a leap year and (ii)
February of each calendar year, an amount equal to one day's interest at the
Mortgage Rate (less the Master Servicing Fee Rate and the Trustee Fee Rate) as
of the Due Date on the respective Stated Principal Balance of each Mortgage Loan
that accrues interest on the basis of a 360-day year and the actual number of
days as of the Due Date in the month preceding the month in which such
Distribution Date occurs, to the extent that a Monthly Payment or a P&I Advance
is made in respect thereof.
"WORKOUT FEE" means, with respect to each Corrected Mortgage
Loan, the fee designated as such and payable to the Special Servicer pursuant to
Section 8.10(b).
"WORKOUT FEE RATE" means, with respect to each Corrected
Mortgage Loan as to which a Workout Fee is payable, 1.0% per annum.
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SECTION 1.2. CERTAIN CALCULATIONS IN RESPECT OF THE
MORTGAGE POOL.
(a) All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans (other than REO Mortgage Loans) in the form
of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds, shall be applied by the Master Servicer among such
Mortgage Loans in accordance with the express provisions of the related loan
documents and, in the absence of such express provisions, on a pro rata basis in
accordance with the respective amounts then "due and owing" as to each such
Mortgage Loan. All amounts collected in respect of any Mortgage Loan (whether or
not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) other than an
REO Mortgage Loan, in the form of payments from Mortgagors, Condemnation
Proceeds, Insurance Proceeds, Liquidation Proceeds, Repurchase Proceeds or
payments of Substitution Shortfall Amounts shall be applied to amounts due and
owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage and, in the
absence of, or to the extent not covered by, such express provisions, shall be
applied for purposes of this Agreement: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date, third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a
recovery of any Penalty Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any assumption fees and modification fees then due and
owing under such Mortgage Loan; ninth, as a recovery of any other amounts then
due and owing under such Mortgage Loan; and tenth, as a recovery of any
remaining principal of such Mortgage Loan to the extent of its entire remaining
unpaid principal balance. Notwithstanding the foregoing, any interest collected
on a Hyper-Amortization Loan that constitutes Excess Interest shall be applied
after the payment of the principal then due and owing on such Mortgage Loan.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be treated: first, as a
recovery of any related unreimbursed Servicing Advances; second, as a recovery
of accrued and unpaid interest on the related REO Mortgage Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
receipt; third, as a recovery of principal of the related REO Mortgage Loan to
the extent of its entire unpaid principal balance; and fourth, as a recovery of
any other amounts deemed to be due and owing in respect of the related REO
Mortgage Loan.
(c) The foregoing applications of amounts received in respect
of any Mortgage Loan or REO Property shall be determined by the Master Servicer.
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SECTION 1.3. INTERPRETATION.
(a) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.1 shall have the respective meanings given to them under United States
generally accepted accounting principles or regulatory accounting principles, as
applicable.
(b) The words "hereof", "herein" and "hereunder", and words of
similar import when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(c) Whenever a term is defined herein, the definition ascribed
to such term shall be equally applicable to both the singular and plural forms
of such term and to masculine, feminine and neuter genders of such term.
(d) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
ARTICLE II.
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1. CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby assign to the Trustee without recourse for the
benefit of the Certificateholders all the right, title and interest of the
Depositor, including any security interest therein for the benefit of the
Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage
Loan Schedule, (ii) Sections 2, 3, 6, 7 and 9 of each Mortgage Loan Purchase
Agreement and (iii) all other assets included or to be included in REMIC I (as
described in Section 12.1(a) hereof and the definition of REMIC I) or in the
grantor trust (as described in Section 12.1(b) hereof). Such assignment includes
all interest and principal received or receivable on or with respect to the
Mortgage Loans (other than payments of principal and interest due and payable on
the Mortgage Loans on or before the Cut-off Date). The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 13.12, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed thereby (with a copy
to the Master Servicer), on or before the Closing Date, the Mortgage File for
each Mortgage Loan so assigned. If a Seller cannot so deliver, or cause to be
delivered, as to any of its Mortgage Loans, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A)
and (xii) of the definition of "Mortgage File", with (if appropriate) evidence
of recording or filing, as the case may be, thereon, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, the delivery
requirements of this Section 2.1(b)
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shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File,
provided that such Seller has delivered to the Trustee on or before the Closing
Date a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by such Seller to be a true and complete copy of
the original thereof submitted for recording or filing, as the case may be), and
the Seller shall deliver to or at the direction of the Trustee, promptly
following the receipt thereof, the original of such missing document or
instrument (or a copy thereof) with (if appropriate) evidence of recording or
filing, as the case may be, thereon. If a Seller cannot so deliver, or cause to
be delivered, as to any of its Mortgage Loans, the original or a copy of the
related lender's title insurance policy referred to in clause (ix) of the
definition of "Mortgage File" solely because such policy has not yet been
issued, the delivery requirements of this Section 2.1(b) shall be deemed to be
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File, provided that such Seller has
delivered to the Trustee on or before the Closing Date a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, and such Seller
shall deliver to or at the direction of the Trustee, promptly following the
receipt thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
Cross-Collateralized Mortgage Loans only one original of any document referred
to in the definition of "Mortgage File" covering all the Mortgage Loans in such
group, then the inclusion of the original of such document in the Mortgage File
for any of the Mortgage Loans in such group shall be deemed an inclusion of such
original in the Mortgage File for each such Mortgage Loan. None of the Trustee,
any Custodian, the Master Servicer or the Special Servicer shall be liable for
any failure by any Seller or the Depositor to comply with the document delivery
requirements of the Mortgage Loan Purchase Agreements and this Section 2.1(b).
Notwithstanding the foregoing, the failure to deliver the
originals or copies of any of the documents or instruments referred to in
clauses (ii), (iv), (viii), (ix), (xi)(A) and (xii) of the definition of
"Mortgage File" shall constitute a Material Defect in respect of the related
Mortgage Loan under Section 2.3 hereof if not delivered within 120 days
following the Closing Date (or within such longer period after the Closing Date
as the Depositor (or such subsequent owner) may consent to, which consent shall
not be unreasonably withheld so long as the Seller has provided the Depositor
(or such subsequent owner) with evidence of such recording or filing, as the
case may be, or has certified to the Depositor (or such subsequent owner) as to
the occurrence of such recording or filing, as the case may be, and is, as
certified to the Depositor (or such subsequent owner) no less often than
quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy).
If any of the endorsements referred to in clause (i) of the
definition of "Mortgage File", or any of the assignments referred to in clauses
(iii), (v), (vii), (x)(B) and (xi)(B) of the definition of "Mortgage File", are
delivered to the Trustee in blank, the Trustee shall be responsible for
completing the related endorsement or assignment in the name of the Trustee (in
such capacity).
(c) The Trustee shall, as to each Mortgage Loan, at the
expense of the related Seller, promptly (and in any event within 45 days
following the receipt thereof) record or file, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment to the Trustee referred to in clauses (iii),
(v), (vii), (x)(B) and (xi)(B) of the definition of "Mortgage File". Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording or filing (at which time it shall
deliver a copy thereof to the Master Servicer); provided that in those instances
where the public recording office retains the original assignment of Mortgage,
assignment of Assignment of Leases, or assignment of security agreement the
Trustee shall obtain therefrom at the expense of the related Seller a certified
copy of the
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recorded original. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the Master Servicer promptly to prepare and file or record
or cause to be prepared and filed or recorded, a substitute therefor or cure
such defect, as the case may be, at the expense of the related Seller.
(d) All documents and records in the possession of the
Depositor or the Sellers that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof, together with all Escrow Payments and Reserve Funds in the possession
of the Depositor or the Sellers with respect to the Mortgage Loans, shall be
delivered to the Master Servicer on or before the Closing Date and shall be held
by the Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee and the Master
Servicer on or before the Closing Date a copy of a fully executed counterpart of
each Mortgage Loan Purchase Agreement, as in full force and effect on the
Closing Date.
(f) The Depositor shall, as to each Mortgage Loan that is
secured by the interest of the related Mortgagor under a ground lease, at its
own expense, promptly (and in any event within 45 days of the Closing Date)
notify the related ground lessor of the transfer of such Mortgage Loan to the
Trust Fund pursuant to this Agreement and inform such ground lessor that any
notices of default under the related ground lease should thereafter be forwarded
to the Master Servicer.
SECTION 2.2. ACCEPTANCE BY TRUSTEE. The Trustee will hold (i)
the documents constituting a part of the Mortgage Files delivered to it, (ii)
the other REMIC I assets, (iii) the REMIC II assets and (iv) the REMIC III
assets, in each case, in trust for the use and benefit of all present and future
Certificateholders, and will hold the grantor trust assets for the use and
benefit of present and future Class O Certificateholders.
Upon execution and delivery of this Agreement in respect of
the Initial Certification, and within 75 days after the execution and delivery
of this Agreement in respect of the Final Certification, the Trustee shall
examine the Mortgage Files in its possession, and shall deliver to the
Depositor, the Master Servicer, the Special Servicer and each Seller a
certification (the "INITIAL CERTIFICATION" and the "FINAL CERTIFICATION",
respectively, in the respective forms set forth as Exhibit B-1 and Exhibit B-2
hereto) stating, (i) in the case of the Initial Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, that
(A) all documents specified in clause (i) of the definition of "Mortgage File"
are in its possession, (B) such documents have been reviewed by it and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, (C) based on its
examination and only as to the foregoing documents, the loan number and the name
of the Mortgagor set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in such documents,
and (D) each Mortgage Note has been endorsed as provided in clause (i) of the
definition of "Mortgage File"; and (ii) in the case of the Final Certification,
as to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be
certified in the schedule of exceptions to Mortgage File delivery attached
thereto, that (W) all documents specified in clauses (i), (ii), (iii), (ix),
(xii) (to the extent it relates to the foregoing) and (xiii) are in its
possession, (X) all documents delivered to it or a Custodian as part of the
related Mortgage File have been reviewed by it or such Custodian and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, (Y) based on its
examination and
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only as to the foregoing documents, the loan number, the street address of the
Mortgaged Property and the name of the Mortgagor set forth in the Mortgage Loan
Schedule respecting such Mortgage Loan accurately reflects the information
contained in the documents in the Mortgage File and (Z) each Mortgage Note has
been endorsed and each Mortgage has been assigned as provided in clauses (i) and
(iii), respectively, of the definition of "Mortgage File." The Trustee shall
deliver to the Master Servicer, the Special Servicer and each Seller (as to its
respective Mortgage Loans only), the Operating Adviser and the Majority
Certificateholder of the Controlling Class, a copy of such Final Certification.
Within 180 days after the Cut-off Date, the Trustee shall provide a confirmation
to the Master Servicer, the Special Servicer and each Seller of receipt or
non-receipt of recorded Assignments of Mortgage. In giving the certifications
required above, the Trustee shall be under no obligation or duty to inspect,
review or examine any such documents, instruments, securities or other papers to
determine whether they or the signatures thereon are valid, legal, genuine,
enforceable, in recordable form or appropriate for their represented purposes,
or that they are other than what they purport to be on their face, or to
determine whether any Mortgage File should include any assumption agreement,
modification agreement, consolidation agreement, extension agreement, Assignment
of Lease, ground lease, UCC Financing Statement, guaranty, written assurance or
substitution agreement.
The Trustee or its authorized agents shall retain possession
and custody of each Mortgage File in accordance with and subject to the terms
and conditions set forth herein.
SECTION 2.3. SELLERS' REPURCHASE OF MORTGAGE LOANS FOR
DOCUMENT DEFECTS AND BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document
constituting a part of a Mortgage File has a Material Defect, or discovers or
receives notice of a breach of any representation, warranty or covenant relating
to any Mortgage Loan set forth in the related Mortgage Loan Purchase Agreement,
as the case may be, that may give rise to a repurchase obligation on the part of
the related Seller (a "BREACH"), such party shall give prompt written notice to
the other parties hereto. Promptly upon becoming aware of any such Material
Defect or Breach, the Trustee shall request that the related Seller within the
time period provided for in the related Mortgage Loan Purchase Agreement cure
such Material Defect or Breach, as the case may be, in all material respects or
repurchase the affected Mortgage Loan for a cash amount equal to the applicable
Purchase Price, all in accordance with the related Mortgage Loan Purchase
Agreement; provided, however, that, in lieu of effecting any such repurchase, a
Seller will be permitted to deliver a Qualifying Substitute Mortgage Loan and to
pay a cash amount equal to the applicable Substitution Shortfall Amount, subject
to the terms and conditions of the related Mortgage Loan Purchase Agreement and
this Agreement.
A document in the Mortgage File shall be deemed to have a
"MATERIAL DEFECT" if (a) any document required to be included in the Mortgage
File is not in the Trustee's possession within the time required to be
delivered, (b) such document has been mutilated, damaged, defaced, torn or
otherwise physically altered in any material respect at the time of its delivery
to the Trustee, (c) the information set forth in the Mortgage Loan Schedule
respecting such Mortgage Loan differs from the information contained in the
documents in the Mortgage File in a material and adverse manner, or (d) a
Mortgage Note has not been endorsed or a Mortgage has not been assigned, or an
assignment of Mortgage has not been delivered as provided in Section 2.1 hereof.
As to any Qualifying Substitute Mortgage Loan, the Trustee
shall direct the related Seller to deliver to the Trustee for such Qualifying
Substitute Mortgage Loan (with a copy to the Master Servicer), the related
Mortgage File with the related Mortgage Note endorsed as required by clause (i)
of
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the definition of "Mortgage File." No substitution may be made in any calendar
month after the Determination Date for such month. Monthly Payments due with
respect to Qualifying Substitute Mortgage Loans after the related date of
substitution, and Monthly Payments due with respect to Deleted Mortgage Loans
after the Cut-off Date and on or prior to the related date of substitution,
shall be part of the Trust Fund. Monthly Payments due with respect to Qualifying
Substitute Mortgage Loans on or prior to the related date of substitution, and
Monthly Payments due with respect to Deleted Mortgage Loans after the related
date of substitution, shall not be part of the Trust Fund and will be remitted
by the Master Servicer to the related Seller promptly following receipt.
In any month in which a Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the applicable Substitution Shortfall Amount. The
Trustee shall direct such Seller, to deposit cash equal to such amount into the
Collection Account concurrently with the delivery of the Mortgage File for the
Qualifying Substitute Mortgage Loan, without any reimbursement thereof. The
Master Servicer shall give written notice to the Trustee of such deposit
promptly following the occurrence thereof.
If the affected Mortgage Loan is to be repurchased, the
Trustee shall designate the Collection Account as the account to which funds in
the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
The Trustee shall direct the related Seller to amend the
Mortgage Loan Schedule to reflect the removal of each Deleted Mortgage Loan and,
if applicable the substitution of the Qualifying Substitute Mortgage Loan; and,
upon such amendment, the Trustee shall deliver or cause the delivery of such
amended Mortgage Loan Schedule to the other parties hereto. Upon any such
substitution, the Qualifying Substitute Mortgage Loan shall be subject to the
terms of this Agreement in all respects.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master Servicer
and the Special Servicer shall each promptly tender to the related Seller, upon
delivery to each of them of a receipt executed by such Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the related
Seller, or its designee in the same manner, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which
documents were previously assigned to the Trustee, but in any event, without
recourse, representation or warranty; provided that such tender by the Trustee
shall be conditioned upon its receipt from the Master Servicer of a Request for
Release.
(c) The Mortgage Loan Purchase Agreements provide the sole
remedies available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Defect or Breach.
SECTION 2.4. REPRESENTATIONS AND WARRANTIES. The Depositor
hereby represents and warrants to the Master Servicer, the Special Servicer, the
Fiscal Agent and the Trustee as of the Closing Date that:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to
own its property, to carry on its business as presently conducted, to
enter into and perform its obligations under this Agreement, and to
create the trust pursuant hereto;
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(ii) The execution and delivery by the Depositor of
this Agreement have been duly authorized by all necessary corporate
action on the part of the Depositor; neither the execution and delivery
of this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, (A) any
of the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties; (B) the
certificate of incorporation or bylaws of the Depositor; or (C) the
terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor
any of its Affiliates is a party to, bound by, or in breach of or
violation of any indenture or other agreement or instrument, or subject
to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or to the
best knowledge of the Depositor may in the future materially and
adversely affect (X) the ability of the Depositor to perform its
obligations under this Agreement or (Y) the business, operations,
financial condition, properties or assets of the Depositor;
(iii) The execution, delivery and performance by the
Depositor of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected
or taken prior to the Closing Date;
(iv) This Agreement has been duly executed and
delivered by the Depositor and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes a valid and
binding obligation of the Depositor enforceable against it in
accordance with its terms;
(v) There are no actions, suits or proceedings
pending or, to the best of the Depositor's knowledge, threatened or
likely to be asserted against or affecting the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (A)
with respect to any of the transactions contemplated by this Agreement
or (B) with respect to any other matter that in the judgment of the
Depositor will be determined adversely to the Depositor and will, if
determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or
otherwise, or adversely affect its ability to perform its obligations
under this Agreement; and
(vi) Immediately prior to the consummation of the
transactions contemplated in this Agreement, the Depositor had good
title to and was the sole owner of each Mortgage Loan free and clear of
any and all adverse claims, charges or security interests.
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SECTION 2.5. CONVEYANCE OF INTERESTS. Concurrently with the
execution and delivery of this Agreement, the Depositor does hereby transfer,
assign, set over, deposit with and otherwise convey to the Trustee, without
recourse, in trust, all the right, title and interest of the Depositor in and to
(i) the REMIC I Regular Interests in exchange for the REMIC II Interests and
(ii) the REMIC II Regular Interests in exchange for the REMIC III Certificates,
and (iii) the assets of the grantor trust in exchange for the 100% beneficial
ownership interest therein represented by the Class O Certificates.
ARTICLE III.
THE CERTIFICATES
SECTION 3.1. THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set
forth in Exhibits A-1 through A-16 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Certificates will be issued in minimum denominations
of (i) $25,000 initial Certificate Principal Balance, in the case of the Class
A-1 and Class A-2 Certificates, (ii) $50,000 initial Certificate Principal
Balance, in the case of the Class B Certificates, and (iii) $100,000 initial
Certificate Principal Balance or Certificate Notional Amount, as applicable, in
the case of the remaining Classes of Certificates, and in each case in integral
multiples of $1 in excess thereof. The Residual Certificates will be issued in
minimum Percentage Interests of not less than 10%.
(c) Each Certificate shall, on original issue, be
authenticated by the Trustee or the Authenticating Agent upon the order of the
Depositor. No Certificate shall be entitled to any benefit under this Agreement,
or be valid for any purpose, unless there appears on such Certificate a
certification of authentication substantially in the form provided for herein,
executed by an authorized officer of the Trustee or the Authenticating Agent, if
any, by manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Trustee for authentication, and the Trustee or the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, and deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the REMIC III Regular
Certificates, on the Closing Date the Trustee or the Authenticating Agent upon
the order of the Depositor shall authenticate Book-
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Entry Certificates that are issued to a Clearing Agency or its nominee as
provided in Section 3.6 against payment of the purchase price thereof.
SECTION 3.2. REGISTRATION. The Trustee initially shall be the
registrar (the "CERTIFICATE REGISTRAR") in respect of the Certificates who shall
maintain books for the registration and for the transfer of Certificates (the
"CERTIFICATE REGISTER"). The Certificate Registrar may resign or be discharged
or removed by the Trustee or the Certificateholders, and a new successor may be
appointed, in accordance with the procedures and requirements set forth in
Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
SECTION 3.3. TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof
only upon presentation and surrender of such Certificate at the Corporate Trust
Office (or the New York Presenting Office, if any) duly endorsed or accompanied
by a written instrument of transfer duly executed by such Holder or such
Holder's duly authorized attorney in such form as shall be satisfactory to the
Certificate Registrar. Upon the transfer of any Certificate in accordance with
the preceding sentence, and subject to the restrictions set forth in the other
subsections of this Section 3.3, the Trustee shall execute, and the Trustee or
any Authenticating Agent shall authenticate and deliver to the transferee, one
or more new Certificates of the same Class, in authorized denominations, and
evidencing, in the aggregate, the same aggregate Certificate Principal Balance,
Certificate Notional Amount or Percentage Interest, as the case may be, as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Trustee may decline to accept any request for a
registration of transfer of any Certificate during the period beginning five
calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for
any number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same aggregate Certificate Principal Balance,
Certificate Notional Amount or Percentage Interest, as the case may be, as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the Corporate Trust Office (or New York Presenting Office, if any) duly endorsed
or accompanied by a written instrument of exchange duly executed by such Holder
or such Holder's duly authorized attorney in such form as is satisfactory to the
Certificate Registrar. Certificates delivered upon any such exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered. No service charge shall be made to
a Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive.
(c) All Definitive Certificates that are Privately Offered
Certificates shall initially be Legended Definitive Certificates. By acceptance
of a Legended Definitive Certificate, whether upon original issuance or
subsequent transfer, each Holder of such a Certificate acknowledges the
restrictions
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on the transfer of such Certificate set forth in the Securities Legend and
agrees that it will transfer such a Certificate only as provided herein.
The Securities Legend shall appear on the face of the Legended
Definitive Certificates as follows:
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER
THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (3) TO A BUYER WHOM THE SELLER REASONABLY
BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) or (7) OF REGULATION D OF THE SECURITIES ACT AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
A transferee shall only be able to take delivery of an Unlegended
Definitive Certificate that is a Privately Offered Certificate if and after the
Depositor submits to the Trustee an Opinion of Counsel of the Depositor stating
that the Securities Legend is not required on such Definitive Certificate by
applicable law. Upon the Depositor submitting such Opinion of Counsel to the
Trustee, the Holder of such Certificate may submit such Certificate to the
Trustee to exchange such Certificate for an Unlegended Definitive Certificate
and the Trustee shall satisfy such request notwithstanding anything else herein
to the contrary, and delivery permitted herein of a Legended Definitive
Certificate may be made in the form of an Unlegended Definitive Certificate.
Except as described below in Sections 3.3(d), 3.3(e) and 3.3(f), no
restrictions to transfer shall apply to the transfer or registration of transfer
of an Unlegended Definitive Certificate to a transferee that takes delivery in
the form of an Unlegended Definitive Certificate.
(d) (i) No transfer of the Senior Certificate shall be made unless in
accordance with the prohibited transaction rules of ERISA and Section 4975
of the Code and the terms of the Exemption as described in the Prospectus
Supplement under "ERISA Considerations". No employee benefit plan or other
plan that is subject to ERISA or Section 4975 of the Code (each, a "Plan")
as to which the Initial Purchaser, the Depositor, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Operating Adviser or the Trustee is
a party in interest or disqualified person, and no QIB acting on behalf of
or with "plan assets" of any such Plan, may acquire such Certificates
unless pursuant to a statutory exemption or any of the administrative
exemptions issued by the U.S. Department of Labor, such that the
acquisition and holding of Senior Certificates by, on behalf of or with
"plan assets" of such Plan would not constitute or result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code by reason of
the application of one or more of the statutory or administrative
exemptions from the prohibited transaction rules described in the
Memorandum.
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(ii) No transfer of a Subordinate Certificate shall be made unless the
acquiror (i) is not a Plan and is not using "plan assets" of any Plan to
acquire such Certificates, or (ii) is an insurance company investing solely
assets of its general account and such purchase and holding of such
Certificates will not result in a non-exempt prohibited transaction under
ERISA or Section 4975 of the Code.
(e) No transfer, sale, pledge or other disposition of any
Privately-Offered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable
state securities laws, or is otherwise made in accordance with the
Securities Act and such state securities laws. If a transfer of any
Privately-Offered Certificate held as a Definitive Certificate is to be
made without registration under the Securities Act (other than in
connection with the initial issuance of the Certificates or a transfer of
such Privately-Offered Certificate by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached as Exhibit D-1 hereto and
a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as
Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the
Trustee to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective Transferee
on which such Opinion of Counsel is based (such Opinion of Counsel shall
not be an expense of the Trust or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such). If a transfer of any interest in a
Privately-Offered Certificate that constitutes a Book-Entry Certificate is
to be made without registration under the Securities Act (other than in
connection with the initial issuance of the Certificates or a transfer of
any interest in such Privately-Offered Certificate by the Depositor or any
of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form
attached as Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an
Opinion of Counsel to the effect that such transfer may be made without
registration under the Securities Act. None of the Depositor, the Trustee,
the Master Servicer or the Certificate Registrar is obligated to register
or qualify any Class of Privately-Offered Certificates under the Securities
Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any qualification.
Any Certificateholder or Certificate Owner desiring to effect a transfer of
Privately-Offered Certificates or interests therein shall, and does hereby
agree to, indemnify the Depositor, the Underwriter, the Trustee, the Master
Servicer, the Special Servicer and the Certificate Registrar against any
liability that may result if the transfer is not exempt from such
registration or qualification or is not made in accordance with such
federal and state laws.
(f) (i) No Residual Certificate may be held or beneficially owned by a
Disqualified Organization. The Residual Certificates shall not be held or
beneficially owned by a non-United States Person. Prior to the registration
of any transfer, sale, pledge or other disposition of a Residual
Certificate, the proposed transferee shall provide to the Trustee a
Transfer Affidavit and Agreement in substantially the form set forth in
Exhibit F, to the effect that such transferee (1) agrees to be bound by the
terms of this Agreement and any restrictions set forth on the face of such
Residual Certificate, as the case may be, and (2) is not a Disqualified
Organization or a non-United States Person and will not hold such Residual
Certificate on behalf of a Disqualified Organization or non-United States
Person, and will promptly notify the Trustee of any change or impending
change in its status as such. The transferor of the Residual
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Certificate shall also provide the Trustee with a Transferor Certificate
substantially in the form of Exhibit E.
(ii) In addition, any transfer, sale, pledge or other disposition of
any such Certificate to a Pass-Through Entity shall not be registered
unless the proposed transferee shall have agreed in writing, in such form
as the Trustee may require, to provide to the Trustee such information as
the Trustee may reasonably require concerning any record interest holder or
principal of such Pass-Through Entity who is or was a Disqualified
Organization. Any Holder of a Residual Certificate, by its acceptance
thereof, shall be deemed for all purposes to have consented to the
provisions of this Section 3.3(f).
(iii) The restrictions described in this Section 3.3(f) shall not
apply to a transfer of any such Certificate if the Trustee has received an
Opinion of Counsel to the effect that the restrictions described in this
Section 3.3(f) are not necessary to avoid the imposition of tax on a REMIC
or the disqualification of any REMIC as a REMIC under the Code.
(iv) (A) If any Disqualified Organization shall become a Holder of a
Residual Certificate, then the last-preceding non-Disqualified Organization
shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of
such transfer of such Residual Certificate. If a non-United States Person
shall become a holder of a Residual Certificate, then the last-preceding
United States Person shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date of
registration of such transfer of such Residual Certificate. If a transfer
of a Residual Certificate is disregarded pursuant to the provisions of
Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the
last-preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.3(f) or for making any payments due on such
Certificate to the holder thereof or for taking any other action with
respect to such holder under the provisions of this Agreement.
(B) If any purported transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 3.3(f) and to
the extent that the retroactive restoration of the rights of the Holder of
such Residual Certificate as described in clause (iv)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have the right,
without notice to the holder or any prior holder of such Residual
Certificate, to sell such Residual Certificate to a purchaser selected by
the Trustee on such terms as the Trustee may choose. Such purported
transferee shall promptly endorse and deliver each Residual Certificate in
accordance with the instructions of the Trustee. Such purchaser may be the
Trustee itself or any Affiliate of the Trustee. The proceeds of such sale,
net of the commissions (which may include commissions payable to the
Trustee or its Affiliates), expenses and taxes due, if any, will be
remitted by the Trustee to such purported transferee. The terms and
conditions of any sale under this clause (iv)(B) shall be determined in the
sole discretion of the Trustee, and the Trustee shall not be liable to any
Person having an ownership interest in a Residual Certificate as a result
of its exercise of such discretion.
(v) Trustee shall make available all information necessary to compute
any tax imposed (A) as a result of the transfer of an ownership interest in
a Residual Certificate to
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any Person who is a Disqualified Organization, including the information
regarding "excess inclusions" of such Residual Certificates required to be
provided to the Internal Revenue Service and certain Persons as described
in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B)
as a result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an ownership interest in a
Residual Certificate having as among its record holders at any time any
Person who is a Disqualified Organization. Reasonable compensation for
providing such information may be required by the Trustee from such Person.
(g) Each investor purchasing Privately Offered Certificates from
either Underwriter will be deemed to have represented and agreed as follows
(terms used herein that are defined in Rule 144A or in Regulation D under
the Securities Act ("REGULATION D") are used herein as defined therein):
(i) The investor understands that the Certificates have not been
registered under the Securities Act, and that if in the future it decides
to offer, resell, pledge or otherwise transfer such Certificates within two
years after the later of the original issuance of such Certificates or the
last date on which such Certificates are held by an affiliate of the
Depositor, it will do so only (i) to the Depositor, (ii) to a person that
the seller reasonably believes is a QIB in a transaction meeting the
requirements of Rule 144A, (iii) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder (if available), or
(iv) in certificated form to an Institutional Accredited Investor that
delivers to the Trustee a letter in the form of Exhibit D-2B hereto and
such certifications, legal opinions and other information 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 Securities Act, and in each case in
accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction.
(ii) The investor understands that the Certificates, except for the
Residual Certificates, will be issued only in the form of Book-Entry
Certificates, which will be held by the Custodian. Purchasers of such
Certificates will acquire beneficial interests in the Book-Entry
Certificates, which interests will be held directly or indirectly through
Participants.
(iii) The investor understands that Certificates will bear a Securities
Legend unless the Depositor determines otherwise consistent with applicable
law.
The Senior Certificates will also bear the following additional legend:
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN
EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR ANY PERSON ACTING ON BEHALF OF SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE
AN ACCREDITED INVESTOR.
The Subordinate Certificates will also bear the following legend:
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NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN
TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING
SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THE
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
ERISA OR SECTION 4975 OF THE CODE.
The Residual Certificates, will also bear the following additional legend:
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
(iv) The investor is either (i) a QIB purchasing for its own account
or for the account of another QIB and it and such other Person are aware
that the sale to it is being made in reliance on Rule 144A or (ii) an
Institutional Accredited Investor and is purchasing the Certificates for
its own account or for an account with respect to which it exercises sole
investment discretion.
(v) If the investor is a QIB, the investor understands that the
Certificates offered in reliance on Rule 144A will be represented by the
Book-Entry Certificates. Before any interest in the Book-Entry Certificates
may be offered, sold, pledged or otherwise transferred to an Institutional
Accredited Investor, the transferee will be required to provide the Trustee
with a Purchaser's Letter in the form attached hereto as Exhibit D-3A as to
compliance with the transfer restrictions referred to above.
(vi) The investor will deliver to each Institutional Accredited
Investor to whom it transfers Certificates notice of any restrictions on
transfer of such Certificates.
(vii) If the investor is acquiring Senior Certificates, it understands
that, in accordance with the prohibited transaction rules of ERISA and
Section 4975 of the Code and the terms of the Exemptions (as such term is
defined and described under the heading "ERISA CONSIDERATIONS" in the
Prospectus Supplement), no Plan as to which either Underwriter, the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Operating Adviser or the Trustee is a party in interest or disqualified
person, and no qualified institutional buyer acting on behalf of or with
"plan assets" of any such Plan, may acquire such Certificates unless
pursuant to a statutory exemption or any of the administrative exemptions
issued by the U.S. Department of Labor, such that the acquisition and
holding of Senior Certificates by, on behalf of or with "plan assets" of
such Plan would not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code by reason of the
application of one or more of the statutory or administrative exemptions
from the prohibited transaction rules described herein.
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(viii) If the investor is acquiring Subordinate or Residual
Certificates, (i) it is not a Plan and is not using "plan assets" of any
Plan to acquire such Certificates and (ii) if it is an insurance company,
it is investing solely assets of its general account, and it shall be
deemed to have represented and warranted that the purchase and holding of
such Certificates will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code.
(ix) If the investor is acquiring any Privately Offered Certificate as
a fiduciary or agent for one or more investor accounts, it represents that
it has sole investment discretion with respect to such account and that it
has full power to make the acknowledgments, representations and agreements
contained herein on behalf of each such account.
(x) The investor acknowledges that the Depositor, the Underwriters,
the Trustee, the Fiscal Agent and others will rely on the truth and
accuracy of the foregoing acknowledgments, representations and agreements,
and agrees that if any of the foregoing representations and agreements
deemed to have been made by it by its purchase are no longer accurate, it
shall promptly notify the Depositor and the Underwriters.
(xi) Each original purchaser of the Certificates will be required to
sign a Purchaser's Letter in the form attached as Exhibit D-2A, D-2B, D-3A
or D-3B hereto.
(xii) The Trustee shall have no liability to the Trust arising from a
transfer of any Certificate in reliance upon a certification, ruling or
Opinion of Counsel described in this Section 3.3; provided, however, that
the Trustee shall not register the transfer of a Residual Certificate if it
has actual knowledge that the proposed transferee does not meet the
qualifications of a permitted Holder of a Residual Certificate as set forth
in this Section 3.3.
SECTION 3.4. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a) any
mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) except in the case of a mutilated Certificate so
surrendered, there is delivered to the Trustee such security or indemnity as may
be required by it to save it harmless, then, in the absence of notice to the
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor and interest in the Trust. In connection with the issuance of any new
Certificate under this Section 3.4, the Trustee 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
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 3.5. PERSONS DEEMED OWNERS. Prior to presentation of a Certificate
for registration of transfer, the Depositor, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser and any agent of
the Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Trustee or the Operating Adviser may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Operating Adviser nor any agent of the
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Master Servicer, the Special Servicer, the Fiscal Agent, the Trustee or the
Operating Adviser shall be affected by any notice to the contrary.
SECTION 3.6. BOOK-ENTRY CERTIFICATES.
(a) Notwithstanding the foregoing, each Class of REMIC III Regular
Certificates, upon original issuance, shall be issued in the form of one or more
physical certificates (collectively, as to any Class of Book-Entry Certificates,
a "GLOBAL CERTIFICATE") representing such Class, to be delivered to the Trustee,
as custodian for The Depository Trust Company (the "DEPOSITORY"), the initial
Clearing Agency, by, or on behalf of, the Depositor. The Global Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the Depository, as the initial Clearing Agency, and no
Certificate Owner will receive a Definitive Certificate representing such
Certificate Owner's interest in the Book-Entry Certificates, except as provided
in Section 3.8. Unless and until Definitive Certificates have been issued to the
Certificate Owners pursuant to Section 3.8:
(i) the provisions of this Section 3.6 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Certificate Registrar and
the Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Certificates) as the authorized
representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement, the provisions of this Section
3.6 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall be
exercised only through the Clearing Agency and the applicable Participants
and shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency, the Participants and/or
the Indirect Participants. Pursuant to the Depository Agreement, unless and
until Certificates are issued in respect of such Classes pursuant to
Section 3.8, the initial Clearing Agency will make book-entry transfers
among the Participants and receive and transmit distributions of principal
and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of the Certificates
evidencing a specified percentage of the aggregate unpaid principal (and, in the
case of the Class X Certificates, notional) amount of Certificates, such
direction or consent may be given in respect of such Classes by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal (and, in the case of the Class X Certificates,
notional) amount of Certificates. The Clearing Agency may take conflicting
actions with respect to the Certificates to the extent that such actions are
taken on behalf of the Certificate Owners.
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SECTION 3.7. NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.8, the Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.8. DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Class of Book-Entry Certificates or their nominees if (i) the
Depository notifies the Depositor and the Trustee in writing that the Depository
is unwilling or unable to continue as Clearing Agency for the Book-Entry
Certificates and a qualifying successor Clearing Agency is not appointed by the
Depositor within 90 days thereof, (ii) the Depositor, at its option, elects to
terminate the book-entry system through the Clearing Agency or (iii) an Event of
Default shall have occurred and is continuing and Holders of Book-Entry
Certificates entitled to at least 51% of the Voting Rights thereof advise the
Depository and the Trustee that the continuation of the book-entry system
through the Depository (or a successor thereto) is no longer in the best
interest of Certificateholders. Upon notice of the occurrence of either of the
events described in the preceding sentence, the Trustee shall notify all
Certificate Owners, through the Clearing Agency, of the occurrence of the event
and of the availability of Definitive Certificates to such Certificate Owners
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall execute,
authenticate and deliver the Definitive Certificates. None of the Depositor, the
Fiscal Agent or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates, and the Trustee shall
recognize the Holders of Definitive Certificates as Certificateholders
hereunder.
(b) Distributions of principal and interest on the Definitive Certificates
shall be made by the Trustee directly to holders of Definitive Certificates in
accordance with the procedures set forth in this Agreement.
ARTICLE IV.
ADVANCES
SECTION 4.1. P&I ADVANCES BY MASTER SERVICER.
(a) On or before 1:00 p.m., New York City time, on each P&I Advance Date,
the Master Servicer shall, subject to Section 4.4, either (i) deposit into the
Distribution Account (or, to the extent made to cover unpaid Servicing Fees, in
the Collection Account) from its own funds an amount equal to the aggregate
amount of P&I Advances, if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the Collection Account for future
distribution to Certificateholders in subsequent months in discharge of any such
obligation to make P&I Advances, or (iii) make P&I Advances in the form of any
combination of (i) and (ii) aggregating the total amount of P&I Advances to be
made, provided that, if Late Collections of the delinquent principal and
interest payments for which P&I Advances are to be made for the related
Distribution Date, are on deposit in the Collection Account
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and available to make such P&I Advances, the Master Servicer shall utilize such
Late Collections to make such P&I Advances pursuant to clause (ii) above. Any
amounts held in the Collection Account for future distribution and so used to
make P&I Advances shall be appropriately reflected in the Master Servicer's
records and advanced by the Master Servicer by deposit in the Collection Account
on or before the next succeeding Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and interest in respect of which such P&I Advances were made). If, as
of 3:00 p.m., New York City time, on any P&I Advance Date, the Master Servicer
shall not have made any P&I Advance required to be made on such date pursuant to
this Section 4.1(a) (and shall not have delivered to the Trustee the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (404) 654-2478 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (404) 654-2000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
5:00 p.m., New York City time, on such day.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer
in respect of the Mortgage Loans (including without limitation Balloon Mortgage
Loans delinquent as to their respective Balloon Payments and REO Mortgage Loans)
for any Distribution Date shall equal, subject to Section 4.4 below, the
aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed
Monthly Payments, in each case net of any related Workout Fee, that were due or
deemed due, as the case may be, in respect thereof on their respective Due Dates
during the related Collection Period and that were not paid by or on behalf of
the related Mortgagors or otherwise collected as of the close of business on the
last day of the related Collection Period (or otherwise offset as provided in
Section 4.1(a) by amounts held in the Collection Account for future distribution
to Certificateholders); provided that, if an Appraisal Reduction has occurred
(and for so long as it exists) with respect to any Required Appraisal Loan,
then, in the event of subsequent delinquencies thereon, the amount of the P&I
Advance in respect of such Required Appraisal Loan for the related Distribution
Date shall be reduced to an amount equal to the product of (i) the amount of the
P&I Advance for such Required Appraisal Loan for such Distribution Date without
regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction, if any, and the denominator of which is equal
to the Stated Principal Balance of such Required Appraisal Loan immediately
prior to such Distribution Date. In addition, and without duplication, the
Master Servicer shall make only one P&I Advance in respect of each Mortgage Loan
for the benefit of the most subordinate Class of Certificates then outstanding
unless the related defaulted Monthly Payment is cured prior to the following Due
Date on any Mortgage Loan. The amount to be advanced by the Master Servicer,
Trustee or Fiscal Agent in respect of any Mortgage Loan on any Distribution Date
will be reduced by the greater of the reduction in respect of any Appraisal
Reduction and the reduction described in the preceding sentence. Notwithstanding
the foregoing, the Master Servicer will not be required to advance Default
Interest, Excess Interest or prepayment or yield maintenance premiums.
SECTION 4.2. SERVICING ADVANCES.
(a) The Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent shall each make Servicing Advances to the extent provided in this
Agreement, except to the extent that the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent determines, as applicable, in accordance with
Section 4.4 below, that any such Servicing Advance would be a Nonrecoverable
Advance. Such determination shall be conclusive and binding on the Trustee and
the Certificateholders.
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(b) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated,
subject to the second following paragraph, to reimburse the Special Servicer for
any Servicing Advances made by but not previously reimbursed to the Special
Servicer, and to pay the Special Servicer interest thereon at the Advance Rate
from the date the advance was made to, but not including, the date of
reimbursement. Such reimbursement and any accompanying payment of interest shall
be made within ten (10) days of the request therefor by wire transfer of
immediately available funds to an account designated by the Special Servicer.
Upon the Master Servicer's reimbursement to the Special Servicer of any
Servicing Advance and payment to the Special Servicer of interest thereon, all
in accordance with this Section 4.2(b), the Master Servicer shall for all
purposes of this Agreement be deemed to have made such Servicing Advance at the
same time as the Special Servicer originally made such Servicing Advance, and
accordingly, the Master Servicer shall be entitled to reimbursement for such
Servicing Advance, together with interest thereon at the Advance Rate, at the
same time, in the same manner and to the same extent as the Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance.
Notwithstanding anything to the contrary contained in this Agreement, if
the Special Servicer is required under this Agreement to make any Servicing
Advance but does not desire to do so, the Special Servicer may, in its sole
discretion, request that the Master Servicer make such Servicing Advance, such
request to be made in writing and in a timely manner that does not materially
and adversely affect the interests of any Certificateholder and to be
accompanied by such additional information regarding the circumstances
surrounding such Servicing Advance as the Master Servicer may reasonably
request. Subject to the following paragraph, the Master Servicer shall have the
obligation to make any such Servicing Advance that it is requested by the
Special Servicer to make within ten (10) days of the Master Servicer's receipt
of such request. The Special Servicer shall be relieved of any obligations with
respect to a Servicing Advance that it requests the Master Servicer to make
(regardless of whether or not the Master Servicer shall make such Advance). The
Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with Advance
Interest thereon, at the same time, in the same manner and to the same extent as
the Master Servicer is entitled with respect to any other Servicing Advance made
thereby.
Notwithstanding the foregoing provisions of this Section 4.2(b), the Master
Servicer shall not be required to make at the Special Servicer's direction, or
to reimburse the Special Servicer for, any Servicing Advance if the Master
Servicer determines (in its good faith and reasonable judgment) that the
Servicing Advance which the Special Servicer is requesting the Master Servicer
to make or to reimburse to the Special Servicer hereunder, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
or would be, if made, a Nonrecoverable Servicing Advance. The Master Servicer
shall notify the Special Servicer in writing of such determination. Such notice
shall not obligate the Special Servicer to make any such proposed Servicing
Advance. The Special Servicer shall promptly provide the Master Servicer with
any information that comes into its possession that constitutes evidence that
any future Advances made with respect to any Mortgage Loan or REO Property would
be Nonrecoverable Advances.
SECTION 4.3. ADVANCES BY TRUSTEE AND FISCAL AGENT.
(a) To the extent that the Master Servicer fails to make a P&I Advance by
11:00 a.m. on the Business Day following the related P&I Advance Date (other
than a P&I Advance that the Master Servicer determines is a Nonrecoverable
Advance), the Trustee shall make such P&I Advance unless the Trustee determines
that such P&I Advance, if made, would be a Nonrecoverable Advance. To the extent
that the Trustee is required hereunder to make P&I Advances, it shall deposit
the amount
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thereof in the Distribution Account (or, to the extent made to cover unpaid
Servicing Fees, in the Collection Account) on the relevant Distribution Date.
(b) To the extent that the Trustee fails to make a P&I Advance required to
be made by the Trustee hereunder by 12:00 p.m., New York City time, on any
Distribution Date (other than a P&I Advance that the Trustee determines is or
would be a Nonrecoverable Advance), the Fiscal Agent will advance such P&I
Advance unless the Fiscal Agent determines that any such P&I Advance, if made,
would be a Nonrecoverable Advance. To the extent that the Fiscal Agent is
required hereunder to make P&I Advances, it shall deposit the amount thereof in
the Distribution Account (or, to the extent made to cover unpaid Servicing Fees,
in the Collection Account) on such Distribution Date.
(c) To the extent that the Master Servicer or Special Servicer fails to
make a Servicing Advance by the fifteenth day after such Servicing Advance is
required to be made (other than a Servicing Advance that the Master Servicer or
Special Servicer determines is or would be a Nonrecoverable Advance), if the
Trustee has actual knowledge of such failure, the Trustee will be required to
give the defaulting party notice of such failure and, if such failure continues
for three (3) more Business Days, the Trustee shall make such Servicing Advance
unless the Trustee determines that such Servicing Advance, if made, would be a
Nonrecoverable Advance.
(d) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee knows or should know, pursuant to subsection (c) above, that
such Servicing Advance has not been made by the Master Servicer (other than a
Servicing Advance that the Trustee determines is or would be a Nonrecoverable
Advance), the Fiscal Agent will advance such Servicing Advance, unless the
Fiscal Agent determines that such Servicing Advance, if made, would be a
Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to be made by it
hereunder shall not constitute a default by the initial Trustee hereunder if the
initial Fiscal Agent makes such Advance.
SECTION 4.4. EVIDENCE OF NONRECOVERABILITY. Notwithstanding anything herein
to the contrary, no Advance shall be required to be made hereunder if such
Advance would, if made, constitute a Nonrecoverable Advance. In addition,
Nonrecoverable Advances shall be reimbursable pursuant to Section 5.2 out of
general collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. The determination by the Master Servicer, the Special
Servicer or, if applicable, 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 by an Officer's Certificate delivered
promptly (and, in any event, in the case of a proposed P&I Advance to be made by
the Master Servicer, no less than one Business Day prior to the related P&I
Advance Date) to the Trustee (or, if applicable, retained thereby) and the
Depositor, setting forth the basis for such determination, together with (if
such determination is prior to the liquidation of the related Mortgage Loan or
REO Property) a copy of an Appraisal or internal evaluation of the related
Mortgaged Property or REO Property, as the case may be, which shall have been
performed within the twelve months preceding such determination, and further
accompanied by any other information that the Master Servicer or the Special
Servicer may have obtained and that supports such determination. If such an
Appraisal or internal evaluation shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance,
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obtain an Appraisal for such purpose at the expense of the Trust payable out of
the Collection Account. The Trustee and the Fiscal Agent shall each be entitled
to rely on any determination of nonrecoverability that may have been made by the
Master Servicer or the Special Servicer with respect to a particular Advance,
and the Master Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Special Servicer with respect
to a particular Advance and shall have no obligation to make a separate
determination of recoverability.
SECTION 4.5. ADVANCE INTEREST. The Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent shall each be entitled to receive interest at
the Advance Rate in effect from time to time, accrued on the amount of each
Advance made thereby (out of its own funds) for so long as such Advance is
outstanding, payable: first, out of Default Interest received on the Mortgage
Loan (including, without limitation, an REO Mortgage Loan as to which such P&I
Advance was made) or second, if such amounts are insufficient, out of general
collections on the Mortgage Loans and REO Properties in the Collection Account.
SECTION 4.6. MERGER OR CONSOLIDATION OF FISCAL AGENT. Any Person into which
the Fiscal Agent may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Fiscal
Agent shall be a party, or any Person succeeding to the business of the Fiscal
Agent, shall be the successor of the Fiscal Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
(i) the successor to the Fiscal Agent or resulting Person shall have a net worth
of not less than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person shall
execute and deliver to the Trustee an agreement, in form and substance
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Fiscal Agent under this Agreement from and after
the date of such agreement, (iv) the Rating Agencies shall be given prior
written notice of the identity of the proposed successor or resulting Person and
the Rating Agencies shall have provided Rating Agency Confirmation, and (v) the
Fiscal Agent shall deliver to the Trustee an Officer's Certificate and an
Opinion of Counsel acceptable to the Trustee (which opinion shall be at the
expense of the Fiscal Agent) stating that all conditions precedent to such
action under this Section 4.6 have been completed and such action is permitted
by and complies with the terms of this Section 4.6.
SECTION 4.7. LIMITATION ON LIABILITY OF THE FISCAL AGENT AND OTHERS.
Neither the Fiscal Agent nor any of the directors, officers, employees, agents
or Controlling Persons of the Fiscal Agent shall be under any liability to the
Certificateholders, the Depositor, or the Trustee for any action taken or for
refraining from the taking of any action in good faith, using reasonable
business judgment, pursuant to this Agreement; provided that this provision
shall not protect the Fiscal Agent or any such person against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties under this Agreement. The Fiscal Agent
and any director, officer, employee or agent of the Fiscal Agent may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Fiscal
Agent shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its obligations under this Agreement.
The provisions of this Section 4.7 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
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SECTION 4.8. INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent and each of
its directors, officers, employees and agents shall be indemnified and held
harmless by the Trust out of the Collection Account against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to this Agreement, other than any loss, liability or
expense incurred by reason of a breach on the part of the Fiscal Agent of any of
its representations, warranties or covenants contained herein or the Fiscal
Agent's willful misfeasance, bad faith or negligence in the performance of
duties hereunder. The Fiscal Agent shall immediately notify the Master Servicer
and the Trustee if a claim is made by a third party with respect to this Section
4.8 entitling the Fiscal Agent, its directors, officers, employees or agents to
indemnification hereunder, whereupon the Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Fiscal
Agent) and pay out of the Collection Account all expenses in connection
therewith, including reasonable counsel fees, and promptly pay, discharge and
satisfy out of the Collection Account any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Master Servicer shall not affect any rights the Fiscal Agent, its directors,
officers, employees or agents may have to indemnification under this Section
4.8, unless the Master Servicer's defense of such claim is materially prejudiced
thereby. The indemnification provided herein shall survive the resignation or
removal of the Fiscal Agent and the termination of this Agreement.
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ARTICLE V.
COLLECTION ACCOUNT; DISTRIBUTION ACCOUNT;
CERTAIN TRUSTEE REPORTS
SECTION 5.1. COLLECTION ACCOUNT.
(a) The Master Servicer shall open, on or prior to the Closing Date, and
shall thereafter maintain a segregated account (the "COLLECTION ACCOUNT") solely
with respect to this Agreement, entitled "AMRESCO Services, L.P., as Master
Servicer for LaSalle National Bank, as Trustee for the Holders of Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-RM1,
Collection Account." The Collection Account shall be an Eligible Account.
(b) On or prior to the date the Master Servicer shall first deposit funds
in the Collection Account, the Master Servicer shall give to the Trustee prior
written notice of the name and address of the depository institution at which
the Collection Account is maintained and the account number of the Collection
Account. The Master Servicer shall take such actions as are necessary to cause
the depository institution holding the Collection Account to hold such account
in the name of the Master Servicer as provided in Section 5.1(a), subject to the
Master Servicer's right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) The Master Servicer shall deposit into the Collection Account on the
Business Day following receipt (or, in the case of unscheduled remittances of
principal or interest, on the Business Day following identification of the
proper application of such amounts), the following amounts received or paid by
it, other than in respect of interest and principal on the Mortgage Loans due on
or before the Cut-off Date which shall be remitted to the applicable Seller
(provided that the Master Servicer may retain amounts otherwise payable to the
Master Servicer as provided in Section 5.2(b) rather than deposit them into the
Collection Account):
(i) Principal: all payments on account of principal, including,
without limitation, the principal component of Monthly Payments, any late
payments in respect thereof and any Principal Prepayments, on the Mortgage
Loans;
(ii) Interest: all payments on account of interest, including, without
limitation, the interest component of Monthly Payments, any late payments
in respect thereof and any Default Interest on the Mortgage Loans but
excluding any Excess Interest (which, if and as received by the Master
Servicer or Special Servicer, shall be remitted by the Master Servicer or
the Special Servicer to the Trustee for deposit to the Excess Interest
Distribution Account);
(iii) Liquidation Proceeds: all Liquidation Proceeds with respect to
the Mortgage Loans, including, without limitation, REO Mortgage Loans;
(iv) Insurance Proceeds and Condemnation Proceeds: all Insurance
Proceeds and Condemnation Proceeds with respect to any Mortgaged Property
or REO Property (other than any such proceeds to be applied to the
restoration or repair of such property or released to the related Mortgagor
in accordance with applicable law, the terms of the related Mortgage Loan
or the Servicing Standard, in which case such proceeds shall be deposited
by the
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Master Servicer into an escrow account or released to the related
Mortgagor, as the case may be, and not deposited in the Collection
Account);
(v) Assumption Fees, Modification Fees, Late Fees and Prepayment
Premiums: all assumption fees, modification fees, Late Fees and Prepayment
Premiums with respect to the Mortgage Loans;
(vi) REO Income: all REO Income (net of any expenses and fees paid
therefrom by the related property manager) in respect of any REO
Properties;
(vii) Investment Losses: any amounts required to be deposited by the
Master Servicer pursuant to Section 5.1(e) and Section 5.3.2 in connection
with losses realized on Eligible Investments with respect to funds held in
the Collection Account or Interest Reserve Account;
(viii) P&I Advances: that portion of each P&I Advance that represents
the Master Servicing Fee and, if applicable, the Special Servicing Fee;
(ix) Repurchase Proceeds and Substitution Shortfall Amounts: All
Repurchase Proceeds and payments of Substitution Shortfall Amounts with
respect to the Mortgage Loans, including, without limitation, the REO
Mortgage Loans; and
(x) Other: all other amounts required to be deposited in the
Collection Account pursuant to this Agreement.
If the Master Servicer deposits in the Collection Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Collection Account, any provision herein to the contrary notwithstanding.
(d) Upon its receipt of any of the amounts described in clauses (i) through
(vi) of Section 5.1(c) with respect to any Mortgage Loan or REO Property, the
Special Servicer shall promptly, but in no event later than the Business Day
after receipt, remit such amounts to the Master Servicer for deposit into the
Collection Account in accordance with Section 5.1(c), unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer and shall deliver promptly, but in no event later
than the Business Day after receipt, any such check to the Master Servicer by
overnight courier, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item cannot be so endorsed and delivered
because of a restrictive endorsement or other appropriate reason. The Master
Servicer shall promptly inform the Special Servicer of the name, account number,
location and other necessary information concerning the Collection Account in
order to permit the Special Servicer to make deposits therein.
(e) Funds in the Collection Account may be invested and, if invested, shall
be invested by, and at the risk of, the Master Servicer in Eligible Investments
selected by the Master Servicer which shall mature, unless payable on demand,
not later than the Business Day immediately preceding the next Master Servicer
Remittance Date, and any such Eligible Investment shall not be sold or disposed
of prior to its maturity unless payable on demand. All such Eligible Investments
shall be made in the name of "AMRESCO Services L.P., in trust for LaSalle
National Bank, as Trustee for the
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Holders of the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1." None of the Depositor, the Mortgagors, the
Trustee or the Fiscal Agent shall be liable for any loss incurred on such
Eligible Investments.
An amount equal to all income and gain realized from any such investment
(to the extent not needed to offset losses from other investments) shall be paid
to the Master Servicer as additional servicing compensation and shall be subject
to its withdrawal at any time from time to time. The amount of any losses
incurred in respect of any such investments shall be for the account of the
Master Servicer which shall deposit the amount of such loss (to the extent not
offset by income from other investments) in the Collection Account out of its
own funds no later than the next succeeding Master Servicer Remittance Date.
Except as expressly provided otherwise in this Agreement, if any default
occurs in the making of a payment due under any Eligible Investment, or if a
default occurs in any other performance required under any Eligible Investment,
the Trustee or the Master Servicer may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings; provided, however, that if the Master Servicer shall
have deposited in the Collection Account an amount equal to all amounts due
under any such Eligible Investment (net of anticipated income or earnings
thereon that would have been payable to the Master Servicer as additional
servicing compensation), the Master Servicer shall have the sole right to
enforce such payment or performance.
(f) Certain of the Mortgage Loans may provide for payment by the Mortgagor
to the Master Servicer of amounts to be used for payment of Escrow Payments for
the account of the Mortgagor. The Master Servicer shall deal with these amounts
in accordance with the Servicing Standard, applicable law and the terms of the
related Mortgage Loans.
SECTION 5.2. APPLICATION OF FUNDS IN THE COLLECTION ACCOUNT.
(a) Monthly, on each Master Servicer Remittance Date, the Master Servicer
shall withdraw from the Collection Account and deliver to the Trustee for
deposit in the Distribution Account all amounts then on deposit in the
Collection Account that represent payments and other collections on or in
respect of the Mortgage Loans and any REO Properties that were received by the
Master Servicer or the Special Servicer through the end of the related
Collection Period, exclusive of any such payments and other collections that:
(i) constitute Monthly Payments due on a Due Date following the end of the
related Collection Period; (ii) are payable or reimbursable to any Person from
the Collection Account pursuant to clauses (i) through (xvi), inclusive, of
Section 5.2(b); and/or (iii) were deposited in the Collection Account in error.
The Trustee shall notify the Master Servicer (in a manner consistent with the
last sentence of Section 4.1(a)) if any such remittance is not received by 3:00
p.m., New York City time, on any Master Servicer Remittance Date. In addition,
on each P&I Advance Date, the Master Servicer is authorized (or, to the extent
provided in Section 4.1, required) to apply certain amounts held in the
Collection Account for future distribution to Certificateholders in subsequent
months and certain Late Collections, all as more particularly specified in
Section 4.1, to make required P&I Advances on such date.
(b) The Master Servicer may, from time to time, also make withdrawals from
the Collection Account for any of the following purposes:
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(i) Servicing Fees: to pay to itself unpaid Master Servicing Fees and
to the Special Servicer unpaid Special Servicing Fees, in each case earned
thereby in respect of each Mortgage Loan, including, without limitation,
each REO Mortgage Loan, the Master Servicer's and the Special Servicer's
respective rights to payment pursuant to this clause (i) being limited to
amounts received, in each case, in respect of such Mortgage Loan that is
allocable as a recovery of interest thereon or advanced as the interest
portion of a P&I Advance with respect to such Mortgage Loan;
(ii) Workout Fees and Liquidation Fees: to pay to the Special Servicer
earned and unpaid Workout Fees and Liquidation Fees to which it is entitled
pursuant to, and from the sources contemplated by, Section 8.10(b);
(iii) P&I Advances: to reimburse each of the Fiscal Agent, the Trustee
and the Master Servicer, in that order, for unreimbursed P&I Advances made
by each such Person, the Fiscal Agent's, Trustee's and Master Servicer's
respective rights to be reimbursed pursuant to this clause (iii) being
limited to amounts received that represent Late Collections of interest on
and principal of the particular Mortgage Loans, including, without
limitation, REO Mortgage Loans, with respect to which such P&I Advances
were made (in each case net of related Workout Fees);
(iv) Servicing Advances: to reimburse each of the Fiscal Agent, the
Trustee, the Master Servicer and the Special Servicer, in that order, for
unreimbursed Servicing Advances made by each such Person, the Fiscal
Agent's, the Trustee's, the Master Servicer's and the Special Servicer's
respective rights to be reimbursed pursuant to this clause (iv) being
limited to amounts received that represent Late Collections of interest on
and principal of the particular Mortgage Loans, including, without
limitation, REO Mortgage Loans, with respect to which such Servicing
Advances were made with respect to any Mortgage Loan or REO Property;
(v) Nonrecoverable Advances: to reimburse the Fiscal Agent, the
Trustee, the Master Servicer and the Special Servicer, in that order, out
of general collections on the Mortgage Loans and REO Properties, for
Nonrecoverable Advances made by each such Person;
(vi) Advance Interest: to pay the Fiscal Agent, the Trustee, the
Master Servicer and the Special Servicer, in that order, any unpaid Advance
Interest due and payable thereto, the Fiscal Agent's, the Trustee's, the
Master Servicer's and the Special Servicer's respective rights to payment
pursuant to this clause (vi) being limited to Default Interest collected in
respect of the Mortgage Loans, including without limitation any REO
Mortgage Loan, as to which the related Advance was made;
(vii) More Advance Interest: at or following such time as it
reimburses itself, the Special Servicer, the Trustee or the Fiscal Agent,
as applicable, for any unreimbursed Advance pursuant to clause (iii), (iv)
or (v) above or pursuant to Section 8.3, and insofar as payment has not
already been made pursuant to clause (vi) above, to pay itself, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, out of
general collections on the Mortgage Loans and REO Properties, any related
Advance Interest accrued and payable on such Advance;
(viii) Additional Master Servicing and Special Servicing Compensation:
to pay to each of itself and the Special Servicer all amounts deposited in
the Collection Account
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from time to time that constitute Additional Master Servicing Compensation
and Additional Special Servicing Compensation, respectively;
(ix) Certain Environmental Costs: to pay out of general collections on
the Mortgage Loans and REO Properties, any costs and expenses incurred by
the Trust pursuant to Section 8.7(c);
(x) Operation, Management and Maintenance of REO Property: to pay
expenses related to the proper operation, management and maintenance of any
REO Property pursuant to Section 8.20, but only out of amounts (whether in
the form of REO Income, Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds) relating to such REO Property;
(xi) REO Extensions: to pay, out of general collections on the
Mortgage Loans and REO Properties, the cost of obtaining any REO Extension
contemplated by Section 8.19(a) in respect of any REO Property;
(xii) General Reimbursements and Indemnities: to pay itself, the
Special Servicer, the Trustee, the Fiscal Agent, or any of their respective
directors, officers, employees and agents, as the case may be, out of
general collections on the Mortgage Loans and REO Properties, pro rata
based on their respective entitlements, any amounts payable to any such
Person pursuant to any of Sections 4.8, 7.11, 8.15, 8.26 and 8.27;
(xiii) Legal Advice: to pay, out of general collections on the
Mortgage Loans and REO Properties, for (A) the cost of the Opinions of
Counsel contemplated by Sections 8.7(b)(ii), 8.19(a) and 13.13, (B) the
cost of any other Opinion of Counsel contemplated by this Agreement which
is specifically identified as an expense of the Trust and (C) the cost of
the advice of counsel contemplated by Section 8.20(a);
(xiv) Deleted Mortgage Loans: to any Seller or other appropriate
Person, with respect to each Mortgage Loan or REO Property, if any,
previously purchased or replaced by such Person pursuant to or as
contemplated by this Agreement, all amounts received on such Deleted
Mortgage Loan subsequent to the date of purchase;
(xv) Taxes: to pay any and all federal, state and local taxes imposed
on REMIC I, REMIC II or REMIC III or on the assets or transactions of any
such REMIC Pool, together with all incidental costs and expenses, and any
and all reasonable expenses relating to tax audits, if and to the extent
that either (A) none of the Trustee, the Fiscal Agent, the Master Servicer
or the Special Servicer is liable therefor pursuant to Section 12.1(k), or
(B) any such Person that may be so liable (including any Holder of a Class
R-I, Class R-II or Class R-III Certificate) has failed to make the required
payment;
(xvi) Other Expenses of Trust: to pay to the Person entitled thereto
any amounts specified herein to be expenses of the Trust, the payment of
which is not more specifically provided for in any prior clause of this
Section 5.2(b);
(xvii) Correction of Errors: to withdraw funds deposited in the
Collection Account in error; and
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(xviii) Clear and Terminate: to clear and terminate the Collection
Account with a termination of the Trust pursuant to Section 10.1.
The Master Servicer shall pay to or at the direction of each of the
Depositor, the Special Servicer, the Trustee and the Fiscal Agent from the
Collection Account amounts permitted to be paid therefrom to such Person (or to
third parties in respect of matters that are such Person's responsibility or
under such Person's control) promptly upon receipt of a certificate of, as
applicable, an Authorized Officer of the Depositor, a Special Servicing Officer
of the Special Servicer or a Responsible Officer of the Trustee or the Fiscal
Agent, describing the item and amount to which the Depositor, the Special
Servicer, the Trustee or the Fiscal Agent (or such third party), as the case may
be, is entitled. The Master Servicer may rely conclusively on any such
certificate and shall have no duty to re-calculate the amounts stated therein.
The Master Servicer shall keep and maintain a separate accounting for each
Mortgage Loan for the purpose of justifying any withdrawal from the Collection
Account.
SECTION 5.3. DISTRIBUTION ACCOUNT; EXCESS INTEREST DISTRIBUTION ACCOUNT;
INTEREST RESERVE ACCOUNT.
(a) The Trustee shall establish, on or prior to the Closing Date, and
thereafter maintain in the name of the Trustee, a segregated account (the
"DISTRIBUTION ACCOUNT") solely with respect to this Agreement, to be held in
trust for the benefit of the Holders of interests in the Trust until disbursed
pursuant to the terms of this Agreement, entitled: "LaSalle National Bank, as
trustee, in trust for the benefit of the Holders of Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-RM1,
Distribution Account." The Distribution Account shall be an Eligible Account.
(b) The Trustee shall deposit into the Distribution Account on the Business
Day received all moneys remitted by the Master Servicer pursuant to Section
5.2(a) of this Agreement, together with (i) all P&I Advances and Compensating
Interest Payments made by the Master Servicer and (ii) any reimbursements or
indemnifications of the Trust made by any party hereto or any other Person.
Funds in the Distribution Account shall not be invested. The Distribution
Account shall be held separate and apart from and shall not be commingled with
any other monies of or held in trust by the Trustee, including, without
limitation, other monies of the Trustee held under this Agreement.
(c) The Trustee shall make withdrawals from the Distribution Account only
for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account in error
and pay such amounts to the Persons entitled thereto;
(ii) to pay itself unpaid Trustee Fees and any other amounts owed to
it pursuant to Section 7.12 hereof;
(iii) to make distributions to the Certificateholders pursuant to
Section 6.4; and
(iv) to clear and terminate the Distribution Account in connection
with a termination of the Trust pursuant to Section 10.1.
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SECTION 5.3.1. EXCESS INTEREST DISTRIBUTION ACCOUNT.
(a) The Trustee shall establish, on or prior to the Closing Date, and
thereafter maintain in the name of the Trustee, a segregated account (the
"Excess Interest Distribution Account") solely with respect to this Agreement,
to be held in trust for the benefit of the Holders of beneficial interests in
the grantor trust described in Section 12.1(b) hereof, until disbursed pursuant
to the terms of this Agreement, entitled "LaSalle National Bank, as trustee, in
trust for the benefit of the Holders of Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-RM1 Excess Interest
Distribution Account." The Excess Interest Distribution Account shall be an
Eligible Account.
(b) The Trustee shall deposit into the Excess Interest Distribution Account
on the Business Day received all moneys received by it from the Master Servicer
or Special Servicer as Excess Interest. The Trustee shall hold uninvested any
funds in the Excess Interest Distribution Account, and shall hold the Excess
Interest Distribution Account separate and apart from, and shall not commingle
any monies thereof with, any other monies of or held in trust by the Trustee,
including, without limitation, other monies of the Trustee held under this
Agreement.
(c) The Trustee shall make withdrawals from the Excess Interest
Distribution Account only for the following purposes:
(i) to withdraw amounts deposited in the Excess Interest Distribution
Account in error and to pay such amounts to the Persons entitled thereto;
(ii) to make distributions to the Class O Certificateholders pursuant
to Section 6.4.1, and
(iii) to clear and terminate the Excess Interest Distribution Account
in connection with a termination of the Trust pursuant to Section 10.1.
SECTION 5.3.2. INTEREST RESERVE ACCOUNT.
The Trustee shall establish, on or prior to the Closing Date, and
thereafter maintain in the name of the Trustee, a segregated account (the
"Interest Reserve Account") solely with respect to this Agreement, to be held in
trust for the benefit of the Holders of the Certificates until disbursed
pursuant to the terms of this Agreement, entitled "LaSalle National Bank, as
trustee, in trust for the benefit of the Holders of Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-RM1 Interest
Reserve Account." The Interest Reserve Account shall be an Eligible Account.
On each Distribution Date occurring in (i) January of each calendar year
that is not a leap year and (ii) February of each calendar year, the Master
Servicer shall calculate the Withheld Amount. On each such Distribution Date,
the Trustee shall withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the aggregate of the Withheld
Amounts. If the Trustee shall deposit in the Interest Reserve Account any amount
not required to be deposited therein, it may at any time withdraw such amount
from the Interest Reserve Account, any provision herein to the contrary
notwithstanding. On or prior to the Distribution Date in March of each calendar
year, the Trustee shall transfer to the Distribution Account the aggregate of
all Withheld Amounts on deposit in the Interest Reserve Account.
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The Master Servicer may, from time to time, request the Trustee to make
withdrawals from the Interest Reserve Account to pay itself, as additional
servicing compensation in accordance with Section 8.10, net interest and
investment income earned in respect of amounts in the Interest Reserve Account.
Funds in the Interest Reserve Account may be invested and, if invested,
shall be invested at the direction of, and at the risk of, the Master Servicer
in Eligible Investments selected by the Master Servicer which shall mature,
unless payable on demand, not later than the Business Day immediately preceding
the date that such funds are required to be transferred to the Distribution
Account, and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "AMRESCO Services L.P., in trust for LaSalle National Bank,
as Trustee for the Holders of the Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-RM1."
An amount equal to all income and gain realized from any such investment
(to the extent not needed to offset losses from other investments) shall be paid
to the Master Servicer as additional servicing compensation and shall be subject
to its withdrawal at any time from time to time. The amount of any losses
incurred in respect of any such investments shall be for the account of the
Master Servicer which shall deposit the amount of such loss (to the extent not
offset by income from other investments) in the Collection Account out of its
own funds no later than the next succeeding Master Servicer Remittance Date.
SECTION 5.4. TRUSTEE REPORTS; ACCESS TO INFORMATION.
(a) Based on (and to the extent of the information contained in) the Master
Servicer Remittance Report and the report pursuant to Section 8.14(a) provided
to the Trustee by the Master Servicer, which shall be delivered no later than
the related Report Date, and the report delivered pursuant to Section 8.11(a),
which shall be delivered no later than two Business Days following the related
Determination Date (except with respect to the delinquency reporting
information, which shall be delivered no later than the related Report Date), on
each Distribution Date, the Trustee shall deliver or cause to be sent by first
class mail (or such other medium as the Depositor shall reasonably request, the
incremental cost of which shall be paid in advance by the recipient thereof), to
each Certificateholder, the Rating Agencies, the Master Servicer, the Special
Servicer, the Underwriters, the Depositor, RFC and the Operating Adviser (or if
no Operating Adviser has been elected, then the Majority Certificateholder of
the Controlling Class), and, upon request and written certification as to its
beneficial ownership interest in the Book-Entry Certificates, to any Certificate
Owner: (i) a Monthly Certificateholder Report (substantially in the form of
Exhibit G-1); and (ii) a report containing information regarding the Mortgage
Loans as of the end of the related Collection Period, which report will contain
substantially the categories of information regarding the Mortgage Loans set
forth in Exhibit I. The report referred to in clause (ii) of the preceding
sentence shall be updated from time to time within a reasonable period after the
requisite information is available. The Trustee shall be entitled, in the
absence of manifest error, to conclusively rely on any such information provided
to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify any such information.
(b) The Trustee shall provide or cause to be provided to the Depositor, the
Master Servicer and the Special Servicer, and to the OTS, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to the Mortgage Files and
any other documentation regarding the Mortgage Loans and the Trust Fund within
its control that may be required by this Agreement or by applicable law. Such
access shall be afforded
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without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Trustee designated by it.
(c) Within a reasonable period of time after the end of each calendar year,
the Trustee shall send to each Person who at any time during the calendar year
was a Certificateholder of record, a report summarizing the items specified in
clauses (i), (ii) and (x) of the definition of Monthly Certificateholder Report
and provided to Certificateholders pursuant to this Section 5.4, aggregated for
such calendar year or the applicable portion thereof during which such Person
was a Certificateholder, together with such other customary information as the
Trustee deems may be necessary or desirable for such Certificateholders to
prepare their federal income tax returns.
(d) The Trustee shall make available to Persons with an account number on
the Trustee's ASAP (Automatic Statements Accessed by Phone) System (or a similar
system), the reports described in Section 5.4(a) and a summary report of
Certificate Factors via automated facsimile. The Trustee shall make available,
upon request, to Certificateholders, Certificate Owners identified to the
Trustee in accordance with subsection (g) below, the Depositor, the
Underwriters, the Master Servicer, the Rating Agencies and the Special Servicer
account numbers on the Trustee's ASAP System (or a similar system). In addition,
if the Depositor so directs the Trustee and on terms acceptable to the Trustee,
the Trustee shall make available through its electronic bulletin board system,
on a confidential basis, such information related to the Mortgage Loans as the
Depositor may reasonably request. A directory has been set up on the bulletin
board in which an electronic file is stored containing monthly servicer data.
All files shall be password protected. Passwords to each file shall be released
by the Trustee, upon request, to Certificateholders, Certificate Owners
identified to the Trustee in accordance with subsection (g) below, the
Depositor, the Underwriters, the Master Servicer, the Rating Agencies and the
Special Servicer. The Trustee also maintains a site on the World Wide Web at
www.lnbabs.com at which certain of the above information will be available.
(e) The Trustee shall make available at its Corporate Trust Office, during
normal business hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Prospective Investor, the
Underwriters, each Rating Agency, the Operating Adviser (or if no Operating
Adviser has been elected, then the Majority Certificateholder of the Controlling
Class) and the Depositor, originals or copies of, among other things, the
following items: (i) this Agreement, the Mortgage Loan Purchase Agreements and
any amendments thereto, to the extent such items are in the Trustee's
possession, (ii) all Monthly Certificateholder Reports and reports pursuant to
Section 5.4(a)(ii) delivered by the Trustee to Certificateholders since the
Closing Date and all Operating Statement Analyses, reports pursuant to Section
8.14(a), and Master Servicer Remittance Reports received by the Trustee from the
Master Servicer since the Closing Date, (iii) all Officer's Certificates
delivered to the Trustee since the Closing Date pursuant to Section 8.12, (iv)
all accountants' reports delivered to the Trustee since the Closing Date
pursuant to Section 8.13, (v) the most recent property inspection reports in the
possession of the Trustee in respect of each Mortgaged Property and REO
Property, (vi) the most recent Mortgaged Property/REO Property annual operating
statement and rent roll, if any, collected or otherwise obtained by or on behalf
of the Master Servicer or the Special Servicer and delivered to the Trustee,
(vii) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Master Servicer and/or the Special Servicer
and delivered to the Trustee, (viii) any and all Officer's Certificates (and
attachments thereto) delivered to or retained by the Trustee to support any of
its, the Fiscal Agent's, the Special Servicer's or the Master Servicer's
determination that any Advance was not or, if made, would not be, recoverable,
(ix) any reports delivered by the Special Servicer to the Trustee pursuant to
Section 8.7(e), and (x) copies of the Prospectus Supplement and the Memorandum,
as such may have been amended or supplemented from time to time
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and delivered to the Trustee. Copies (or computer diskettes or other digital or
electronic copies of such information if reasonably available in lieu of paper
copies) of any and all of the foregoing items shall be made available by the
Trustee upon request; provided, however, that the Trustee shall be permitted to
require payment by the requesting party (other than the Depositor, the
Underwriters, the Master Servicer, the Special Servicer or either Rating Agency)
of a sum sufficient to cover the reasonable expenses actually incurred by the
Trustee of providing access or copies (including electronic or digital copies)
of any such information requested in accordance with the preceding sentence.
(f) The Trustee shall afford the Underwriters, the Rating Agencies, the
Depositor, the Fiscal Agent, the Master Servicer, the Special Servicer, the
Operating Adviser, any Certificateholder, any Certificate Owner and any
Prospective Investor, upon reasonable notice and during normal business hours,
reasonable access to all relevant, non-attorney-client-privileged records and
documentation, including without limitation information delivered by the Master
Servicer or the Special Servicer to the Trustee pursuant to Section 8.16,
regarding the Mortgage Loans, any REO Properties and all other relevant matters
relating to this Agreement, and access to Responsible Officers of the Trustee.
Copies (or computer diskettes or other digital or electronic copies of such
information if reasonably available in lieu of paper copies) of any and all of
the foregoing items shall be made available by the Trustee upon request;
provided, however, that the Trustee shall be permitted to require payment by the
requesting party (other than the Depositor, the Master Servicer, the Special
Servicer, the Underwriters or either Rating Agency) of a sum sufficient to cover
the reasonable expenses actually incurred by the Trustee of providing access or
copies (including electronic or digital copies) of any such information
requested in accordance with the preceding sentence.
(g) In connection with providing access to or copies of the items described
in subsections (d), (e) and (f) of this Section 5.4, the Trustee may require (a)
in the case of Certificate Owners, a written confirmation executed by the
requesting Person, in form reasonably satisfactory to the Trustee, generally to
the effect that such Person is a beneficial holder of Certificates, is
requesting the information solely for use in evaluating such Person's investment
in the Certificates and will otherwise keep such information confidential and
(b) in the case of Prospective Investors, a written confirmation executed by the
requesting Person, in form reasonably satisfactory to the Trustee, generally to
the effect that such Person is a prospective purchaser of a Certificate or a
beneficial ownership interest therein, is requesting the information solely for
use in evaluating a possible investment in Certificates and will otherwise keep
such information confidential. All Certificateholders, by the acceptance of
their Certificates, shall be deemed to have agreed to keep such information
confidential. Notwithstanding the foregoing provisions of this Section 5.4(g),
the Trustee shall have no responsibility for the accuracy, completeness or
sufficiency for any purpose of any information so made available or furnished by
it pursuant to subsections (d), (e) and (f) of this Section 5.4.
(h) On each Distribution Date, except as described below, the Trustee shall
deliver or shall cause to be delivered by first class mail to each
Certificateholder, each prospective investor in a Certificate (upon request),
each Certificate Owner (if known), 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 and a Watch List (indicating those
Mortgage Loans that the Master Servicer has determined are in jeopardy of
becoming Specially Serviced Mortgage Loans) provided by the Master Servicer to
the Trustee pursuant to Section 8.14(c) and 8.14(e) on the Master Servicer
Remittance Date. 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 Master Servicer at least
two Business Days prior to the related Master Servicer Remittance Date. Absent
manifest error, (i) none of
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the Master Servicer, the Special Servicer or the Trustee shall be responsible
for the accuracy or completeness of any information supplied to it by a
Mortgagor or third party that is included in any reports, statements, materials
or information prepared or provided by the Master Servicer, the Special Servicer
or the Trustee, as applicable, (ii) the Trustee shall not be responsible for the
accuracy or completeness of any information supplied to it by the Master
Servicer or Special Servicer that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer or Special
Servicer, as applicable, and (iii) the Trustee shall be entitled to conclusively
rely upon the Master 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.
The information contained in the reports in the preceding paragraph of this
Section 5.4(h) shall be made available to the Trustee and the Rating Agencies
electronically by the Master Servicer in the form of the standard CSSA loan file
and CSSA property file, and the Trustee will in lieu of mailing such reports as
described in such preceding paragraph make such reports available electronically
in such form to Certificateholders using the media mutually agreed upon by the
Trustee, each 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 Trustee shall deliver a copy of each Operating Statement Analysis
report and NOI Adjustment Worksheet that it receives from the Master Servicer
and Special Servicer to the Depositor, each Underwriter and each Rating Agency
promptly after its receipt thereof. Upon request, the Trustee shall make such
reports available to the Certificateholders and the Special Servicer. Upon
request, the Trustee shall also make available to any potential investor in the
Certificates any NOI Adjustment Worksheet for a Mortgaged Property or REO
Property in the possession of the Trustee.
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SECTION 5.5. TRUSTEE TAX REPORTS. The Trustee shall perform all reporting
and other tax compliance duties that are the responsibility of each REMIC Pool
and of the grantor trust under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Consistent with this Agreement, the Trustee shall provide (i)
to the Internal Revenue Service or other Persons (including, but not limited to,
any Person that has transferred a Residual Certificate to a Disqualified
Organization or to an agent that has acquired a Residual Certificate on behalf
of a Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to any
Disqualified Organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions. The Master Servicer
shall on a timely basis provide the Trustee with such information concerning the
Mortgage Loans as is necessary for the preparation of the tax or information
returns or receipts of each REMIC Pool as the Trustee may reasonably request
from time to time. The Special Servicer is required to provide to the Master
Servicer all information in its possession with respect to the Specially
Serviced Mortgage Loans and REO Properties in order for the Master Servicer to
comply with its obligations under this Section 5.5. The Trustee shall be
entitled, in the absence of manifest error, to conclusively rely on any such
information provided to it by the Master Servicer or the Special Servicer and
shall have no obligation to verify any such information.
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. DISTRIBUTIONS GENERALLY.
(a) All distributions made with respect to each Class on each Distribution
Date shall be allocated pro rata among the outstanding Certificates in such
Class based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions on or before the related Record Date (which wiring instructions may
be in the form of a standing order applicable to all subsequent Distribution
Dates) or otherwise by check mailed to the address of such Certificateholder as
it appears in the Certificate Register. The final distribution on each
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Expense Loss previously allocated to such Certificate) will
be made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Any
distribution that is to be made with respect to a Certificate in reimbursement
of a Realized Loss or Expense Loss previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
at such address as last appeared in the Certificate Registrar or to any other
address of which the Trustee was subsequently notified in writing.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Participants in accordance with its normal procedures. Each Participant shall be
responsible for disbursing such distribution to the Certificate Owners that it
represents and to each Indirect Participant for which it acts as agent. Each
Participant and Indirect Participant shall be
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responsible for disbursing funds to the Certificate Owners that it represents.
None of the Trustee, the Certificate Registrar, the Depositor, the Master
Servicer or the Special Servicer shall have any responsibility therefor except
as otherwise provided by this Agreement or applicable law.
(c) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates. Distributions in reimbursement of Realized
Losses and Expense Losses previously allocated to a Class of Certificates shall
not constitute distributions of principal and shall not result in a reduction of
the related Class Principal Balance.
SECTION 6.2. REMIC I.
(a) On each Distribution Date, the Trustee shall be deemed to apply the
Available Distribution Amount (excluding any amounts attributable to Prepayment
Premiums) as is attributable to each Mortgage Loan for such date for the
following purposes and in the following order of priority:
(i) to pay interest to REMIC II in respect of each REMIC I Regular
Interest, up to an amount equal to, and pro rata in accordance with, all
Uncertificated Distributable Interest (excluding amounts attributable to
Prepayment Premiums) for each such REMIC I Regular Interest for such
Distribution Date;
(ii) to pay principal to REMIC II in respect of each REMIC I Regular
Interest, up to an amount equal to, and pro rata in accordance with, the
excess, if any, of the Uncertificated Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date,
over the Stated Principal Balance of the related Mortgage Loan (including
without limitation an REO Mortgage Loan or, if applicable, a Qualifying
Substitute Mortgage Loan) that will be outstanding immediately following
such Distribution Date;
(iii) to reimburse REMIC II for any Realized Losses and Expense Losses
previously deemed allocated to the various REMIC I Regular Interests (with
interest), up to an amount equal to, and pro rata in accordance with, the
Loss Reimbursement Amount for each such REMIC I Regular Interest for such
Distribution Date; and
(iv) to the Holders of the Class R-I Certificates that portion, if
any, of the Available Distribution Amount (excluding amounts attributable
to Prepayment Premiums) for such date that has not otherwise been deemed
paid to REMIC II in respect of the REMIC I Regular Interests pursuant to
this Section 6.2(a).
(b) On the Distribution Date occurring in (A) January of each calendar year
that is not a leap year and (B) February of each calendar year, interest
payments constituting the Withheld Amounts that would otherwise be distributable
pursuant to clause (a)(i) above shall be deposited in the Interest Reserve
Account by the Trustee in accordance with Section 5.3.2. On the Distribution
Date in March of each calendar year the Withheld Amounts deposited in the
Interest Reserve Account pursuant to Section 5.3.2 shall be included in the
funds distributable pursuant to clause (a)(i) above
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(c) On each Distribution Date, the Trustee shall be deemed to apply each
Prepayment Premium then on deposit in the Distribution Account and received
during or prior to the related Collection Period, to pay additional interest to
REMIC II in respect of the REMIC I Regular Interest that relates to the Mortgage
Loan (including without limitation an REO Mortgage Loan or, if applicable, a
Replacement Mortgage Loan) as to which such Prepayment Premium was received.
(d) All amounts (other than additional interest in the form of Prepayment
Premiums) deemed paid to REMIC II in respect of the REMIC I Regular Interests
pursuant to this Section 6.2 on any Distribution Date is herein referred to as
the "REMIC II DISTRIBUTION AMOUNT" for such date.
SECTION 6.3. REMIC II.
(a) It is the intention of the parties hereto that the distributions set
forth below result in the Certificate Principal Balances of each Class of REMIC
II Regular Interests and its corresponding Class of Certificates being equal. On
each Distribution Date, the Trustee shall be deemed to apply the REMIC II
Distribution Amount for such date for the following purposes and in the
following order of priority:
(i) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest A-1 and REMIC II Regular Interest A-2, up to an amount
equal to (and pro rata in accordance with) all Uncertificated Distributable
Interest on such REMIC II Regular Interests for such Distribution Date;
(ii) to distributions of principal in respect of first, REMIC II
Regular Interest A-1, and second, REMIC II Regular Interest A-2, in each
case up to an amount equal to the lesser of (1) the then outstanding
Uncertificated Principal Balance of such Class and (2) the remaining
portion, if any, of such REMIC II Distribution Amount;
(iii) to reimburse REMIC III for any Realized Losses and Expense Losses
previously deemed allocated to REMIC II Regular Interest A-1 and REMIC II
Regular Interest A-2 (with interest), up to an amount equal to (and pro
rata in accordance with) the Loss Reimbursement Amount in respect of such
REMIC II Regular Interest for such Distribution Date;
(iv) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest B, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(v) to distributions of principal in respect of REMIC II Regular
Interest B, until the Uncertificated Principal Balance thereof is reduced
to zero;
(vi) to reimburse REMIC III for any Realized Losses and Expense Losses
previously deemed allocated to REMIC II Regular Interest B (with interest),
up to an amount equal to the Loss Reimbursement Amount in respect of such
REMIC II Regular Interest for such Distribution Date;
(vii) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest C, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
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(viii) to distributions of principal in respect of REMIC II Regular
Interest C, until the Uncertificated Principal Balance thereof is reduced
to zero;
(ix) to reimburse REMIC III for any Realized Losses and Expense Losses
previously deemed allocated to REMIC II Regular Interest C (with interest),
up to an amount equal to the Loss Reimbursement Amount in respect of such
REMIC II Regular Interest for such Distribution Date;
(x) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest D, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xi) to distributions of principal in respect of REMIC II Regular
Interest D, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest D (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xiii) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest E, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xiv) to distributions of principal in respect of REMIC II Regular
Interest E, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xv) to reimburse REMIC III for any Realized Losses and Expense Losses
previously deemed allocated to REMIC II Regular Interest E (with interest),
up to an amount equal to the Loss Reimbursement Amount in respect of such
REMIC II Regular Interest for such Distribution Date;
(xvi) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest F, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xvii) to distributions of principal in respect of REMIC II Regular
Interest F, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xviii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest F (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xix) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest G, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xx) to distributions of principal in respect of REMIC II Regular
Interest G, until the Uncertificated Principal Balance thereof is reduced
to zero;
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(xxi) to reimburse REMIC III for any Realized Losses and Expense Losses
previously deemed allocated to REMIC II Regular Interest G (with interest),
up to an amount equal to the Loss Reimbursement Amount in respect of such
REMIC II Regular Interest for such Distribution Date;
(xxii) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest H, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxiii) to distributions of principal in respect of REMIC II Regular
Interest H, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxiv) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest H (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xxv) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest J, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxvi) to distributions of principal in respect of REMIC II Regular
Interest J, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxvii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest J (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xxviii) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest K, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxix) to distributions of principal in respect of REMIC II Regular
Interest K, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxx) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest K (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xxxi) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest L, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxxii) to distributions of principal in respect of REMIC II Regular
Interest L, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxxiii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest L (with
interest), up to an
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amount equal to the Loss Reimbursement Amount in respect of such REMIC II
Regular Interest for such Distribution Date;
(xxxiv) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest M, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxxv) to distributions of principal in respect of REMIC II Regular
Interest M, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxxvi) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest M (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xxxvii) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest N, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxxviii) to distributions of principal in respect of REMIC II Regular
Interest N, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxxix) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest N (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xl) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest O, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xli) to distributions of principal in respect of REMIC II Regular
Interest O, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xlii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest O (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date; and
(xliii) to pay to the Holders of the Class R-II Certificates, the
balance, if any, of the REMIC II Distribution Amount.
(b) On each Distribution Date, the Trustee shall be deemed to apply all
Prepayment Premiums then on deposit in the Distribution Account and received
during or prior to the related Collection Period, to pay additional interest to
REMIC III in respect of the REMIC II Regular Interests.
(c) All amounts (other than additional interest in the form of Prepayment
Premiums) deemed paid to REMIC III in respect of the REMIC II Regular Interests
pursuant to this Section 6.3 on any Distribution Date is herein referred to as
the "REMIC III DISTRIBUTION AMOUNT" for such date.
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SECTION 6.4. REMIC III.
(a) On each Distribution Date, following the deemed payments
to REMIC III in respect of the REMIC II Regular Interests on such date pursuant
to Section 6.3, the Trustee shall withdraw from the Distribution Account the
REMIC III Distribution Amount for such Distribution Date and shall apply such
amount for the following purposes and in the following order of priority:
(i) to pay interest to the Holders of the respective
Classes of Senior Certificates, in an amount equal to, and pro rata in
accordance with, all Distributable Certificate Interest in respect of
each such Class of Certificates for such Distribution Date;
(ii) to pay principal from the Principal
Distribution Amount for such Distribution Date, first to the Holders of
the Class A-1 Certificates and, second to the Holders of the Class A-2
Certificates in each case, up to an amount equal to the lesser of (1)
the then-outstanding Class Principal Balance of such Class and (2) the
remaining portion, if any, of such Principal Distribution Amount;
(iii) to reimburse the Holders of the respective
Classes of Class A Certificates for any Realized Losses and Expense
Losses previously deemed allocated to such Classes of Certificates
(with interest), up to an amount equal to, and pro rata as among such
Classes in accordance with, the respective Loss Reimbursement Amounts
in respect of such Classes of Certificates for such Distribution Date;
and
(iv) to make payments on the Subordinate and Residual
Certificates as provided below;
provided that, on each Distribution Date after the aggregate of the Class
Principal Balances of the Subordinate Certificates has been reduced to zero, and
in any event on the final Distribution Date in connection with a termination of
the Trust described in Article X hereof, the payments of principal to be made
pursuant to clause (ii) above, will be so made to the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, and pro rata as among
such Classes in accordance with, the respective then outstanding Class Principal
Balance of such Certificates for such Distribution Date and without regard to
the Principal Distribution Amounts for such date;
(b) On each Distribution Date, following the foregoing series
of payments on the Senior Certificates, the Trustee shall apply the remaining
portion, if any, of the REMIC III Distribution Amount for such date for the
following purposes and in the following order of priority:
(i) to pay interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(ii) if the Class Principal Balances of the Class A
Certificates have been reduced to zero, to pay principal to the Holders
of the Class B Certificates, up to an amount equal to the lesser of (A)
the then-outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for
such Distribution Date;
(iii) to reimburse the Holders of the Class B
Certificates for Realized Losses and Expense Losses, if any, previously
deemed allocated to such Class of Certificates (with
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interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such Class of Certificates for such Distribution Date;
(iv) to pay interest to the Holders of the Class C
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(v) if the Class Principal Balances of the Class A
and Class B Certificates have been reduced to zero, to pay principal to
the Holders of the Class C Certificates, up to an amount equal to the
lesser of (A) the then-outstanding Class Principal Balance of such
Class of Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(vi) to reimburse the Holders of the Class C
Certificates for any Realized Losses and Expenses Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(vii) to pay interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(viii) if the Class Principal Balances of the Class
A, Class B and Class C Certificates have been reduced to zero, to pay
principal to the Holders of the Class D Certificates, up to an amount
equal to the lesser of (A) the then-outstanding Class Principal Balance
of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(ix) to reimburse the Holders of the Class D
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(x) to pay interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xi) if the Class Principal Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to zero, to
pay principal to the Holders of the Class E Certificates, up to an
amount equal to the lesser of (A) the then-outstanding Class Principal
Balance of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(xii) to reimburse the Holders of the Class E
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
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(xiii) to pay interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xiv) if the Class Principal Balances of the Class
A, Class B, Class C, Class D and Class E Certificates have been reduced
to zero, to pay principal to the Holders of the Class F Certificates,
up to an amount equal to the lesser of (A) the then-outstanding Class
Principal Balance of such Class of Certificates and (B) the remaining
Principal Distribution Amount for such Distribution Date;
(xv) to reimburse the Holders of the Class F
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xvi) to pay interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xvii) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E and Class F Certificates have
been reduced to zero, to pay principal to the Holders of the Class G
Certificates, up to an amount equal to the lesser of (A) the
then-outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xviii) to reimburse the Holders of the Class G
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xix) to pay interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xx) if the Class Principal Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates
have been reduced to zero, to pay principal to the Holders of the Class
H Certificates, up to an amount equal to the lesser of (A) the
then-outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xxi) to reimburse the Holders of the Class H
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xxii) to pay interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
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(xxiii) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to pay principal to the Holders
of the Class J Certificates, up to an amount equal to the lesser of (A)
the then-outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for
such Distribution Date;
(xxiv) to reimburse the Holders of the Class J
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xxv) to pay interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificate for such Distribution
Date;
(xxvi) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H and
Class J Certificates have been reduced to zero, to pay principal to the
Holders of the Class K Certificates, up to an amount equal to the
lesser of (A) the then-outstanding Class Principal Balance of such
Class of Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(xxvii) to reimburse the Holders of the Class K
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xxviii) to pay interest to the Holders of the Class
L Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificate for such Distribution
Date;
(xxix) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J and Class K Certificates have been reduced to zero, to pay principal
to the Holders of the Class L Certificates, up to an amount equal to
the lesser of (A) the then-outstanding Class Principal Balance of such
Class of Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(xxx) to reimburse the Holders of the Class L
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date; and
(xxxi) to pay interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificate for such Distribution
Date;
(xxxii) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K and Class L Certificates have been reduced to zero, to pay
principal to the Holders of the Class M Certificates, up to an amount
equal to the
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lesser of (A) the then-outstanding Class Principal Balance of such
Class of Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(xxxiii) to reimburse the Holders of the Class M
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xxxiv) to pay interest to the Holders of the Class
N Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificate for such Distribution
Date;
(xxxv) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L and Class M Certificates have been reduced to zero,
to pay principal to the Holders of the Class N Certificates, up to an
amount equal to the lesser of (A) the then-outstanding Class Principal
Balance of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(xxxvi) to reimburse the Holders of the Class N
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xxxvii) to pay interest to the Holders of the Class
O Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificate for such Distribution
Date;
(xxxviii) if the Class Principal Balances of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M and Class N Certificates have been
reduced to zero, to pay principal to the Holders of the Class O
Certificates, up to an amount equal to the lesser of (A) the
then-outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xxxix) to reimburse the Holders of the Class O
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xl) to pay to the Holders of the Class R-III
Certificates the balance, if any, of the REMIC III Distribution Amount
for such Distribution Date.
(c) On each Distribution Date, the Trustee shall withdraw any
amounts then on deposit in the Distribution Account that represent Prepayment
Premiums collected in respect of Mortgage Loans during or prior to the related
Collection Period and shall distribute such amounts, in each case, subject to
available funds, as additional interest, to the Holders of the respective
Classes of Principal Balance Certificates (other than the Class G, H, J, K, L,
M, N and O Certificates) then entitled to distributions of principal from the
Principal Distribution Amount for such Distribution Date an aggregate amount
(allocable among such Classes, if more than one, as described below) equal to
the lesser of
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(i) such Prepayment Premium and (ii) such Prepayment Premium multiplied by a
fraction, the numerator of which is equal to the excess, if any, of the
Pass-Through Rate applicable to the most senior of such Classes of Certificates
then outstanding (or, in the case of the Class A Certificates, the one with the
earlier payment priority), over the relevant Discount Rate (as defined below),
and the denominator of which is equal to the excess, if any, of the Mortgage
Rate for the prepaid Mortgage Loan, over the relevant Discount Rate. If there is
more than one Class of Principal Balance Certificates entitled to distributions
of principal from the Principal Distribution Amount for such Distribution Date,
the aggregate amount described in the preceding sentence shall be allocated
among such Classes on a pro rata basis in accordance with the relative amounts
of such distributions of principal. Any portion of such Prepayment Premium that
is not so distributed to the Holders of such Principal Balance Certificates will
be distributed to the Holders of the Class X Certificates.
For purposes of the foregoing, the "DISCOUNT RATE" is the rate
which, when compounded monthly, is equivalent to the Treasury Rate when
compounded semi-annually. The "TREASURY RATE" is the yield calculated by the
linear interpolation of the yields, as reported in Federal Reserve Statistical
Release H.15--Selected Interest Rates under the heading "U.S. government
securities/Treasury constant maturities" for the week ending prior to the date
of the relevant principal prepayment, of U.S. Treasury constant maturities with
a maturity date (one longer and one shorter) most nearly approximating the
maturity date (or the Anticipated Repayment Date, if applicable) of the Mortgage
Loan prepaid. If Release H.15 is no longer published, the Trustee shall select a
comparable publication to determine the Treasury Rate.
(d) All of the foregoing distributions to be made from the
Distribution Account on any Distribution Date with respect to the REMIC III
Certificates shall be deemed made from the payments deemed made to REMIC III in
respect of the REMIC II Regular Interests on such Distribution Date pursuant to
Section 6.3.
SECTION 6.4.1. GRANTOR TRUST.
(a) On each Distribution Date, the Trustee shall withdraw from
the Excess Interest Distribution Account the amount on deposit therein, and
shall pay such amount to the Holders of the Class O Certificates in respect of
their beneficial ownership interest in the assets of the grantor trust, pro rata
in accordance with their respective Percentage Interests. Such distributions
shall be made in addition to any amounts distributable to such Holders pursuant
to Section 6.4 hereof in respect of their interests in the REMIC regular
interest evidenced by such Class O Certificates, and without regard to whether
the REMIC regular interest component of the Class O Certificates is then
outstanding.
SECTION 6.5. ALLOCATION OF REALIZED LOSSES AND EXPENSE LOSSES.
(a) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 6.2, the Uncertificated Principal Balance of each REMIC I Regular
Interest (after taking account of such deemed distributions) shall be reduced to
equal the Stated Principal Balance of the related Mortgage Loan (including
without limitation an REO Mortgage Loan or, if applicable, a Replacement
Mortgage Loan) that will be outstanding immediately following such Distribution
Date. Such reductions shall be deemed to be an allocation of Realized Losses and
Expense Losses.
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(b) On each Distribution Date, following the payments deemed
to be made to REMIC III in respect of the REMIC II Regular Interests on such
date pursuant to Section 6.3, the Trustee shall also determine the amount, if
any, by which (i) the then-aggregate Uncertificated Principal Balance of REMIC
II Regular Interests A, B, C, D, E, F, G, H, J, K, L, M, N and O exceeds (ii)
the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the respective Uncertificated Principal Balances of such REMIC II
Regular Interests shall be reduced sequentially, in reverse alphabetical order
of letter designation, in each case, until the first to occur of such excess
being reduced to zero or the Uncertificated Principal Balance of the particular
REMIC II Regular Interest being reduced to zero. Such reductions in the
Uncertificated Principal Balances of such REMIC II Regular Interests shall be
deemed to be allocations of Realized Losses and Expense Losses.
(c) On each Distribution Date, following the distributions to
be made to the Certificateholders on such date pursuant to Section 6.4, the
Trustee shall determine the amount, if any, by which (i) the then-aggregate
Certificate Principal Balance of the Principal Balance Certificates, exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class O, Class N, Class M, Class
L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class C and
Class B Certificates shall be reduced sequentially, in that order, in each case,
until the first to occur of such excess being reduced to zero or the related
Class Principal Balance being reduced to zero. If, after the foregoing
reductions, the amount described in clause (i) of the second preceding sentence
still exceeds the amount described in clause (ii) of the second preceding
sentence, then the respective Class Principal Balances of the Class A-1 and
Class A-2 Certificates shall be reduced, pro rata in accordance with the
relative sizes of the then-outstanding Class Principal Balances of such Classes
of Certificates, until the first to occur of such excess being reduced to zero
or each such Class Principal Balance being reduced to zero. Such reductions in
the Class Principal Balances of the respective Classes of Principal Certificates
shall be deemed to be allocations of Realized Losses and Expense Losses.
SECTION 6.6. APPRAISAL REDUCTIONS.
Not later than the earliest of the dates set forth in the
definition of "Appraisal Event" in respect of any Mortgage Loan, or within such
longer period as the Special Servicer is diligently and in good faith proceeding
to obtain an appraisal, the Special Servicer shall obtain (A) an Appraisal of
the related Mortgaged Property or REO Property, as applicable, if the Stated
Principal Balance of such Required Appraisal Loan exceeds $1,000,000 or (B) at
the option of the Special Servicer, if the Stated Principal Balance of such
Required Appraisal Loan is less than or equal to $1,000,000, either an internal
valuation prepared by the Special Servicer or an Appraisal; provided that if the
Special Servicer had completed or obtained an Appraisal or internal valuation
within the immediately preceding 12 months, the Special Servicer may rely on
such Appraisal or internal valuation and shall have no duty to prepare a new
Appraisal or internal valuation, unless such reliance would not be in accordance
with the Servicing Standard. Such Appraisal or internal valuation shall be
updated at least annually to the extent such Mortgage Loan remains a Required
Appraisal Loan. The cost of any such Appraisal if not an internal valuation
performed by the Special Servicer shall be an expense of the Trust and may be
paid from REO Income, treated as an Additional Trust Expense or advanced by the
Special Servicer (or, at the direction of the Special Servicer, by the Master
Servicer) in which event it shall be treated as a Servicing Advance, subject to
Section 4.4 hereof. The Master Servicer, based on the Appraisal or internal
valuation provided to it by the Special Servicer, shall calculate any Appraisal
Reduction. The Master Servicer shall calculate or recalculate the Appraisal
Reduction for any Mortgage Loan based on updated Appraisals or internal
valuations provided to it from time to time by the Special Servicer. Any
Appraisal or internal
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valuation obtained by the Special Servicer pursuant to this Section 6.6 shall be
delivered by the Special Servicer to the Master Servicer, and the Master
Servicer shall deliver such Appraisal or internal valuation to the Trustee
within 15 days of receipt by the Master Servicer of such Appraisal or internal
valuation from the Special Servicer and the Trustee shall deliver such Appraisal
or internal valuation to the Holders of the Privately Offered Certificates
within 15 days of receipt by the Trustee of such Appraisal or internal valuation
from the Master Servicer.
SECTION 6.7. COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement to the contrary, the
Trustee shall comply with all federal withholding requirements with respect to
payments to Certificateholders of interest, original issue discount, or other
amounts that the Trustee reasonably believes are subject to such requirements
under the Code. The consent of Certificateholders shall not be required for any
such withholding. In the event the Trustee withholds any amount from payments
made to any Certificateholder pursuant to federal withholding requirements, the
Trustee shall indicate to such Certificateholder the amount withheld.
ARTICLE VII.
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 7.1. DUTIES OF TRUSTEE AND THE FISCAL AGENT.
(a) The Fiscal Agent and, prior to the occurrence of an Event
of Default and after the curing or waiver of all Events of Default that may have
occurred, the Trustee undertake to perform only those duties as are specifically
set forth in this Agreement and no implied covenants or obligations shall be
read into this Agreement against the Trustee or the Fiscal Agent. Any permissive
right of the Trustee or Fiscal Agent, as applicable, provided for in this
Agreement shall not be construed as a duty of the Trustee or the Fiscal Agent.
Subject to Section 7.1(c)(vi), if an Event of Default occurs and is continuing,
then, the Trustee shall exercise such of the rights and powers vested in it by
this Agreement and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they on their face conform to the requirements of this
Agreement (to the extent such requirements are set forth herein); provided that
the Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or any other Person to the Trustee
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee shall take such
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) No provision of this Agreement shall be construed to
relieve the Trustee or the Fiscal Agent or any of their respective directors,
officers, employees, agents or Controlling Persons from liability for their own
negligent action, their own negligent failure to act or their own willful
misconduct; provided that:
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(i) Neither the Trustee nor the Fiscal Agent nor any
of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any
action taken, suffered or omitted to be taken by it (A) in its
reasonable business judgment in accordance with this Agreement or (B)
at the direction of Holders of Certificates entitled to not less than a
majority of the Voting Rights;
(ii) No provision of this Agreement shall require
either the Trustee or the Fiscal Agent to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it;
(iii) None of the Trustee, the Fiscal Agent or any
of their respective directors, officers, employees, agents or
Controlling Persons shall be responsible for any act or omission of the
Master Servicer, the Special Servicer, the Depositor or any Seller,
including, without limitation, actions taken pursuant to this
Agreement, except to the extent the Trustee or Fiscal Agent is acting
as Master Servicer or Special Servicer;
(iv) The execution by the Trustee of any forms or
plans of liquidation in connection with the REMIC Pools shall not
constitute a representation by the Trustee or the Fiscal Agent as to
the adequacy of such form or plan of liquidation;
(v) The Trustee and the Fiscal Agent shall not be
under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee or Fiscal Agent, as
applicable, in accordance with this Agreement. In such event, all legal
expense and costs of such action shall be expenses and costs of the
Trust and the Trustee and the Fiscal Agent shall be entitled to be
reimbursed therefor from the Collection Account pursuant to Section
5.2(b); and
(vi) Neither the Trustee nor the Fiscal Agent shall
be charged with knowledge of any failure by the Master Servicer or the
Special Servicer to comply with their respective obligations under this
Agreement or any act, failure, or breach of any Person upon the
occurrence of which the Trustee may be required to act, except to the
extent the Trustee or Fiscal Agent is acting as Master Servicer or
Special Servicer, or unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure. The Trustee shall be deemed
to have actual knowledge of the failure of the Master Servicer or
Special Servicer to deliver to the Trustee any report, certificate or
other document required to be delivered to the Trustee but not so
delivered when required pursuant to this Agreement.
SECTION 7.2. CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL
AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) The Trustee or the Fiscal Agent may request, and
may rely and shall be protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
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(ii) The Trustee or the Fiscal Agent may consult
with counsel and the advice of such counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Fiscal Agent nor
any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any action taken,
suffered or omitted by the Trustee or the Fiscal Agent in its
reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(iv) The Trustee and the Fiscal Agent (in their
respective capacities as such) shall be under no obligation to exercise
any of the powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or relating hereto or make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document (provided the
same appears regular on its face), unless requested in writing to do so
by Holders of Certificates entitled to at least 25% of the Voting
Rights; provided that, if the payment within a reasonable time to the
Trustee or the Fiscal Agent of the costs, expenses or liabilities
likely to be incurred by it in connection with the foregoing is, in the
opinion of the Trustee or the Fiscal Agent not reasonably assured to
the Trustee or the Fiscal Agent by the security afforded to it by the
terms of this Agreement, the Trustee or the Fiscal Agent may require
reasonable indemnity against such expense or liability or payment of
such estimated expenses as a condition to proceeding. The Trustee's and
the Fiscal Agent's reasonable expenses shall be paid by the
Certificateholders making such request;
(v) The Trustee and the Fiscal Agent may execute any
of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys, which agents or
attorneys shall have any or all of the rights, powers, duties and
obligations of the Trustee or the Fiscal Agent conferred on them by
such appointment; provided that the Trustee shall continue to be
responsible for its duties and obligations hereunder and shall not be
liable for the actions or omissions of the Master Servicer, the Special
Servicer or the Depositor;
(vi) The Trustee and the Fiscal Agent shall in no
event be required to obtain a deficiency judgment against a Mortgagor;
(vii) Neither the Trustee nor the Fiscal Agent shall
be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder (unless
otherwise expressly required herein to do so) if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) Neither the Trustee nor the Fiscal Agent
shall be liable for any loss on any investment of funds pursuant to
this Agreement; provided, however, that this provision shall not
operate to forgive the Trustee or Fiscal Agent, in their respective
individual capacities, for a liability that either of them may have for
any investment loss and incurred on such investment; and
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(ix) unless otherwise specifically required by law,
the Trustee and the Fiscal Agent shall not be required to post any
surety or bond of any kind in connection with the execution or
performance of its duties hereunder.
(b) Following the Closing Date, the Trustee shall not accept
any contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
the proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust, its
assets, any REMIC Pool or transactions including, without limitation, (A)
"prohibited transaction" taxes as defined in Section 860F of the Code, if, when
and as the same shall be due and payable, (B) any tax on contributions to a
REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any
tax on "net income from foreclosure property" as defined in Section 860G(c) of
the Code, but only if such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Trustee.
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SECTION 7.3. TRUSTEE AND FISCAL AGENT NOT LIABLE FOR
CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee and the Fiscal Agent
make no representations as to the validity or sufficiency of this Agreement
(other than the certificate of authentication on the Certificates) or of any
Mortgage Loan, Assignment of Mortgage or related document. The Trustee and the
Fiscal Agent shall not be accountable for the use or application by the
Depositor or the Master Servicer or the Special Servicer of any of the
Certificates or any of the proceeds of such Certificates, or for the use or
application by the Depositor or the Master Servicer or the Special Servicer of
funds paid in consideration of the assignment of the Mortgage Loans to the Trust
or deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates or any account maintained pursuant
to this Agreement or for investment of any such amounts. Neither the Trustee nor
the Fiscal Agent shall at any time have any responsibility or liability for or
with respect to the legality, validity or enforceability of the Mortgages or the
Mortgage Loans, or the perfection and priority of the Mortgages or, except as
provided in Section 2.1(c), the maintenance of any such perfection and priority,
or for or with respect to the efficacy of the Trust or its ability to generate
the payments to be distributed to Certificateholders under this Agreement,
including, without limitation, the existence, condition and ownership of any
Mortgaged Property; the existence and enforceability of any hazard insurance
thereon; the validity of the assignment of the Mortgage Loans to the Trust or of
any intervening assignment; the completeness of the Mortgage Loans; the
performance or enforcement of the Mortgage Loans (other than if the Trustee
shall assume the duties of the Master Servicer or the Special Servicer); any
investment of monies by the Master Servicer or the Special Servicer or any loss
resulting therefrom; the failure of the Master Servicer or any Sub-Servicer or
the Special Servicer to act or perform any duties required of it on behalf of
the Trustee hereunder; or any action by the Trustee taken at the instruction of
the Master Servicer or the Special Servicer.
SECTION 7.4. TRUSTEE AND THE FISCAL AGENT MAY OWN
CERTIFICATES.
The Trustee and the Fiscal Agent and any agent of the Trustee
and the Fiscal Agent in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it were
not the Trustee and the Fiscal Agent or such agent.
SECTION 7.5. ELIGIBILITY REQUIREMENTS FOR TRUSTEE AND FISCAL
AGENT.
The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, authorized to exercise corporate trust
powers, having a combined capital and surplus of not less than $100,000,000 and
subject to supervision or examination by federal or state authority, and (iii)
an institution whose long-term senior unsecured debt is, for so long as a Fiscal
Agent is acting hereunder, rated not less than "BBB" by DCR and Baa2 by Moody's;
provided that either the Trustee or the Fiscal Agent shall at all times be an
institution whose long-term senior unsecured debt is rated not less than "AA" by
DCR and Aa2 by Moody's or otherwise acceptable to the Rating Agencies. If such
corporation, national bank or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation, national bank or
national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee or Fiscal Agent shall cease to be eligible in
accordance with provisions of this Section, the Trustee or Fiscal Agent shall
resign immediately in the manner and with the effect specified in Section 7.6.
SECTION 7.6. RESIGNATION AND REMOVAL OF TRUSTEE OR FISCAL
AGENT.
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(a) The Trustee or the Fiscal Agent may at any time resign and
be discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer and the Rating Agencies; provided that such
resignation shall not be effective until its successor shall have accepted the
appointment and Rating Agency Confirmation shall have been obtained with respect
to such appointment. Upon receiving such notice of resignation, the Depositor
will promptly appoint a successor trustee or fiscal agent, as the case may be,
except in the case of the initial Trustee or Fiscal Agent, in which case both
shall be so replaced concurrently, by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee or the Fiscal Agent, one
copy to the successor trustee and one copy to each of the Master Servicer and
the Rating Agencies. If no successor trustee or fiscal agent shall have been so
appointed and shall have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee or the Fiscal Agent may
petition any court of competent jurisdiction for the appointment of a successor
trustee or fiscal agent.
(b) If at any time (i) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located; provided,
however, that, if the Trustee agrees to indemnify the Trust for such taxes, it
shall not be removed pursuant to this clause (iii), or (iv) the continuation of
the Trustee as such would result in a downgrade, qualification (if applicable)
or withdrawal of the rating by any one or more of the Rating Agencies of any
Class of Certificates, then the Depositor may remove such Trustee and appoint a
successor trustee by written instrument, one copy of which instrument shall be
delivered to the Trustee so removed, one copy to the successor trustee and one
copy to each of the Master Servicer and the Rating Agencies. In the case of
removal under clauses (i)-(iv) above, the Trustee shall bear all such costs of
such transfer. Such succession shall take effect after a successor trustee has
been appointed. In the case of the removal of the initial Trustee, the Depositor
shall also remove the Fiscal Agent. In this case, the procedures and liability
for costs of such removal shall be the same as they are stated in subsection (c)
with respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 7.5 and shall fail to
resign after written request therefor by the Depositor, or (ii) a Fiscal Agent
Termination Event has occurred, then the Depositor shall send a written notice
of termination to the Fiscal Agent (which notice shall specify the reason for
such termination) and remove such Fiscal Agent and appoint a successor Fiscal
Agent by written instrument, one copy of which instrument shall be delivered to
the Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one
copy to each of the Trustee, the Master Servicer and the Rating Agencies. In all
such cases, the Fiscal Agent shall bear all costs of transfer to a successor
Fiscal Agent, such succession only to take effect after a successor Fiscal Agent
has been appointed. In the case of the initial Fiscal Agent, the Depositor may,
but is not required to, also remove the Trustee. In this case, the procedures
and liability for costs of such removal shall be the same as they are stated in
subsection (b) with respect to the Trustee.
(d) The Holders of Certificates entitled to at least 51% of
the Voting Rights may without cause upon 30 days' written notice to the Trustee
or the Fiscal Agent and to the Depositor remove the Trustee or the Fiscal Agent
by such written instrument, signed by such Holders or their attorney-in-fact
duly authorized, one copy of which instrument shall be delivered to the
Depositor and one copy to the Trustee or the Fiscal Agent so removed; the
Depositor shall thereupon use its best efforts
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to appoint a successor Trustee or Fiscal Agent in accordance with this Section.
The Certificateholders effecting such transfer shall be responsible for the
reasonable out-of-pocket costs of such removal, including fees and any related
expenses, such as those incurred in transferring the Mortgage Files to the
successor Trustee.
(e) Any resignation or removal of the Trustee or the Fiscal
Agent and appointment of a successor trustee or fiscal agent meeting the
eligibility requirements of Section 7.5 pursuant to any of the provisions of
this Section shall become effective upon acceptance of appointment by the
successor trustee and fiscal agent as provided in Section 7.7. Upon any
succession of the Trustee or the Fiscal Agent under this Agreement, the
predecessor Trustee or Fiscal Agent shall be entitled to the payment of
compensation and reimbursement agreed to under this Agreement for services
rendered and expenses incurred (including without limitation unreimbursed
Advances made thereby, with any related unpaid Advance Interest accrued on such
Advances) at such times and from such sources as if the predecessor Trustee or
Fiscal Agent had not resigned or been removed. The Trustee and the Fiscal Agent
shall not be liable for any action or omission of any successor Trustee or
Fiscal Agent.
SECTION 7.7. SUCCESSOR TRUSTEE OR FISCAL AGENT.
(a) Any successor Trustee or Fiscal Agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
or Fiscal Agent shall become effective and such successor Trustee or 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 like effect as if originally named as Trustee or Fiscal Agent
herein. The predecessor Trustee shall deliver to the successor Trustee all
Mortgage Files and documents and statements related to the Mortgage Files held
by it hereunder, and shall duly assign, transfer, deliver and pay over to the
successor Trustee the entire Trust, together with all instruments of transfer
and assignment or other documents properly executed necessary to effect such
transfer and such records or copies thereof maintained by the predecessor
Trustee or Fiscal Agent in the administration hereof as may be reasonably
requested by the successor Trustee or Fiscal Agent and shall thereupon be
discharged from all duties and responsibilities under this Agreement. In
addition, the Depositor and the predecessor Trustee or the Fiscal Agent shall
execute and deliver such other instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor Trustee or the successor Fiscal Agent all such rights, powers, duties
and obligations. Anything herein to the contrary notwithstanding, in no event
shall the combined fees payable to a successor Trustee and successor Fiscal
Agent exceed the Trustee Fee.
(b) No successor Trustee shall accept appointment as provided
in this Section unless at the time of such appointment such successor Trustee
shall be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or
Fiscal Agent as provided in this Section, the successor Trustee or Fiscal Agent
shall mail notice of the succession of such Trustee or Fiscal Agent hereunder to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to the Rating Agencies (evidence of such mailing to be provided to
the Depositor and the Master Servicer). The expenses of such mailing shall be
borne by the successor Trustee or Fiscal Agent.
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SECTION 7.8. MERGER OR CONSOLIDATION OF TRUSTEE. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Persons succeeding
to the business of such Trustee or Fiscal Agent, shall be the successor of such
Trustee or Fiscal Agent hereunder, provided that such Person shall be eligible
under the provisions of Section 7.5, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 7.9. APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time,
the Trustee, the Depositor or, in the case of the Trust, the Certificateholders
entitled to more than 50% of the Voting Rights shall each have the power from
time to time to appoint one or more Persons to act either as co-trustees jointly
with the Trustee or as separate trustees, or as custodians, for the purpose of
holding title to, foreclosing or otherwise taking action with respect to any
Mortgage Loan outside the state where the Trustee has its principal place of
business where such separate trustee or co-trustee is necessary or advisable (or
the Trustee is advised by the Master Servicer or Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees,
co-trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further that the Trustee shall not be relieved of
liability for the actions taken or omissions made, without the consent of the
Trustee, of any co-trustee or separate trustee appointed by it and shall not be
liable for the actions of any co-trustee or separate trustee not appointed by
it.
(b) Every separate trustee, co-trustee, and custodian shall,
to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights
conferred upon the Trustee in respect of the receipt, custody and
payment of moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such
separate trustee, co-trustee, or custodian jointly, except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed (whether as Trustee hereunder or as
successor to the Master Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations, including the holding of
title to the Trust or any portion thereof in any such jurisdiction,
shall be exercised and performed by such separate trustee, co-trustee,
or custodian;
(iii) no trustee or custodian hereunder shall be
personally liable by reason of any act or omission of any other trustee
or custodian hereunder; and
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(iv) the Trustee or, in the case of the Trust, the
Certificateholders entitled to more than 50% of the Voting Rights
outstanding may at any time accept the resignation of or remove any
separate trustee, co-trustee or custodian, so appointed by it or them,
if such resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any
time, constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(f) The Trustee agrees to instruct the co-trustees, if any, to
the extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed pursuant to this Section
7.9 and shall be reimbursed in accordance with the standards, specified in
Section 7.12 hereof.
(h) Subject to the consent of the Depositor, which consent
shall not be unreasonably withheld, the Trustee may appoint at any time a
custodian to hold some or all of the Mortgage Files. The appointment of a
custodian shall not relieve the Trustee from any duties, liabilities or
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of such custodian. Upon the appointment of a Custodian, the Trustee
and the Custodian shall enter into a custodial agreement.
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SECTION 7.10. AUTHENTICATING AGENTS.
(a) The Trustee may appoint one or more Authenticating Agents
which shall be authorized to act on behalf of the Trustee in executing and
authenticating Certificates. Wherever reference is made in this Agreement to the
execution and authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
execution and authentication on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
Depositor and must be a corporation organized and doing business under the laws
of the United States of America or of any state and having a principal office
and place of business in the Borough of Manhattan, the City and State of New
York or in the State of Illinois, having a combined capital and surplus of at
least $50,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities. The Trustee
initially shall be Authenticating Agent hereunder. No such appointment shall
relieve the Trustee of liability or responsibility for the duties to be carried
out by the Authenticating Agent.
(b) Any Person into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving
at least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of Section 7.10(a),
the Trustee may appoint a successor Authenticating Agent, shall give written
notice of such appointment to the Depositor and shall mail notice of such
appointment to all Holders of Certificates. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. No such
Authenticating Agent shall be appointed unless eligible under the provisions of
Section 7.10(a). No Authenticating Agent shall have responsibility or liability
for any action taken by it as such at the direction of the Trustee.
SECTION 7.11. INDEMNIFICATION.
(a) The Trustee and each of its directors, officers,
employees, agents and Controlling Persons shall be entitled to indemnification
from the Trust for any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action not expressly required
hereby to be borne by the Trustee and incurred without negligence or willful
misconduct on their part, arising out of, or in connection with this Agreement,
the Certificates and the acceptance or administration of the trusts created
hereunder (including, without limitation, any unanticipated loss, liability or
expense incurred in connection with any action or inaction of the Master
Servicer, the Special Servicer or the Depositor hereunder, except to the extent
that the Trustee is acting as Master Servicer or Special Servicer), including
the reasonable costs and expenses of defending themselves against any claim in
connection with the exercise or performance of any of their powers or duties
hereunder and the Trustee and each of
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its directors, officers, employees, agents and Controlling Persons shall be
entitled to indemnification from the Trust for any unanticipated loss, liability
or expense incurred in connection with the provision by the Trustee of any
report required to be provided by the Trustee pursuant to this Agreement;
provided that:
(i) with respect to any such claim, the Trustee
shall have given the Depositor and the Holders of the Certificates
written notice thereof promptly after the Trustee shall have knowledge
thereof; provided, however, that failure to give such notice to the
Depositor and the Holders of Certificates shall not affect the
Trustee's rights to indemnification herein unless the Master Servicer's
defense of such claim is materially prejudiced thereby;
(ii) while maintaining control over its own defense,
the Trustee shall cooperate and consult fully with the Master Servicer
in preparing such defense; and
(iii) notwithstanding anything to the contrary in
this Section 7.11, the Trust shall not be liable for settlement of any
such claim by the Trustee entered into without the prior consent of the
Master Servicer, which consent shall not be unreasonably withheld.
(b) The Trustee agrees to indemnify the Special Servicer and
the Master Servicer, and any director, officer, employee or agent thereof, and
hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses that either of them may sustain arising from or
as a result of the willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder or by reason of negligent
disregard of the Trustee's obligations and duties hereunder, including a breach
of such obligations a substantial motive of which is to obtain an economic
advantage from being released from such obligations (unless such claim, loss,
penalty, fine, forfeiture, legal fees and related costs results from the willful
misfeasance, bad faith or negligence of such indemnified party), and if in any
such situation the Trustee is replaced, the parties hereto agree that the amount
of such claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor Trustee. Each of
the Special Servicer and the Master Servicer shall immediately notify the
Trustee if a claim is made by a third party with respect to this Agreement, the
Certificates or any asset of the Trust Fund entitling the Special Servicer or
the Master Servicer to indemnification hereunder, whereupon the Trustee shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Special Servicer and the Master Servicer and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree that may be entered against it or them in respect of such
claim. Any failure to so notify the Trustee shall not affect any rights the
Special Servicer or the Master Servicer may have to indemnification under this
Agreement or otherwise, unless the Trustee's defense of such claim is materially
prejudiced thereby and the Trustee delivers a certification explaining the
prejudice. The indemnification provided herein shall survive the termination of
this Agreement and the resignation or termination of the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent.
The provisions of this Section 7.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee.
SECTION 7.12. FEES AND EXPENSES OF TRUSTEE AND FISCAL AGENT.
Monthly, the Trustee shall be entitled to receive the Trustee
Fee (which shall not be limited by any provision of law with respect to the
compensation of a trustee of an express trust), for all
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services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee. On or before the Master Servicer Remittance Date in each month
(commencing in April 1999), the Master Servicer shall, pursuant to Section
5.2(a), remit to the Trustee for deposit in the Distribution Account that
portion of funds then on deposit in the Collection Account that are allocable to
cover the Trustee Fees, and the Trustee shall be entitled to withdraw such
portion from the Distribution Account to pay itself its unpaid Trustee Fees. The
Trustee and the Fiscal Agent shall also be entitled to recover from the Trust
all reasonable unanticipated expenses and disbursements incurred or made by the
Trustee and the Fiscal Agent in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the reasonable expenses and
disbursements of its outside counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee and Fiscal Agent hereunder, and except any such expense,
disbursement or advance as may arise from its negligence or bad faith or which
is the responsibility of the Holders of the Certificates hereunder. The
provisions of this Section 7.12 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and Fiscal Agent.
SECTION 7.13. COLLECTION OF MONEYS. Except as otherwise
expressly provided in this Agreement, the Trustee may demand payment or delivery
of, and shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold all
such money and property received by it as part of the Trust and shall distribute
it as provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
SECTION 7.14. NOTIFICATION TO HOLDERS. Upon termination of the
Master Servicer or appointment of a successor to the Master Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies and the Certificateholders at their respective addresses appearing on
the Certificate Register.
SECTION 7.15. REPRESENTATIONS AND WARRANTIES OF TRUSTEE AND
FISCAL AGENT.
(a) The Trustee hereby represents and warrants as of the
Closing Date that:
(i) The Trustee is a national banking association,
duly organized, validly existing and in good standing under the laws
governing its creation and existence and has full corporate power and
authority to own its property, to carry on its business as presently
conducted, and to enter into and perform its obligations under this
Agreement;
(ii) The execution and delivery by the Trustee of
this Agreement have been duly authorized by all necessary corporate
action on the part of the Trustee; neither the execution and delivery
of this Agreement, nor the consummation of the transactions
contemplated in this Agreement, nor compliance with the provisions of
this Agreement, will conflict with or result in a breach of, or
constitute a default under, (A) any of the provisions of any law,
governmental rule, regulation, judgment, decrees or order binding on
the Trustee or its properties that would materially and adversely
affect the Trustee's ability to perform its obligations under this
Agreement, (B) the organizational documents of the Trustee, or (C) the
terms of any material agreement or instrument to which the Trustee is a
party or by which it is bound; the Trustee is
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not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely
affect its performance under this Agreement;
(iii) The execution, delivery and performance by the
Trustee of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to or the registration
with any state, federal or other governmental authority or agency,
except such as has been or will be obtained, given, effected or taken
in order for the Trustee to perform its obligations under this
Agreement;
(iv) This Agreement has been duly executed and
delivered by the Trustee and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding
obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, subject, as to enforcement of remedies, (A)
to applicable bankruptcy, reorganization, insolvency, moratorium and
other similar laws affecting creditors' rights generally as from time
to time in effect, (B) to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law) and (C) to public policy considerations underlying the
securities laws to the extent that such considerations limit the
enforceability of the provisions of this Agreement that purport to
provide for indemnification for securities law violations; and
(v) No litigation is pending or, to the best of the
Trustee's knowledge, threatened, against the Trustee that, either in
one instance or in the aggregate, would draw into question the validity
of this Agreement, or the outcome of which could reasonably be expected
to materially and adversely affect the execution, delivery and
performance by, or the enforceability against, the Trustee of this
Agreement or the ability of the Trustee to perform under the terms of
this Agreement.
(vi) The Trustee represents that it will use
reasonable commercial efforts to cure (by August 31, 1999) any
deficiencies with regard to the manipulation or calculation of dates
beyond December 31, 1999 in the internally maintained computer software
systems used by the Trustee in the conduct of its trust business which
would materially and adversely affect its ability to perform its
obligations under this Agreement. The Trustee further represents that
it will use reasonable commercial efforts to obtain reasonable
assurances from each third party vendor of licensed computer software
systems used by the Trustee in the conduct of its trust business that
such vendors shall use reasonable commercial efforts to cure any
deficiencies with regard to the manipulation or calculation of dates
beyond December 31, 1999 in such systems which would materially and
adversely affect the ability of the Trustee to perform its obligations
under this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the
Closing Date that:
(i) The Fiscal Agent is a foreign bank corporation
duly organized, validly existing and in good standing under the laws
governing its creation and existence and has full corporate power and
authority to own its property, to carry on its business as presently
conducted, and to enter into and perform its obligations under this
Agreement;
(ii) The execution and delivery by the Fiscal Agent
of this Agreement have been duly authorized by all necessary corporate
action on the part of the Fiscal Agent; neither the
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execution and delivery of this Agreement, nor the consummation of the
transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decrees or order binding
on the Fiscal Agent or its properties that would materially and
adversely affect the Fiscal Agent's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the Fiscal
Agent, or (iii) the terms of any material agreement or instrument to
which the Fiscal Agent is a party or by which it is bound; the Fiscal
Agent is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state,
municipal or other governmental agency, which default would materially
and adversely affect its performance under this Agreement;
(iii) The execution, delivery and performance by the
Fiscal Agent of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to, or the registration
with, any state, federal or other governmental authority or agency,
except such as has been obtained, given, effected or taken prior to the
date hereof;
(iv) This Agreement has been duly executed and
delivered by the Fiscal Agent and, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a valid
and binding obligation of the Fiscal Agent, enforceable against the
Fiscal Agent in accordance with its terms, subject, as to enforcement
of remedies, (A) to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally
as from time to time in effect, (B) to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (C) to public policy considerations
underlying the securities laws to the extent that such considerations
limit the enforceability of the provisions of this Agreement that
purport to provide for indemnification for securities law violations;
and
(v) No litigation is pending or, to the best of the
Fiscal Agent's knowledge, threatened, against the Fiscal Agent, the
outcome of which could reasonably be expected to materially and
adversely affect the execution, delivery and performance by, or the
enforceability against, the Fiscal Agent of this Agreement or the
ability of the Fiscal Agent to perform under the terms of this
Agreement.
SECTION 7.16. FISCAL AGENT TERMINATION EVENT.
"FISCAL AGENT TERMINATION EVENT," wherever used herein, means
any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the
Trustee when due any required Advances; or
(ii) A decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs,
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shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(iii) The Fiscal Agent shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings or relating
to the Fiscal Agent or of or relating to all or substantially all of
its property; or
(iv) The Fiscal Agent shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(v) Either Rating Agency shall indicate its intent
to reduce, withdraw or qualify, if applicable (which shall not include
a "negative" credit watch) the outstanding rating of any Class of
Certificates because the prospective financial condition or capacity to
make Advances of the Fiscal Agent is insufficient to maintain such
rating; or
(vi) The long-term unsecured debt of the Fiscal
Agent is rated below "AA" (or its equivalent) by either Rating Agency.
SECTION 7.17. PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination
given to the Fiscal Agent pursuant to Section 7.6(c), all authority, power and
rights of the Fiscal Agent under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall terminate and either a successor Fiscal Agent
shall be appointed by the Trustee, with the consent of the Depositor, or the
Trustee shall take such other action as shall prevent the downgrading of the
then-current ratings of the certificates; provided that in no event shall the
termination of the Fiscal Agent be effective until Rating Agency Confirmation
shall have been obtained with respect to the appointment of a successor fiscal
agent or such other action. The Fiscal Agent agrees to cooperate with the
Trustee in effecting the termination of the Fiscal Agent's responsibilities and
rights hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as
Fiscal Agent, the terminated Fiscal Agent shall continue to be entitled to
reimbursement of its Advances (with Advance Interest thereon) to the extent
provided in Section 5.2 but only to the extent such reimbursement relates to the
period up to and including the date on which the Fiscal Agent's termination is
effective. The Fiscal Agent shall be reimbursed for all amounts owed to it
hereunder on or prior to the effective date of its termination from amounts on
deposit in the Collection Account.
SECTION 7.18. IMPACT OF YEAR 2000 COMPLIANCE.
(a) Any type of difficulties or problems that may be
encountered by the Trustee or Fiscal Agent related in any way to the
manipulation of dates in 1999, 2000 or later, or otherwise related to such party
not being Year 2000 ready, shall not in any way relieve such party of its
obligations or liabilities under this Agreement.
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ARTICLE VIII.
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 8.1. SERVICING STANDARD; GENERAL POWERS AND DUTIES.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans and other assets of the Trust that it
is obligated to service and administer pursuant to this Agreement on behalf of
the Trustee and in the best interests of and for the sole benefit of the
Certificateholders (as determined by the Master Servicer or the Special
Servicer, as the case may be, in its good faith and reasonable judgment), in
accordance with applicable law, the terms of this Agreement and the terms of the
respective Mortgage Loans and, to the extent consistent with the foregoing,
further as follows: (i) with the same care, skill, prudence and diligence as is
normal and usual in its general mortgage servicing and property management
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to mortgage loans and REO properties that are comparable to
those for which it is responsible hereunder; (ii) with a view to the timely
collection of all scheduled payments of principal and interest under the
Mortgage Loans or, if a Mortgage Loan comes into and continues in default and
if, in the good faith and reasonable judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) on a net present value basis; and
(iii) without regard to (A) any relationship that the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof may have with the
related Mortgagor, the Depositor, either Seller, or other servicer of the
Mortgage Loans, (B) the ownership of any Certificate by the Master Servicer or
the Special Servicer, as the case may be, or by any Affiliate thereof, (C) the
Master Servicer's obligation to make Advances, (D) the Special Servicer's
obligation to make (or to direct the Master Servicer to make) Servicing
Advances, (E) the right of the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction, (F) the ownership,
servicing or management for others of any other mortgage loans or mortgaged
property; and (G) any obligation of the Master Servicer or the Special Servicer,
as the case may be (as a seller or an Affiliate of a seller of the Mortgage
Loans), to pay any indemnity with respect to, or repurchase, any Mortgage Loan
(the conditions set forth in the immediately foregoing clauses (i), (ii) and
(iii), the "SERVICING STANDARD"). Without limiting the generality of the
foregoing, each of the Master Servicer and the Special Servicer, in its own
name, in connection with its servicing and administrative duties hereunder is
hereby authorized and empowered by the Trustee to exercise all efforts
consistent with the foregoing standard and to execute and deliver, on behalf of
the Certificateholders and the Trustee or any of them, any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
subject to Section 8.18, any and all modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File; and any and all instruments of satisfaction or cancellation, or of full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans and the Mortgaged Properties. Subject to Section 8.18, each of
the Master Servicer and the Special Servicer is also authorized to approve a
request by a Mortgagor under a Mortgage Loan that it is obligated to service and
administer pursuant to this Agreement, for an easement, consent to alteration or
demolition, and for other similar matters, provided that the Master Servicer or
the Special Servicer, as the case may be, determines, exercising its good faith
business judgment in the same manner as it would if it were the
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owner of the related Mortgage Loan, that such approval will not affect the
security for, or the timely and full collectability of, the related Mortgage
Loan. Subject to Section 8.8, the Trustee shall furnish, or cause to be
furnished, to the Master Servicer and the Special Servicer any powers of
attorney and other documents necessary or appropriate to enable the Master
Servicer or the Special Servicer, as the case may be, to carry out its servicing
and administrative duties hereunder; provided, however, that the Trustee shall
not be held liable for any negligence with respect to, or misuse of, any such
power of attorney by the Master Servicer or the Special Servicer, as the case
may be.
(b) Except as otherwise expressly set forth herein with
respect to specific duties, the Master Servicer shall be responsible for the
servicing and administration of all the Mortgage Loans other than Specially
Serviced Mortgage Loans and REO Mortgage Loans, and the Special Servicer shall
be responsible for the servicing and administration of Specially Serviced
Mortgage Loans, REO Mortgage Loans and REO Properties. Subject to Section
8.1(a), the Master Servicer and the Special Servicer shall each have full power
and authority, acting alone or, subject to Section 8.4, through Sub-Servicers,
to do or cause to be done any and all things in connection with such servicing
and administration that it may deem necessary or desirable.
(c) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan and if the Master Servicer is not
also the Special Servicer, the Master Servicer shall promptly give notice
thereof, and deliver the related Servicing File, to the Special Servicer and
shall use reasonable efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use reasonable efforts to comply with
the preceding sentence within five Business Days of the occurrence of each
related Servicing Transfer Event. The Special Servicer may, as to any delinquent
Mortgage Loan, prior to the occurrence of a Servicing Transfer Event with
respect thereto, upon reasonable request, obtain the foregoing documents and
information.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Special Servicer shall promptly give notice thereof, and
return the related Servicing File, to the Master Servicer and upon giving such
notice, and returning such Servicing File, to the Master Servicer, the Special
Servicer's obligation to service such Mortgage Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Mortgage Loan in accordance with this Agreement shall resume.
Notwithstanding other provisions in this Agreement to the
contrary, the Master Servicer shall remain responsible for the billing and
collection, accounting, data collection, reporting and other basic Master
Servicer administrative functions with respect to Specially Serviced Mortgage
Loans, provided that the Special Servicer shall establish procedures for the
Master Servicer as to the application of receipts and tendered payments and
shall have the exclusive responsibility for and authority over all contacts with
and notices to Mortgagors and similar matters relating to each Specially
Serviced Mortgage Loan and the related Mortgaged Property.
(d) The Master Servicer and Special Servicer will each be
required to service and administer each of the respective groups of
Cross-Collateralized Mortgage Loans as a single Mortgage Loan as and when it
deems necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other
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Mortgage Loan with which it is cross-collateralized shall also become a
Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage
Loan may subsequently become a Corrected Mortgage Loan, unless and until all
Servicing Transfer Events in respect of each other Mortgage Loan with which it
is cross-collateralized, are remediated or otherwise addressed as contemplated
above.
(e) Notwithstanding anything in this Agreement to the
contrary, in the event that the Master Servicer and the Special Servicer are the
same Person, all notices, certificates, information and consents required to be
given by the Master Servicer to the Special Servicer or vice versa shall be
deemed to be given without the necessity of any action on such Person's part.
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and, unless the same Person acts in both
capacities, to each other under this Agreement is intended by the parties to be
that of an independent contractor and not of a joint venturer, partner or agent.
Unless the same person acts in both capacities, the Master Servicer shall have
no responsibility for the performance of the Special Servicer of its duties
under this Agreement, and the Special Servicer shall have no responsibility for
the performance of the Master Servicer under this Agreement.
SECTION 8.2. COLLECTION OF MORTGAGE LOAN PAYMENTS.
(a) The Master Servicer (or the Special Servicer with respect
to the Specially Serviced Mortgage Loans) shall, in accordance with the
Servicing Standard, make reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans, and shall follow
procedures which are consistent with the Servicing Standard; provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the Master Servicer or the Special Servicer of the collectability
of the Mortgage Loans. Consistent with the foregoing, the Master Servicer may in
its discretion waive any Penalty Charge in connection with any delinquent
payment on a Mortgage Loan (other than a Specially Serviced Mortgage Loan) and
the Special Servicer may in its discretion waive any Penalty Charge in
connection with any delinquent payment on a Specially Serviced Mortgage Loan.
(b) With respect to each Mortgage Loan, if any Lock-Box
Agreement or similar agreement is required by the terms of the related Mortgage,
the Master Servicer shall establish and maintain one or more accounts ("LOCK-BOX
ACCOUNTS") to be held outside the Trust and maintained by the Master Servicer in
accordance with the terms of the related Mortgage. Subject to the terms of the
related Mortgage, any Lock-Box Agreement or similar agreement, Lock-Box Accounts
shall be Eligible Accounts. The Master Servicer shall apply the funds deposited
in such accounts in accordance with the terms of the related Mortgage, any
Lock-Box Agreement and/or any similar agreement and in accordance with the
Servicing Standard.
(c) So long as the related Mortgage Note has not been
accelerated, the Master Servicer and the Special Servicer shall not take any
enforcement action other than requests for payment with respect to payment of
Excess Interest or principal in excess of the principal component of the Monthly
Payment prior to the final maturity date. The Master Servicer will also be
permitted to forgive the payment of Excess Interest under the circumstances set
forth in Section 8.18.
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SECTION 8.3. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR
ITEMS; SERVICING ACCOUNTS AND RESERVE ACCOUNTS.
(a) The Master Servicer shall establish and maintain one or
more accounts (the "SERVICING ACCOUNTS") into which all Escrow Payments shall be
deposited and retained. Subject to the terms of the related Mortgage Note and
Mortgage, Servicing Accounts shall be Eligible Accounts. Withdrawals of amounts
so collected in respect of any Mortgage Loan (and interest earned thereon) from
a Servicing Account may be made only to: (i) effect payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and
comparable items in respect of the related Mortgaged Property; (ii) reimburse
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, for any unreimbursed Servicing Advances and unreimbursed Advance
Interest made thereby to cover any of the items described in the immediately
preceding clause (i); (iii) refund to the related Mortgagor any sums as may be
determined to be overages; (iv) pay interest, if required and as described
below, to the related Mortgagor on balances in the Servicing Account (or, if and
to the extent not payable to the related Mortgagor, to pay such interest to the
Master Servicer); or (v) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 10.1. As part of its
servicing duties, the Master Servicer shall pay or cause to be paid to the
Mortgagors interest on funds in Servicing Accounts maintained thereby, to the
extent required by law or the terms of the related Mortgage Loan, and otherwise
may retain such amounts.
(b) The Master Servicer shall (i) maintain accurate records
with respect to each related Mortgaged Property reflecting the status of real
estate taxes, assessments and other similar items that are or may become a lien
thereon and the status of insurance premiums and any ground rents payable in
respect thereof and (ii) use reasonable efforts to obtain, from time to time,
all bills for the payment of such items (including renewal premiums); and the
Master Servicer shall effect payment thereof (in the case of Specially Serviced
Mortgage Loans, at the direction of the Special Servicer) prior to the
applicable penalty or termination date, employing for such purpose Escrow
Payments as allowed under the terms of the related Mortgage Loan. To the extent
that a Mortgage Loan does not require a Mortgagor to escrow for the payment of
real estate taxes, assessments, insurance premiums, ground rents (if applicable)
and similar items, the Master Servicer (or the Special Servicer with respect to
the Specially Serviced Mortgaged Loans) shall use efforts consistent with the
Servicing Standard to cause the related Mortgagor to comply with the
requirements of the related Mortgage for payments in respect of such items at
the time they first become due.
(c) In accordance with the Servicing Standard, the Master
Servicer (at the direction of the Special Servicer in the case of Specially
Serviced Mortgage Loans) shall, subject to Section 4.4, advance with respect to
each related Mortgaged Property all such funds as are necessary for the purpose
of effecting the payment of (i) real estate taxes, assessments and other similar
items that are or may become a lien thereon, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies, in each instance if and to the extent
that Escrow Payments, if any, collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis. All such advances shall be reimbursable in the
first instance from related collections from the Mortgagors, and further as
provided in Section 5.2. No costs incurred by the Master Servicer or the Special
Servicer in effecting the payment of real estate taxes, assessments, ground
rents (if applicable) and other similar items on or in respect of the Mortgaged
Properties shall, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans, notwithstanding that the terms
of such Mortgage Loans so permit.
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(d) The Master Servicer shall establish and maintain, as
applicable, one or more accounts (the "RESERVE ACCOUNTS"), into which all
Reserve Funds, if any, shall be deposited and retained. Withdrawals of amounts
so deposited may be made to pay for, or to reimburse the related Mortgagor in
connection with, the related repairs, environmental remediation, replacements,
capital improvements and/or similar items at the related Mortgaged Property if
such repairs, environmental remediation, replacements, capital improvements
and/or similar items have been completed, and such withdrawals are made, in
accordance with the Servicing Standard and the terms of the related Mortgage
Note, Mortgage and any agreement with the related Mortgagor governing such
Reserve Funds. Subject to the terms of the related Mortgage Note and Mortgage,
all Reserve Accounts shall be Eligible Accounts. Within 6 months of the Closing
Date, the Master Servicer shall deliver a report to the Special Servicer and the
Depositor setting forth the status of each of the Reserve Accounts and the
actions taken in respect of the purposes for which such Reserve Accounts were
established and any recommendations in respect thereof.
SECTION 8.4. SUB-SERVICING AGREEMENTS.
(a) The Master Servicer and the Special Servicer may each
enter into Sub-Servicing Agreements for the servicing and administration of all
or a part of the Mortgage Loans for which it is responsible hereunder, provided
that, in each case, the Sub-Servicing Agreement: (i) is not inconsistent with
this Agreement and shall provide that the Sub-Servicer shall maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer or the Special Servicer under Section 8.5 hereof, (ii) provides that if
the Master Servicer or the Special Servicer, as the case may be, shall for any
reason no longer be the Master Servicer or Special Servicer, as applicable,
hereunder (including, without limitation, by reason of an Event of Default and
its termination hereunder), the successor to the Master Servicer or Special
Servicer, as applicable (including the Trustee or its designee) may (or in the
case of the Sub-Servicing Agreement between Midland Loan Services, Inc. and the
Master Servicer (the "Midland Sub-Servicing Agreement"), such Person shall)
thereupon assume all of the rights and, except to the extent they arose prior to
the date of assumption, obligations of the Master Servicer or the Special
Servicer, as the case may be, under such agreement or, alternatively (except in
the case of the Midland Sub-Servicing Agreement), may terminate such agreement
without payment of any termination fee or penalty out of the Trust; (iii) in the
case of a Sub-Servicing Agreement entered into by the Master Servicer, expressly
or effectively provides that (if the Master Servicer and the Special Servicer
are not the same Person) such agreement shall terminate with respect to any
Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan (provided that such agreement may provide that
such Mortgage Loan may again be serviced thereunder if it becomes a Corrected
Mortgage Loan); (iv) in the case of a Sub-Servicing Agreement entered into by
the Special Servicer, relates only to Specially Serviced Mortgage Loans or REO
Properties and expressly or effectively provides that (if the Master Servicer
and the Special Servicer are not the same Person) such agreement shall terminate
with respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan;
(v) provides that the Trustee for the benefit of the Certificateholders shall be
a third party beneficiary under such Sub-Servicing Agreement, but that (except
to the extent the successor to the Master Servicer or Special Servicer, as
applicable (including the Trustee or its designee) assumes the obligations of
the Master Servicer or the Special Servicer, as the case may be, thereunder as
contemplated by the immediately preceding clause (ii)) none of the Trust Fund,
the Trustee, any successor Master Servicer or Special Servicer (unless and to
the extent that the successor Master Servicer or the Special Servicer is a party
to such Sub-Servicing Agreement), as the case may be, or any Certificateholder
shall have any duties under such Sub-Servicing Agreement or any liabilities
arising therefrom; (vi) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without
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penalty and (vii) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund.
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer, as the case may be, include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer, as the case may be, hereunder to make Servicing Advances and
P&I Advances shall be deemed to have been advanced by the Master Servicer or the
Special Servicer, as the case may be, out of its own funds. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when the Sub-Servicer receives such payment. Annually,
in connection with the delivery of the Officer's Certificate contemplated in
Section 8.12, the Master Servicer and the Special Servicer each shall identify
to the other, the Trustee and the Depositor any Sub-Servicers then retained
thereby.
(b) Each Sub-Servicer shall be authorized to transact business
in the state or states in which the Mortgaged Properties securing the Mortgage
Loans it is to service are situated, if and to the extent required by applicable
law.
(c) As part of its servicing activities hereunder, the Master
Servicer and the Special Servicer, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of each
Sub-Servicer retained by it under the related Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as the case may be, would require were it the owner of the
Mortgage Loans. Subject to the terms of the applicable Sub-Servicing Agreement,
the Master Servicer and the Special Servicer each shall have the right to remove
a Sub-Servicer retained by it at any time it considers such removal to be in the
best interests of Certificateholders.
(d) In the event the Trustee or its designee assumes the
rights and obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer each shall remain obligated and liable to the
Trustee and the Certificateholders for the servicing and administration of the
Mortgage Loans in accordance with the provisions of this Agreement to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible. The Master
Servicer or the Special Servicer, as applicable, shall indemnify the Trust Fund
against any loss, damage or liability arising by reason of the willful
misfeasance, bad faith or negligence in the performance of duties by any
Sub-Servicer appointed by it or by reason of negligent disregard by such
Sub-Servicer of obligations and duties under this Agreement and such
Sub-Servicing Agreement.
(f) Notwithstanding anything to the contrary contained herein,
neither the Master Servicer nor the Special Servicer shall have the right to
delegate to any Sub-Servicer any right granted to
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the Master Servicer or the Special Servicer, as applicable, hereunder to modify
or foreclose upon any Mortgage Loan.
(g) The fees of a Sub-Servicer shall be the obligation of the
Master Servicer or the Special Servicer, as applicable, that entered into the
related Sub-Servicing Agreement, and the Trust Fund shall not bear any such fees
or any termination fee payable to any Sub-Servicer as a result of the
Sub-Servicer's termination.
SECTION 8.5. MAINTENANCE OF INSURANCE POLICIES; ERRORS AND
OMISSIONS AND FIDELITY COVERAGE.
(a) The Master Servicer shall use reasonable efforts to cause
each Mortgagor to maintain in respect of the related Mortgaged Property all
insurance coverage (other than earthquake insurance) as is required under the
related Mortgage; provided that if any Mortgage permits the holder thereof to
dictate to the Mortgagor the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer, or the Special Servicer in the case of
Specially Serviced Mortgage Loans, shall impose such insurance requirements as
are consistent with the Servicing Standard. If a Mortgagor fails to maintain
such insurance, the Master Servicer or the Special Servicer in the case of
Specially Serviced Mortgage Loans, shall (to the extent available at
commercially reasonable rates) obtain such insurance (which may be through a
master or single interest policy), and the cost (including any deductible
relating to such insurance) of such insurance (or in the case of a master or
single interest policy, the incremental cost (including any deductible relating
to such insurance) of such insurance relating to the specific Mortgaged
Property) shall be a Servicing Advance (subject to the limitations set forth in
Section 4.2(a)) recoverable by the Master Servicer, or the Special Servicer in
the case of Specially Serviced Mortgage Loans, pursuant to Section 5.2. If at
any time a Mortgaged Property is located in an area identified in the Flood
Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency
Management Agency as having special flood hazards or it becomes located in such
area by virtue of remapping conducted by such agency (and flood insurance has
been made available), then upon the Master Servicer or the Special Servicer
becoming aware of such fact (using efforts consistent with the Servicing
Standard), the Master Servicer, or the Special Servicer in the case of Specially
Serviced Mortgage Loans, shall, if and to the extent that the Mortgage Loan
requires the Mortgagor or permits the Mortgagee to require the Mortgagor to do
so, use efforts consistent with the Servicing Standard to cause the related
Mortgagor to maintain a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration in an amount
representing coverage of not less than the least of (i) the unpaid principal
balance of the related Mortgage Loan, (ii) the full insurable value of such
Mortgaged Property, (iii) the maximum amount of insurance coverage available
under the National Flood Insurance Act of 1968, the Flood Disaster Protection
Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, and
(iv) 100% of the replacement cost of the improvements on such Mortgaged
Property. If (i) the Mortgagor is required by the terms of the Mortgage Loan to
maintain such insurance (or becomes obligated by virtue of the related Mortgaged
Property becoming located in such area by virtue of such remapping) or (ii) the
terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to
obtain such insurance, the Master Servicer shall promptly notify the Mortgagor
of its obligation to obtain such insurance. If the Mortgagor fails to obtain
such flood insurance within 120 days of such notification, the Master Servicer,
or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall
obtain such insurance (to the extent available at commercially reasonable
rates), and the cost of such insurance shall be a Servicing Advance recoverable
by the Master Servicer, or the Special Servicer in the case of Specially
Serviced Mortgage Loans, pursuant to Section 5.2. The Special Servicer shall
cause to be maintained for each REO Property no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage.
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All such insurance policies shall contain a "standard"
mortgagee clause or shall identify the Trustee as the named insured, as
applicable, with any loss payable to the Master Servicer (in the case of
Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on
behalf of the Trustee. Any amounts collected by the Master Servicer or the
Special Servicer under any such policies (other than amounts to be applied to
the restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case in accordance with
applicable law, the terms of the related Mortgage Loan documents and the
Servicing Standard) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 5.2. Any cost incurred by the Master Servicer or
the Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the outstanding principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
(b) (i) If the Master Servicer or the Special Servicer, as
applicable, causes any Mortgaged Property or REO Property to be covered by a
blanket insurance policy, which provides protection equivalent to the individual
policies otherwise required, the Master Servicer or Special Servicer will
conclusively be deemed to have satisfied its respective obligations to cause
hazard insurance to be maintained on such Mortgaged Properties or REO
Properties. Such policy may contain a deductible clause, in which case the
Master Servicer or the Special Servicer, as applicable, will 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 8.5(a),
and (ii) a loss occurs that would have been covered by such a policy had it been
maintained, immediately deposit into the Collection Account (or into the
Servicing Account if insurance proceeds are to be applied to the repair or
restoration of the applicable Mortgaged Property or disbursed to the related
Mortgagor) 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. The Master Servicer and the Special
Servicer each agrees to prepare and present, on behalf of itself, the Trustee
and Certificateholders, claims under any such blanket insurance policy
maintained by it in a timely fashion in accordance with the terms of such
policy. The incremental cost of such insurance allocable to any Mortgaged
Property or REO Property, if not borne by the Mortgagor, will be paid by the
Master Servicer as a Servicing Advance.
(ii) If the Master Servicer or the Special Servicer, as
applicable, causes any Mortgaged Property or REO Property to be covered by a
master force placed insurance policy, which provides protection equivalent to
the individual policies otherwise required, the Master Servicer or Special
Servicer shall conclusively be deemed to have satisfied its respective
obligations to cause hazard insurance to be maintained on such Mortgaged
Properties and/or REO Properties. Such policy may contain a deductible clause,
in which case the Master Servicers 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 8.5(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 (or into the Servicing Account
if insurance proceeds are to be applied to the repair or restoration of the
applicable Mortgaged Property or disbursed to the related Mortgagor) 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. The Master Servicer and the Special Servicer each
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any
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such master force placed insurance policy maintained by it in a timely fashion
in accordance with the terms of such policy. The incremental cost of such
insurance allocable to any Mortgaged Property or REO Property, if not borne by
the Mortgagor, will be paid by the Master Servicer as a Servicing Advance.
(c) Each of the Master Servicer and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions insurance policy covering its officers and employees. The amount of
coverage shall be at least equal to the coverage that would be required by FNMA
or FHLMC, whichever is greater, with respect to the Master Servicer or Special
Servicer, as the case may be, if the Master Servicer or Special Servicer, as the
case may be, were servicing and administering the Mortgage Loans and/or REO
Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of
the Master Servicer or the Special Servicer under a policy or bond obtained by
an Affiliate of such Person and providing the coverage required by this Section
8.5(c) shall satisfy the requirements of this Section 8.5(c).
(d) All insurance coverage required to be maintained by the
Master Servicer or the Special Servicer under this Section 8.5 shall be obtained
from Qualified Insurers (A) whose claims-paying ability is rated (or the
obligations of which are guaranteed or backed by a company having such claims
paying ability or rating) at least "A" or its equivalent (or, in the case of a
blanket hazard policy obtained in accordance with Section 8.5(b), rated in one
of the two highest ratings categories) by any two Rating Agencies or (B) who are
(as evidenced by the receipt of Rating Agency Confirmation) otherwise acceptable
to each Rating Agency.
SECTION 8.6. ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS;
SUBORDINATE FINANCING.
(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 mortgagee in connection with any
such sale or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 8.18(a), waive its right to exercise) any right
it may have with respect to such Mortgage Loan (x) to accelerate the payments
thereon, or (y) to withhold its consent to any such sale or other transfer, in a
manner consistent with the Servicing Standard; provided, however, that if the
Mortgaged Property to be sold or transferred relates to a Mortgage Loan that
constitutes 2% or more of the Stated Principal Balance of all the Mortgage Loans
(taking into account for the purposes of such calculation, (a) in the case of
any such Mortgage Loan that is a Cross-Collateralized Mortgage Loan, any
Mortgage Loan with which it is cross-collateralized and (b) in the case of any
such Mortgage Loan with respect to which the related Mortgagor or its affiliate
is a Mortgagor with respect to one or more other Mortgage Loans, such other
Mortgage Loan or Mortgage Loans), then any such sale or transfer shall require
Rating Agency Confirmation. In the event that the Special Servicer intends or is
required, in accordance with the preceding sentence, the Mortgage Loan
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documents or applicable law, to permit the transfer of any Mortgaged Property,
the Special Servicer, if consistent with the Servicing Standard, may enter into
a substitution of liability agreement, pursuant to which the original Mortgagor
and any original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the Mortgage
Note and any related guaranties. In connection with any such transfer and
substitution, the Special Servicer may require from the related Mortgagor a
reasonable and customary fee for the additional services performed by it,
together with reimbursement for any related costs and expenses incurred by it
(but only to the extent that charging such fee will not be a significant
modification of the Mortgage Loan for purposes of the REMIC Provisions or result
in an Adverse REMIC Event in respect of any REMIC Pool). The Special Servicer
shall promptly notify the Trustee and the Master Servicer of any such agreement
and forward the original thereof to the Trustee for inclusion in the related
Mortgage File (with a copy to the Master Servicer and the Rating Agencies). In
connection with the Rating Agency Confirmation, the Special Servicer shall
prepare and deliver to the Rating Agencies a memorandum outlining its analysis
and recommendation in accordance with the Servicing Standard, together with
copies of all relevant documentation. The Special Servicer shall also prepare
and provide the Rating Agencies with such memorandum and documentation for all
transfer, assumption and encumbrance consents granted for Mortgage Loans that
constitute less than 2% of the Stated Principal Balance of all of the Mortgage
Loans (taking into account clauses (a) and (b) above), but for which the Special
Servicer's decision will be sufficient and a Rating Agency Confirmation will not
be required.
(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 additional lien or other encumbrance on the related Mortgaged
Property; or
(ii) requires the consent of the mortgagee to the
creation of any such additional lien or other encumbrance on the
related Mortgaged Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 8.18(a)(ii), waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to the creation of any such
additional lien or other encumbrance, in a manner consistent with the Servicing
Standard; provided, however, that any such waiver shall require Rating Agency
Confirmation, provided that such Confirmation shall be required of DCR only if
the Mortgage Loan represents 2% or more of the Stated Principal Balance of all
Mortgage Loans (taking into account clauses (a) and (b) of Section 8.6(a)).
(c) Nothing in this Section 8.6 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 additional lien or other encumbrance
with respect to such Mortgaged Property.
(d) Except as otherwise permitted by Section 8.18, neither the
Master Servicer nor the Special Servicer shall agree to modify, waive or amend
any term of any Mortgage Loan in connection with the taking of, or the failure
to take, any action pursuant to this Section 8.6.
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(e) In the event that a Mortgagor elects to obtain a release
of the related Mortgaged Property from the lien of the related Mortgage by
pledging defeasance collateral in accordance with the terms of the Mortgage
Note, then the Master Servicer shall, in accordance with the terms of such
Mortgage Note, obtain reasonable assurance that the Certificates will not be
subject to a downgrade, withdrawal or qualification, if applicable, by the
Rating Agencies as a result of such defeasance and that any related expenses
will be paid for by the Mortgagor. In addition, to the extent permitted by the
Mortgage Loan documents or applicable law, the Master Servicer shall require an
Opinion of Counsel (which shall be at the expense of the Mortgagor) to the
effect that such defeasance will not cause an Adverse REMIC Event.
(f) Notwithstanding the provisions of Section 8.6(e), if a
defeasance is effected such that (i) the Mortgagor provides U.S. government
securities as defeasance collateral in an amount sufficient to generate cash for
loan payments as and when due under the Mortgage Note, (ii) an independent
accounting firm certifies that such defeasance collateral is sufficient to pay
the Mortgage Note in accordance with its terms, (iii) the loan is assumed (and
the collateral owned) by an entity meeting single purpose bankruptcy-remote
criteria (if the Mortgagor no longer complies), and (iv) counsel provides an
Opinion of Counsel that the Trustee has a perfected security interest in the
defeasance collateral, then no such assurance from DCR shall be required. The
Master Servicer shall not be required to establish and maintain on behalf of the
Mortgagor a single purpose bankruptcy-remote entity. The out-of-pocket expenses
incurred by the Master Servicer with respect to a defeasance pursuant to this
Section 8.6(f) if not required to be paid by the Mortgagor shall constitute a
Servicing Advance.
SECTION 8.7. REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Master Servicer shall notify the Special Servicer of
the occurrence of a Servicing Transfer Event in respect of any Mortgage Loan
and, subject to Section 8.18, the Special Servicer shall monitor such Mortgage
Loan, evaluate whether the causes of any default thereunder can be corrected
over a reasonable period without significant impairment of the value of the
related Mortgaged Property, initiate corrective action in cooperation with the
Mortgagor if, in the Special Servicer's reasonable and good faith judgment, cure
is likely, and take such other actions as are consistent with the Servicing
Standard. If, in the Special Servicer's reasonable and good faith judgment, such
corrective action has been unsuccessful, no satisfactory arrangement can be made
for collection of delinquent payments and no other alternative consistent with
the Servicing Standard can be negotiated, and the defaulted Mortgage Loan has
not been released from the Trust Fund pursuant to any provision hereof, then the
Special Servicer shall, subject to subsections (b) through (d) of this Section
8.7, exercise reasonable efforts, consistent with the Servicing Standard, to
foreclose upon or otherwise comparably convert (which may include an REO
Acquisition) the ownership of property securing such Mortgage Loan. The
foregoing is subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage from an Uninsured Cause, the Master Servicer
and the Special Servicer shall each have the right but not the obligation to
expend its own funds as a Servicing Advance toward the restoration of such
property if it shall determine in its reasonable discretion (i) that such
restoration will increase, on a net present value basis, the net proceeds of
liquidation of such Mortgaged Property to Certificateholders after reimbursement
to itself for such Advances (together with Advance Interest), and (ii) that such
Advances (together with Advance Interest) will be recoverable by the Master
Servicer or Special Servicer, as the case may be, out of the proceeds of
liquidation of such Mortgaged Property, as contemplated in Section 5.2. The
Special Servicer (or, at the direction of the Special Servicer, the Master
Servicer) shall be responsible for all other costs and expenses incurred by it
in any such proceedings, subject to its being entitled to reimbursement therefor
as a Servicing Advance as provided in Section 4.2 or Section 5.2, and further
subject to its being entitled to pay out of the related Liquidation Proceeds any
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Liquidation Expenses incurred in respect of any Mortgage Loan, which Liquidation
Expenses were outstanding at the time such proceeds are received. When
applicable state law permits the Special Servicer to select between judicial and
non-judicial foreclosure in respect of any Mortgaged Property, the Special
Servicer shall make such selection in a manner consistent with the Servicing
Standard. Nothing contained in this Section 8.7 shall be construed so as to
require the Special Servicer, on behalf of the Trust Fund, to make a bid on any
Mortgaged Property at a foreclosure sale or similar proceeding that is in excess
of the fair market value of such property, as determined by the Special Servicer
in its sole judgment taking into account, among other things, the physical
condition of the Mortgaged Property, the state of the local economy, the Trust's
obligation to dispose of any REO Property within the period specified in Section
8.19, and the results of any Appraisal obtained pursuant to this Agreement, all
such bids to be made in a manner consistent with the Servicing Standard. If and
when the Master Servicer or the Special Servicer deems it necessary and prudent
for purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer is authorized to have an
Appraisal performed with respect to such property (the cost of which Appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
(b) The Special Servicer shall not acquire any personal
property pursuant to this Section 8.7 (with the exception of cash or cash
equivalents pledged as collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real
property (within the meaning of Section 856(e)(1) of the Code) so
acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an
Opinion of Counsel (the cost of which may be withdrawn from the
Collection Account pursuant to Section 5.2) to the effect that the
holding of such personal property by the Trust Fund will not cause the
imposition of a tax on the Trust Fund or any REMIC Pool under the REMIC
Provisions or cause any of REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section
8.7, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trustee, complete foreclosure proceedings, obtain title to a Mortgaged
Property in lieu of foreclosure or otherwise, have a receiver of rents appointed
with respect to any Mortgaged Property, or take any other action with respect to
any Mortgaged Property, if, as a result of any such action, the Trustee, on
behalf of the Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously received an Environmental
Assessment in respect of such Mortgaged Property prepared by a Person who
regularly conducts Environmental Assessments and the Special Servicer, based
solely (as to environmental matters and related costs) on the information set
forth in such Environmental Assessment, determines that:
(i) the Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, that acquiring such Mortgaged
Property and taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to
produce a greater recovery to Certificateholders on a present value
basis than not acquiring such Mortgaged Property and not taking such
actions; and
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(ii) there are no circumstances or conditions
present at the Mortgaged Property relating to the use, management or
disposal of Hazardous Materials for which investigations, testing,
monitoring, containment, clean-up or remediation could be required
under any applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action could
be required, that acquiring such Mortgaged Property and taking such
actions with respect to such Mortgaged Property is reasonably likely to
produce a greater recovery to Certificateholders on a present value
basis than not acquiring such Mortgaged Property and not taking such
actions.
The cost of any such Environmental Assessment, as well as the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding paragraph, may be withdrawn from the Collection
Account by the Master Servicer as an expense of the Trust pursuant to Section
5.2; and if any such Environmental Assessment so warrants, the Special Servicer
shall, at the expense of the Trust payable out of the Collection Account
pursuant to Section 5.2, perform such additional environmental testing as is
consistent with the Servicing Standard to determine whether the conditions
described in clauses (i) and (ii) of the preceding paragraph have been
satisfied.
(d) If the environmental testing contemplated by subsection
(c) above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, then the Special Servicer
shall take such action as it deems to be in the best economic interest of the
Trust Fund (other than proceeding to acquire title to the Mortgaged Property)
and is hereby authorized at such time as it deems appropriate to release all or
a portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide monthly to the Master
Servicer, who shall, in turn, promptly deliver copies thereof to the Trustee,
written reports regarding any actions taken by the Special Servicer with respect
to any Mortgaged Property securing a defaulted Mortgage Loan as to which the
environmental testing contemplated in subsection (c) above has revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earliest to occur of
satisfaction of both such conditions, removal of the related Mortgage Loan from
the Trust Fund and release of the lien of the related Mortgage on such Mortgaged
Property. Within 5 days of its receipt thereof, the Trustee shall deliver a copy
of each such report to the Depositor and each Rating Agency.
(f) The Special Servicer shall report to the Internal Revenue
Service and the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed, and the information required to be reported regarding
the discharge of any debt. The Special Servicer shall deliver a copy of any such
report to the Trustee and the Master Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the laws of the state in which the
Mortgaged Property is located and the terms of the Mortgage Loan permit such an
action.
(h) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination in respect
of a defaulted Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate
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delivered to the Trustee and the Master Servicer no later than 10 Business Days
following such Final Recovery Determination.
SECTION 8.8. TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer or the Special Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or the Special Servicer, as the case may be, will immediately
notify the Trustee and request delivery of the related Mortgage File. Any such
notice and request shall be in the form of a Request for Release signed by a
Servicing Officer and shall include a statement to the effect that all amounts
received or to be received in connection with such payment that are required to
be deposited in the Collection Account pursuant to Section 5.1 have been or will
be so deposited. Within five Business Days (or within such shorter period as
release can reasonably be accomplished if the Master Servicer or the Special
Servicer notifies the Trustee of an exigency) of receipt of such notice and
request, the Trustee shall release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or the Special Servicer,
whichever requested it. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time as is appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
may deliver to the Trustee a Request for Release signed by a Servicing Officer
thereof. Upon receipt of the foregoing, the Trustee shall deliver or cause the
related Custodian to deliver, the Mortgage File or any document therein to the
Master Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to 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 that are required to be deposited
into the Collection Account pursuant to Section 5.1 have been or will be so
deposited, or that such Mortgage Loan has become an REO Mortgage Loan, the
Request for Release shall be released by the Trustee to the Master Servicer or
the Special Servicer, as applicable.
(c) Within five Business Days (or within such shorter period
as delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents 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 Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the related Mortgage, except for the termination of
such a lien upon completion of the foreclosure or trustee's sale.
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SECTION 8.9. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER OR SPECIAL SERVICER TO BE HELD FOR TRUSTEE FOR THE BENEFIT OF
CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the
Master Servicer and the Special Servicer shall each transmit to the Trustee, to
the extent required by this Agreement, all documents and instruments coming into
the possession of the Master Servicer or the Special Servicer, as the case may
be, from time to time and shall account fully to the Trustee for any funds
received or otherwise collected thereby, including Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds in respect of any Mortgage Loan or
REO Property. All Mortgage Loan documents and funds collected or held by, or
under the control of, the Master Servicer or the Special Servicer in respect of
any Mortgage Loans and/or REO Properties, whether from the collection of
principal and interest payments or from Liquidation Proceeds, Condemnation
Proceeds or Insurance Proceeds or otherwise, including any funds on deposit in
the Collection Account, shall be held by the Master Servicer or the Special
Servicer, as the case may be, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer and the Special Servicer each agrees that it shall not create, incur or
subject any Mortgage Loan documents or any funds that are deposited in the
Collection Account or any Lock-Box Account, Reserve Account or Servicing
Account, or any funds that otherwise are or may become due or payable to the
Trustee, to any claim, lien, security interest, judgment, levy, writ of
attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Mortgage Loan documents or any funds
collected on, or in connection with, a Mortgage Loan or REO Property, except,
however, that the Master Servicer and the Special Servicer each shall be
entitled to receive from any such funds any amounts that are properly due and
payable to the Master Servicer or the Special Servicer, as the case may be,
under this Agreement.
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SECTION 8.10. SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan, including without limitation each Specially Serviced
Mortgage Loan and each REO Mortgage Loan. As to each Mortgage Loan, including
without limitation each Specially Serviced Mortgage Loan and each REO Mortgage
Loan, the Master Servicing Fee shall accrue on the related Stated Principal
Balance of such Mortgage Loan outstanding from time to time at the applicable
Master Servicing Fee Rate and shall be computed for the same period and on the
same interest accrual basis respecting which any related interest payment due or
deemed due on such Mortgage Loan is computed. The Master Servicing Fee with
respect to any Mortgage Loan or REO Mortgage Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. The Master Servicing Fee shall be
payable monthly, on a loan-by-loan basis, from payments of interest on each
Mortgage Loan, REO Income allocable as interest on each REO Mortgage Loan and
the interest portion of P&I Advances on each Mortgage Loan, including without
limitation each REO Mortgage Loan. The Master Servicer shall be entitled to
recover unpaid Master Servicing Fees in respect of any Mortgage Loan, including
without limitation each REO Mortgage Loan, out of that portion of related
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Repurchase
Proceeds or payments of Substitution Shortfall Amounts allocable as recoveries
of interest, to the extent permitted by Section 5.2. The Master Servicer's right
to receive the Master Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement.
The Master Servicer shall be entitled to additional master
servicing compensation ("ADDITIONAL MASTER SERVICING COMPENSATION") in the form
of:
(i) 50% of any modification fees and assumption fees
and 100% of any ancillary fees not otherwise addressed herein (other
than in respect of Specially Serviced Mortgage Loans) and Penalty
Charges collected on Mortgage Loans other than Specially Serviced
Mortgage Loans and REO Mortgage Loans, but only to the extent actually
paid by the related Mortgagor and to the extent that all amounts then
due and payable with respect to the related Mortgage Loan have been
paid and, with respect to Default Interest only, are not needed to pay
Advance Interest with respect to any other Mortgage Loan;
(ii) any Prepayment Interest Excesses collected on
the Mortgage Loans, including without limitation Specially Serviced
Mortgage Loans and REO Mortgage Loans, but only to the extent that the
aggregate of all such Prepayment Interest Excesses collected during
each Collection Period exceeds the Prepayment Interest Shortfalls
incurred during such Collection Period;
(iii) any interest and other income earned on the
investment of funds in the Collection Account and Interest Reserve
Account, but only to the extent not applied to offset losses on other
investments of funds in the Collection Account, and
(iv) any interest and other income earned on the
investment of funds in the Servicing Accounts, Reserve Accounts and
Lock-Box Accounts maintained by the Master Servicer, but only to the
extent not required to be paid to Mortgagors under applicable law or
the terms of the respective Mortgage Loan documents.
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(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, the Special
Servicing Fee shall accrue on the related Stated Principal Balance of such
Mortgage Loan outstanding from time to time at the Special Servicing Fee Rate
and shall be computed for the same period respecting which any related interest
payment due on such Specially Serviced Mortgage Loan or deemed to be due on such
REO Mortgage Loan is computed. The Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. As to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, earned but unpaid Special
Servicing Fees shall be payable monthly out of the same sources and at the same
time (but separate from) Master Servicing Fees payable to the Master Servicer in
respect of such Specially Serviced Mortgage Loan or REO Mortgage Loan.
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout
Fee shall be payable from, and shall be calculated by application of the Workout
Fee Rate to, each collection of interest and principal received on such Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property, provided that a new Workout Fee 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 in accordance
with Section 8.24, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans during
the period that it acted as Special Servicer and were still such at the time of
such termination or resignation (and the successor Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until the Workout
Fee for any such loan ceases to be payable in accordance with the preceding
sentence.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property as to which it
receives any full or discounted payoff or any Liquidation Proceeds (other than
in connection with the purchase of any such Specially Serviced Mortgage Loan or
REO Property by any Person entitled to effect an optional termination of the
Trust pursuant to Section 10.01). The Liquidation Fee with respect to any such
Specially Serviced Mortgage Loan will not be payable if such Mortgage Loan
becomes a Corrected Mortgage Loan. Notwithstanding anything herein to the
contrary, no Liquidation Fee will be payable from, or based upon the receipt of,
Liquidation Proceeds collected as a result of any purchase of a Specially
Serviced Mortgage Loan or REO Property described in the parenthetical to the
first sentence of this paragraph.
The Special Servicer shall be entitled to additional special
servicing compensation ("ADDITIONAL SPECIAL SERVICING COMPENSATION") in the form
of 100% of any modification fees, assumption fees, and ancillary fees not
otherwise addressed herein relating to Specially Serviced Mortgage Loans and, to
the extent not otherwise applied to pay Advance Interest as provided herein,
Penalty Charges, collected on Specially Serviced Mortgage Loans and REO Mortgage
Loans and 50% of any modification fees and assumption fees collected on Mortgage
Loans other than Specially Serviced Mortgage Loans and REO Mortgage Loans.
(c) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all overhead and general and administrative
expenses incurred by it in connection with its
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servicing activities hereunder (including, without limitation, payment of any
amount due and owing to any Sub-Servicers retained by it and the premiums for
any blanket policy obtained by it insuring against hazard losses pursuant to
Section 8.5(b)), if and to the extent such expenses are not payable directly out
of the Collection Account, and neither the Master Servicer nor the Special
Servicer, as the case may be, shall be entitled to reimbursement except as
expressly provided in this Agreement. In the event that Rating Agency
Confirmation is required in connection with any exercise of rights by the Master
Servicer or the Special Servicer, as applicable, under any Mortgage Loan, the
Master Servicer or Special Servicer, as the case may be, shall use its
reasonable efforts consistent with the Servicing Standard to cause the related
Borrower to pay any fee required by the applicable Rating Agency for such
confirmation, and if the Borrower does not pay such fee, then it shall be paid
by the Master Servicer as a Servicing Advance.
SECTION 8.11. MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) The Master Servicer shall deliver to the Trustee, no later
than 2:00 p.m. Eastern time on the Report Date, the Master Servicer Remittance
Report with respect to the related Distribution Date. The Special Servicer shall
provide all information relating to Specially Serviced Mortgage Loans and REO
Properties to permit the Master Servicer to satisfy its duties in this Section
8.11 on or before the date that is one Business Day prior to the Report Date. No
later than the Business Day that is two Business Days after the Determination
Date, the Master Servicer shall deliver to the Trustee a preliminary remittance
report detailing the scheduled monthly payments due and any unanticipated
payments received by the Master Servicer in the Collection Period.
(b) The Master Servicer shall deliver to the Trustee within 30
days following each Master Servicer Remittance Date a statement setting forth
the status of the Collection Account as of the close of business on such Master
Servicer Remittance Date showing, for the period covered by such statement, the
aggregate of deposits of each type provided in Section 5.1 in, and the aggregate
of withdrawals of each type provided in Section 5.2 from, the Collection
Account.
SECTION 8.12. ANNUAL STATEMENT AS TO COMPLIANCE. The Master
Servicer and the Special Servicer shall each deliver to the Depositor, the
Operating Adviser (or if no Operating Adviser has been elected, the Majority
Certificateholder of the Controlling Class), the Rating Agencies and the Trustee
(and, in the case of the Special Servicer, to the Master Servicer) on or before
April 30 of each year, an Officer's Certificate stating, as to the signer
thereof, that (a) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year or
portion thereof and of the performance of the Master Servicer or the Special
Servicer, as the case may be, under this Agreement has been made under such
officer's supervision and (b) to the best of such officer's knowledge, based on
such review, the Master Servicer or the Special Servicer, as the case may be,
has fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. The Master Servicer and the Special Servicer shall
each forward to the Rating Agencies a copy of each such statement delivered by
it to the Depositor and the Trustee.
SECTION 8.13. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT. On or before April 30 of each year beginning April 30, 2000, the Master
Servicer at its expense shall cause a firm of Accountants to furnish a statement
to the Depositor, the Operating Adviser (or if no Operating Adviser has been
elected, the Majority Certificateholder of the Controlling Class), the Rating
Agencies and the Trustee to the effect that (i) it has obtained a letter of
representation regarding certain matters from the management of the Master
Servicer, which includes an assertion that the Master
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Servicer has complied with certain minimum mortgage loan servicing standards (to
the extent applicable to commercial and multifamily mortgage loans), identified
in the Uniform Single Attestation Program for Mortgage Bankers established by
the Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those Sub-Servicers.
The Special Servicer will deliver to the Depositor, the
Operating Adviser (or if no Operating Adviser has been elected, the Majority
Certificateholder of the Controlling Class), the Trustee, the Rating Agencies
and the Master Servicer an annual accountants' report.
The Master Servicer and the Special Servicer, to the extent
applicable, shall each, with 90 days' prior written notice, use reasonable
efforts to cause the applicable Accountants to cooperate with the Depositor in
conforming any reports delivered pursuant to this Section 8.13 to requirements
imposed by the Securities and Exchange Commission on the Depositor in connection
with the Securities and Exchange Commission's issuance of a no-action letter
relating to the Depositor's reporting requirements in respect of the Trust Fund
pursuant to the Exchange Act.
The Master Servicer and the Special Servicer shall each
forward to the Rating Agencies a copy of each statement delivered by it to the
Depositor and the Trustee pursuant to this Section 8.13.
SECTION 8.14. CERTAIN REPORTS REGARDING THE MORTGAGE LOANS AND
THE MORTGAGED PROPERTIES.
(a) On or before the Report Date in each month, the Master
Servicer shall deliver to the Trustee a report containing information regarding
the Mortgage Loans as of the end of the related Collection Period, which report
will contain substantially the categories of information regarding the Mortgage
Loans set forth on Exhibit I hereto. The Master Servicer also maintains a site
on the World Wide Web at www.amresco.com at which property level information
will be available.
(b) [reserved.]
(c) No later than 1:00 p.m. New York time on the Master
Servicer Remittance Date, the Master Servicer shall deliver or cause to be
delivered to the Trustee and the Rating Agencies the following reports with
respect to the Mortgage Loans (and, if applicable, the related REO Properties),
providing the required information as of the Determination 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; and (vi) CSSA Reports. Such reports shall be presented
in writing and on a computer readable medium reasonably acceptable to the
Trustee. 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 Master Servicer pursuant to Section
8.29. In the absence of manifest error, the Master Servicer shall be entitled to
conclusively rely upon, without investigation or inquiry, the information and
reports delivered to it by the Special Servicer and any Borrower, and the
Trustee shall be entitled to conclusively rely upon the Master
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Servicer's reports and the Special Servicer's reports without any duty or
obligation to recompute, verify or recalculate any of the amounts and other
information stated therein. Any of such reports may include any disclaimers the
Master Servicer deems appropriate.
(d) The Master Servicer shall deliver or cause to be delivered
to the Trustee and the Rating Agencies upon request 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 Master Servicer:
(i) At least annually by June 30, with respect to
each 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, together with copies of the
operating statements and rent rolls (but only to the extent the related
Mortgagor 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 delivered by the Special Servicer) for
the related Mortgaged Property or REO Property as of the end of the
preceding fiscal year. The Master Servicer shall use its reasonable
efforts to obtain such annual operating statements and rent rolls with
respect to each of the Mortgage Loans other than Specially Serviced
Mortgage Loans or REO Mortgage Loans, which efforts shall include (if
such reports are required by the terms of the Mortgage Loans) a letter
sent to the related Mortgagor each quarter (followed up with telephone
calls) requesting such annual operating statements and rent rolls until
they are received to the extent such action is consistent with
applicable law and the terms of the Mortgage Loans. The Master Servicer
and the Special Servicer shall be entitled to rely conclusively on all
information provided by the Borrower and shall have no liability
arising directly or indirectly from the inaccuracy or incompleteness of
any information provided by the Borrower and shall have no duty to
verify the information provided by the Borrower.
(ii) Within thirty days after receipt by the Master
Servicer (or twenty days after 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, an NOI Adjustment Worksheet for such Mortgaged Property
(with the annual operating statements attached thereto as an exhibit).
The Master 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 constitutes security for a Specially Serviced Mortgage Loan) is to be updated
by the Master Servicer and such updated report delivered to the Trustee on the
Master Servicer Remittance Date which is no earlier than thirty days after
receipt by the Master Servicer of updated operating statements for such
Mortgaged Property. The Master 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 within thirty days after
receipt of the necessary information.
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(e) No later than 1:00 p.m. New York time on the Master
Servicer Remittance Date, beginning in April 1999, the Master Servicer shall
prepare and deliver to the Trustee and the Special Servicer, a Watch List of all
Mortgage Loans that the Master 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
include, without limitation: (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 or having a current trailing twelve-month
Debt Service Coverage Ratio that is less than 1.00x, (ii) Mortgage Loans as to
which any required inspection of the related Mortgaged Property conducted by the
Master Servicer indicates a problem that the Master Servicer determines can
reasonably be expected to materially adversely affect the cash flow generated by
such Mortgaged Property, (iii) Mortgage Loans which have come to the Master
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 full Collection Period delinquent in payment, and (v)
Mortgage Loans that are within 60 days of maturity. Any such Watch List may
include any disclaimers the Master Servicer deems appropriate.
The Special Servicer shall report to the Master 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 Master 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 Master 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) One Business Day after the Determination Date, the Special
Servicer shall deliver, or cause to be delivered, to the Master Servicer and,
upon the request of any of the Trustee, the Depositor or either Rating Agency,
to such requesting party, the following reports with respect to the Specially
Serviced Mortgage Loans (and, if applicable, the related REO Properties),
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 (vi) CSSA
Reports. Such reports shall be presented in writing and on a computer readable
magnetic medium. Such information may be provided as part of another CSSA report
in lieu of these separate reports.
(g) The Special Servicer shall deliver or cause to be
delivered to the Master Servicer and, upon the request of any of the Trustee,
the Depositor or any Rating Agency, 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, 1999, 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, together with copies of the operating
statements and rent rolls 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 in accordance with the
Servicing
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Standard to obtain such annual operating statements and rent rolls with
respect to each Mortgaged Property constituting security for a
Specially Serviced Mortgage Loan and each REO Property, which efforts
shall include a letter sent to the related Mortgagor or other
appropriate party each quarter (followed up with telephone calls)
requesting such annual operating statements and rent rolls until they
are received.
(ii) Within 10 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 an REO Property is to be updated by the Special Servicer and such
updated report delivered to the Master Servicer within ten days after receipt by
the Special Servicer of updated operating statements for each such Mortgaged
Property. 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 an REO
Property to update the Operating Statement Analysis report for such Mortgaged
Property, such updates to be completed and copies thereof sent to the Master
Servicer within ten 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 Master Servicer or the Special Servicer pursuant to this Agreement.
(i) The Trustee shall send copies of the reports received by
it pursuant to Section 8.14(a) to the Depositor, RFC, the Holders of the
Privately Offered Certificates and each Rating Agency.
(j) All reports prepared by the Master Servicer and Special
Servicer pursuant to this Section 8.14 shall be prepared, to the extent
applicable, in the format recommended by CSSA.
SECTION 8.15. CERTAIN AVAILABLE INFORMATION AND RELATED RIGHTS OF THE
MASTER SERVICER AND THE SPECIAL SERVICER.
(a) Subject to the restrictions described below (and except to
the extent not permitted by law or under any of the Mortgage Loan documents),
the Master Servicer and the Special Servicer shall each also afford the Rating
Agencies, the Depositor, the Trustee, the Fiscal Agent, the Special Servicer,
the Underwriters, and the Operating Adviser, and the Majority Certificateholder
of the Controlling Class upon reasonable notice and during normal business
hours, reasonable access to any and all additional relevant, non-proprietary and
non-attorney-client-privileged records and documentation in its possession or
under its control regarding the Mortgage Loans, REO Properties and all accounts,
insurance policies and other relevant matters relating to this Agreement, and
access to Servicing Officers of the Master Servicer or Special Servicing
Officers of the Special Servicer, as the case may be, responsible for its
obligations hereunder. Copies (or computer diskettes or other digital or
electronic copies of such information if reasonably available in lieu of paper
copies) of any and all of the foregoing items shall be made available by the
Master Servicer or the Special Servicer, as the case may be, upon
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request; provided, however, that the Master Servicer and the Special Servicer
shall each be permitted to require payment by the requesting party (other than
the Depositor, the Trustee, the Underwriters or either Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by the Master
Servicer or the Special Servicer, as the case may be, of providing access or
copies (including electronic or digital copies) of any such information
requested in accordance with the preceding sentence.
(b) Nothing herein shall be deemed to require the Master
Servicer or Special Servicer to confirm, represent or warrant the accuracy of
(or to be liable or responsible for) any other Person's information or report,
included in any communication from the other (unless the Master Servicer and the
Special Servicer are the same Person) or from a Mortgagor. Neither the Master
Servicer nor the Special Servicer shall have any liability to the Depositor, the
Trustee, any Certificateholder, any Certificate Owner, the Underwriters, either
Rating Agency or any other Person to whom it delivers information pursuant to
this Section 8.15 or any other provision of this Agreement for federal, state or
other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, the Trust (from amounts held in the Collection
Account from time to time) shall hold harmless and indemnify the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, from any loss or expense (including attorneys' fees) relating to or arising
from such claims.
(c) The Master Servicer and the Special Servicer shall each
produce the reports required of it under this Agreement; provided, however, that
neither the Master Servicer nor the Special Servicer shall be required to
produce any ad hoc non-standard written reports with respect to the Mortgage
Loans. In the event the Master Servicer or the Special Servicer elects to
provide such reports, it may require the Person requesting such report to pay a
reasonable fee to cover the costs of the preparation thereof. Requests for any
such report shall be made, and any such report shall be disseminated, through
the Trustee.
(d) In connection with providing access to or copies of the
items described in the subsections (a), (b) and/or (c) of this Section 8.15 or
in Section 8.16, the Master Servicer, the Special Servicer and the Trustee may
each require: (a) in the case of Certificate Owners, a written confirmation
executed by the requesting Person, in form reasonably satisfactory to the Master
Servicer, the Special Servicer or the Trustee, as the case may be, generally to
the effect that such Person is a beneficial holder of Certificates, is
requesting the information solely for use in evaluating such Person's investment
in the Certificates and will otherwise keep such information confidential; and
(b) in the case of Prospective Investors, a written confirmation executed by the
requesting Person, in form reasonably satisfactory to the Master Servicer, the
Special Servicer or the Trustee, as the case may be, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential.
(e) The Master Servicer and the Special Servicer shall each
provide or cause to be provided to the OTS, the FDIC and any other federal or
state banking or insurance regulatory authority that may exercise authority over
any Certificateholder or Certificate Owner, access to any and all records and
other documentation regarding the Mortgage Loans and the Trust Fund within its
control that may be required by this Agreement or by applicable law. Such access
shall be afforded without charge but only upon reasonable prior written request
and during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it.
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(f) The Master Servicer and the Special Servicer shall each
cooperate in providing the Rating Agencies with such other pertinent information
relating to the Mortgage Loans as is or should be in their respective possession
as the Rating Agencies may reasonably request. Any Holder of a Privately Offered
Certificate may, upon request to the Trustee (which may be in the form of a
standing request for as long as such Holder remains a Holder of any such
Certificates), obtain a copy of any report or other information (to the extent
the Trustee has such report or other information in its possession) delivered to
the Rating Agencies under this Agreement.
SECTION 8.16. RULE 144A INFORMATION. For so long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, each of the Master Servicer and the Special Servicer agrees
to provide to the Trustee, which in turn shall provide to any Holder,
Certificate Owner or Prospective Investor of such Certificates, upon the request
of such Holder, Certificate Owner or Prospective Investor, subject to the other
provisions of this Section 8.16 and the provisions of subsections (b), (c) and
(d) of Section 8.15, any information prepared by or otherwise in the possession
or under the control of the Master Servicer or the Special Servicer, as the case
may be, that has not already been delivered to the Trustee and that is required
to be provided to such Holder, Certificate Owner or Prospective Investor to
satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act,
including, without limitation, copies of the reports and information described
in subsection (a) of Section 8.15.
Any recipient of information provided pursuant to this Section
8.16 shall agree that such information shall not be disclosed or used for any
purpose other than the evaluation of an investment in the Certificates. Unless
the Master Servicer or the Special Servicer chooses to deliver the information
directly, the Trustee shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to the
Master Servicer or the Special Servicer making any report or information
available upon request to any Person other than one of the other parties hereto,
the Master Servicer or the Special Servicer, as the case may be, may require
that the recipient of such information acknowledge that the Master Servicer or
the Special Servicer, as the case may be, may contemporaneously provide such
information to the Depositor, the Trustee, the Underwriters and/or the
Certificateholders and Certificate Owners. The Master Servicer and the Special
Servicer will each be permitted to require payment of a sum by the requesting
party (other than the Rating Agencies, the Depositor, the Trustee or the
Underwriters) sufficient to cover the reasonable costs and expenses of making
such information available.
SECTION 8.17. INSPECTIONS; COLLECTION OF FINANCIAL STATEMENTS.
(a) The Master Servicer shall perform (or cause to be
performed) a physical inspection of each Mortgaged Property (other than
Mortgaged Properties constituting REO Properties or collateral for Specially
Serviced Mortgaged Loans) at such times and in such manner as are consistent
with the Servicing Standard, but in any event at least once every two years (or,
if the related Mortgage Loan has a current balance of more than $2,000,000, at
least once every year) provided that the Master Servicer will have no obligation
to inspect a Mortgaged Property inspected by the Special Servicer during such
period. The Master Servicer shall promptly prepare (or cause to be prepared) a
written report of each such inspection detailing the condition of the Mortgaged
Property and specifying the existence of (i) any vacancy in the Mortgaged
Property evident from such inspection that the Master Servicer deems material,
(ii) any sale, transfer or abandonment of the Mortgaged Property evident from
such inspection, (iii) any adverse change in the condition or value of the
Mortgaged Property evident from such inspection that the Master Servicer deems
material, or (iv) any waste committed on the Mortgaged Property evident from
such inspection. The Master Servicer shall upon request deliver to the
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Trustee, the Special Servicer and the Depositor a copy of each such written
report of the related inspection, and the Trustee shall deliver to the Holders
of the Privately Offered Certificates a copy of each such written report within
15 days of receipt of such report from the Master Servicer
(b) If any Mortgage Loan becomes a Specially Serviced Mortgage
Loan, then as soon as practicable (and in any event within 90 days thereafter)
the Special Servicer shall perform (or cause to be performed) a physical
inspection of each Mortgaged Property constituting collateral for such Mortgage
Loan (unless such Mortgaged Property had been inspected within the prior three
months), and the Special Servicer shall thereafter inspect such Mortgaged
Property at such times and in such manner as are consistent with the Servicing
Standard (but in any event at least once per calendar year). The cost of such
inspections shall be a Servicing Advance. The Special Servicer shall promptly
prepare (or cause to be prepared) a written report of each such inspection
detailing the condition of the Mortgaged Property and specifying the existence
of (i) any vacancy in the Mortgaged Property evident from such inspection that
the Special Servicer deems material, (ii) any sale, transfer or abandonment of
the Mortgaged Property evident from such inspection, (iii) any adverse change in
the condition or value of the Mortgaged Property evident from such inspection
that the Special Servicer deems material, or (iv) any waste committed on the
Mortgaged Property evident from such inspection. The Special Servicer shall
deliver to the Master Servicer, the Trustee, the Holders of the Privately
Offered Certificates and the Depositor a copy of each such written report within
15 days of the related inspection.
(c) The Master Servicer (or, in the case of Specially Serviced
Mortgage Loans, the Special Servicer) shall make reasonable efforts to collect
promptly from each Mortgagor quarterly and annual operating statements and rent
rolls of the related Mortgaged Property, and financial statements of such
Mortgagor, if delivery of such items is required pursuant to the terms of the
related Mortgage. In addition, the Special Servicer shall use reasonable efforts
to obtain quarterly and annual operating statements and rent rolls with respect
to each REO Property. The Master Servicer and Special Servicer shall, upon
request, each deliver copies of the collected items to the other such party and
the Trustee, and the Trustee shall deliver copies of such items to the Depositor
and Holders of the Privately Offered Certificates upon request.
SECTION 8.18. MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS.
(a) Subject to the limitations of Section 12.4 hereof, the
Special Servicer and Master Servicer, as applicable, shall have the following
powers:
(i) The Special Servicer in accordance with the
Servicing Standard, may agree to any modification, waiver, amendment or
consent of or relating to any non-Money Term or may extend the maturity
date of any Balloon Mortgage Loan that is not a Specially Serviced
Mortgage Loan to a date that is not more than 60 days following the
original Maturity Date and not later than two years prior to the Rated
Final Distribution Date (or if secured by a ground lease, not later
than the date that is 10 years prior to the end of such ground lease),
if in the Special Servicer's sole judgment exercised in good faith and
in accordance with the Servicing Standard (and evidenced by an
Officer's Certificate), a default in the payment of the Balloon Payment
is reasonably foreseeable and such extension is reasonably likely to
produce a greater recovery on a net present value basis than
liquidation of such Mortgage Loan. The Special Servicer shall process
all such extensions and shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor
with respect to any such extension.
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The Master Servicer may modify or amend the terms of any
Mortgage Loan without the consent of the Special Servicer in order to (i) cure
any ambiguity therein or (ii) correct or supplement any provisions therein which
may be inconsistent with any other provisions therein or correct any error,
provided that such modification or amendment would not cause an Adverse REMIC
Event to occur. In addition, the Master Servicer in accordance with the
Servicing Standard, may agree to any modification, waiver, amendment or consent
of or relating to any non-Money Term of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan other than (x) any modification or waiver contemplated by
Section 8.6, and (y) any amendment that would result in an Adverse REMIC Event
or a "significant modification" within the meaning of Treasury Regulation
1.860G-2(b). Other than as set forth in the preceding sentence, the Master
Servicer shall not agree to any modification or amendment of a Mortgage Loan or
any waiver or consent (other than immaterial waivers and consents made in the
ordinary course of business).
(ii) The Special Servicer may require, in its
discretion, as a condition to granting any request by a Mortgagor for
any consent, modification, waiver or amendment, that such Mortgagor pay
to the Special Servicer a reasonable and customary modification fee to
the extent permitted by law. The Special Servicer may charge the
Mortgagor for any costs and expenses (including attorneys' fees)
incurred by the Special Servicer in connection with any request for a
modification, waiver or amendment. The failure or inability of the
Mortgagor to pay any such costs and expenses shall not impair the right
of the Special Servicer to cause such costs and expenses, and interest
thereon at the Advance Rate, to be paid or reimbursed by the Trust as a
Servicing Advance (to the extent not paid by the Mortgagor).
(iii) Each of the Special Servicer and the Master
Servicer, as applicable, shall notify the Trustee of any modification,
waiver or amendment of any term of any Mortgage Loan permitted by it
under this Section and the date thereof, and shall deliver to the
Trustee for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or
amendment, promptly following the execution thereof except to the
extent such documents have been submitted to the applicable recording
office, in which event the Special Servicer or the Master Servicer, as
applicable, shall promptly deliver copies of such documents to the
Trustee. The Trustee shall deliver copies of such documents to the
Holders of the Privately Offered Certificates within 15 days of receipt
by the Trustee thereof.
(b) Subject to the limitation of Section 12.4 hereof, the
Special Servicer, in accordance with the Servicing Standard, shall have the
following additional powers:
(i) The Special Servicer may enter into a
modification, waiver or amendment (including, without limitation, the
substitution or release of collateral or the pledge of additional
collateral) of the terms of a Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (a) reduce the
amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium, (b) reduce the
amount of the Monthly Payment on any Specially Serviced Mortgage Loan,
including by way of a reduction in the related Mortgage Rate, (c)
forebear in the enforcement of any right granted under any Mortgage
Note or Mortgage relating to a Specially Serviced Mortgage Loan, (d)
extend the Maturity Date of any Specially Serviced Mortgage Loan and/or
(e) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period
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during which voluntary Principal Prepayments are prohibited, provided
that (1) the related Mortgagor is in default with respect to the
Specially Serviced Mortgage Loan or, in the judgment of the Special
Servicer, such default is reasonably foreseeable, (2) in the reasonable
judgment of the Special Servicer such modification would increase the
recovery on the Mortgage Loan to Certificateholders on a net present
value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related
Mortgage Rate) and (3) such modification, waiver or amendment would not
cause an Adverse REMIC Event to occur.
In no event shall the Special Servicer (i) extend the Maturity
Date of a Specially Serviced Mortgage Loan beyond a date that is two years prior
to the Rated Final Distribution Date; (ii) extend the Maturity Date of any
Specially Serviced Mortgage Loan at an interest rate below the then-prevailing
interest rate for comparable loans at the time of such modification as
determined by the Special Servicer (such limitation of extensions made at below
market rates shall not limit the ability of the Special Servicer to extend the
Maturity Date of any Specially Serviced Mortgage Loan at an interest rate at or
in excess of the prevailing rate for comparable loans at the time of such
modification); (iii) if the Specially Serviced Mortgage Loan is secured by a
ground lease, extend the Maturity Date of such Specially Serviced Mortgage Loan
beyond a date which is less than 10 years prior to the expiration of the term of
such ground lease; (iv) reduce the Mortgage Rate of a Specially Serviced
Mortgage Loan to a rate below the then-prevailing interest rate for comparable
loans at the time of such modification, as determined by the Special Servicer;
or (v) defer interest due on any Specially Serviced Mortgage Loan in excess of
10% of the Stated Principal Balance of such Specially Serviced Mortgage Loan or
defer the collection of interest on any Specially Serviced Mortgage Loan without
accruing interest on such deferred interest at a rate at least equal to the
Mortgage Rate of such Specially Serviced Mortgage Loan.
Notwithstanding the foregoing, if a Mortgage Loan is a Balloon
Loan that has failed to make the Balloon Payment at its scheduled maturity, and
such Balloon Loan is not a Specially Serviced Mortgage Loan (other than by
reason of failure to make the Balloon Payment) and has not been delinquent in
the preceding 12 months (other than with respect to the Balloon Payment), then
in addition to the other alternatives specified above, the Special Servicer may
make up to three one-year extensions at the existing Mortgage Rate for such
Mortgage Loan; provided that in no event shall any such extension extend beyond
the date that is two years prior to the Rated Final Distribution Date (or if
secured by a ground lease, not later than the date that is 10 years prior to the
end of such ground lease).
The determination of the Special Servicer contemplated by
clause (2) of the proviso to the first paragraph of this Section 8.18(b)(i) and
clause (ii) of the second paragraph of this Section 8.18(b)(i) shall be
evidenced by an Officer's Certificate to such effect delivered to the Trustee
and the Master Servicer and describing in reasonable detail the basis for the
Special Servicer's determination. The Special Servicer shall append to such
Officer's Certificate any information, including but not limited to income and
expense statements, rent rolls, property inspection reports and appraisals, that
support such determination.
(ii) In the event the Special Servicer intends to
permit a Mortgagor to substitute collateral for all or any portion of a
Mortgaged Property pursuant to Section 8.18(b)(i) or pledge additional
collateral for the Mortgage Loan pursuant to Section 8.18(b)(i), if the
security interest of the Trust in such collateral would be perfected by
possession, or if such collateral requires special care or protection,
then prior to agreeing to such substitution or addition of collateral,
the Special Servicer shall make arrangements for such possession, care
or protection, and prior to agreeing to such substitution or addition
of collateral (or such arrangement for possession, care or protection)
shall obtain the prior written consent of the
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Trustee with respect thereto (which consent shall not be unreasonably
withheld, delayed or conditioned); provided, however, that any such
substitution or addition of collateral shall require Rating Agency
Confirmation; provided further, however, that the Trustee shall not be
required (but has the option) to consent to any substitution or
addition of collateral or to hold any such collateral which will
require the Trustee to undertake any additional duties or obligations
or incur any additional expense.
(iii) The Special Servicer will promptly deliver to
the Master Servicer, the Operating Adviser (or if no Operating Adviser
has been elected, the Majority Certificateholder of the Controlling
Class), the Rating Agencies and the Trustee a notice, specifying any
such modifications, waivers or amendments, such notice identifying the
affected Specially Serviced Mortgage Loan. Such notice shall be
delivered to the Trustee and shall set forth the reasons for such
waiver, modification, or amendment (including, but not limited to,
information such as related income and expense statements, rent rolls,
occupancy status, property inspections, and an internal or external
appraisal performed in accordance with MAI standards and methodologies
(and, if done externally, the cost of such appraisal shall be
recoverable as a Servicing Advance subject to the provisions of Section
4.2 hereof)). The Special Servicer shall also deliver to the Trustee
(or the Custodian), for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification,
waiver or amendment promptly following the execution thereof.
(iv) No fee described in this Section shall be
collected by the Special Servicer from the Mortgagor (or on behalf of
the Mortgagor) in conjunction with any consent or any modification,
waiver or amendment of the Mortgage Loan if the collection of such fee
would cause such consent, modification, waiver or amendment to be a
"significant modification" of the Mortgage Note within the meaning of
Treasury Regulation ss. 1.860G-2(b). Subject to the foregoing, the
Special Servicer shall use its reasonable efforts, to collect any
modification fees and other expenses connected with a permitted
modification of a Mortgage Loan from the Mortgagor. The inability of
the Mortgagor to pay any costs and expenses of a proposed modification
shall not impair the right of the Special Servicer, the Master Servicer
or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel
referred to in this Section).
(v) The Special Servicer shall cooperate with the
Master Servicer (as provided in Section 8.6) in connection with
assignments and assumptions of Mortgage Loans that are not Specially
Serviced Mortgage Loans.
(vi) Notwithstanding anything herein to the
contrary, the Special Servicer shall not be permitted to take or
refrain from taking any action pursuant to instructions from the
Operating Adviser that would cause it to violate any term or provision
of this Agreement, including the REMIC Provisions and the Servicing
Standard.
(c) The Master Servicer or 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 all or a portion of
accrued Excess Interest, provided that the Master Servicer or Special Servicer,
as applicable, determines that (i) in the absence of the waiver of such Excess
Interest, there is a reasonable likelihood that the Mortgage Loan will not be
paid in full on the related Maturity Date and (ii) waiver of the right to such
accrued Excess
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Interest is reasonably likely to produce a greater payment in the aggregate to
Certificateholders on a present value basis than a refusal to waive the right to
such Excess Interest. Any such waiver shall not be effective until such
prepayment is tendered.
SECTION 8.19. TITLE TO REO PROPERTY.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued in the name of the Trustee on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall in
accordance with Section 8.31 attempt to sell any REO Property for cash by the
close of the third taxable year of the REMIC following the taxable year in which
the Trust Fund acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code (such date, the "REO SALE DEADLINE"), unless the Special
Servicer either (i) applies for, more than 60 days prior to the REO Sale
Deadline, and is subsequently granted an extension of time (an "REO EXTENSION")
by the Internal Revenue Service to sell such REO Property, or (ii) obtains for
the Trustee an Opinion of Counsel, addressed to the Trustee and the Special
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the REO Sale Deadline will not result in the imposition of taxes
on "prohibited transactions" of REMIC I, REMIC II or REMIC III as defined in
Section 860F of the Code or cause REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding. If the
Special Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
attempt to sell such REO Property within such period beyond the REO Sale
Deadline as is permitted by such REO Extension or is contemplated by such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust Fund payable out of the Collection Account pursuant to
Section 5.2.
(b) The Special Servicer shall deposit, or cause to be
deposited, in the Collection Account, or shall deliver to the Master Servicer
(which shall deposit such amounts into the Collection Account), upon receipt,
all REO Income (net of the fees of any property manager and net of any expenses
payable therefrom), Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of an REO Property, subject to withdrawal by the
Master Servicer pursuant to Section 5.2.
SECTION 8.20. MANAGEMENT OF REO PROPERTY.
(a) Prior to the acquisition of title to any Mortgaged
Property securing a defaulted Mortgage Loan, the Special Servicer shall review
the operation of such Mortgaged Property and determine the nature of the income
that would be derived from such property if it were acquired by the Trust. If
the Special Servicer determines from such review, in its good faith and
reasonable judgment, that:
(i) none of the income from Directly Operating such
Mortgaged Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC Provisions or
would be subject to the tax imposed on "prohibited transactions" under
Section 860F of the Code (either such tax referred to herein as an "REO
TAX"), then such Mortgaged Property may be Directly Operated by the
Special Servicer as REO Property;
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(ii) Directly Operating such Mortgaged Property as
REO Property could result in income from such Mortgaged Property that
would be subject to an REO Tax, but that a lease of such Mortgaged
Property to another party to operate such Mortgaged Property, or the
performance of some services by an Independent Contractor with respect
to such Mortgaged Property, or another method of operating such
Mortgaged Property would not result in income subject to an REO Tax,
then the Special Servicer may (provided that, in the good faith and
reasonable judgment of the Special Servicer, it is commercially
feasible) acquire such Mortgaged Property as REO Property and so lease
or operate such REO Property; or
(iii) Directly Operating such Mortgaged Property as
REO Property could result in income subject to an REO Tax and, in the
good faith and reasonable judgment of the Special Servicer, that no
commercially feasible means exists to operate such Mortgaged Property
as REO Property without the Trust incurring or possibly incurring an
REO Tax on income from such Mortgaged Property, then the Special
Servicer shall deliver to the Trustee, in writing, a proposed plan (the
"PROPOSED PLAN") to manage such Mortgaged Property as REO Property.
Such plan shall include potential sources of income, and to the extent
commercially feasible, estimates of the amount of income from each such
source. Within a reasonable period of time after receipt of such plan,
the Trustee shall consult with the Special Servicer and shall advise
the Special Servicer of the Trust's federal income tax reporting
position with respect to the various sources of income that the Trust
would derive under the Proposed Plan. In addition, the Trustee shall
(to the maximum extent possible) advise the Special Servicer of the
estimated amount of taxes that the Trust would be required to pay with
respect to each such source of income. After receiving the information
described in the two preceding sentences from the Trustee, the Special
Servicer shall either (A) implement the Proposed Plan (after acquiring
the respective Mortgaged Property as REO Property) or (B) manage and
operate such REO Property in a manner that would not result in the
imposition of an REO Tax on the income derived from such REO Property.
The Special Servicer's decision as to how each REO Property
shall be managed and operated shall in any event be based on the good faith and
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard, as to which means would (to the extent commercially feasible) maximize
the net after-tax REO Income received by the Trust with respect to such REO
Property without materially and adversely affecting the Special Servicer's
ability to sell such REO Property in accordance with this Agreement. Both the
Special Servicer and the Trustee may consult with counsel knowledgeable in such
matters at the expense of the Trust Fund in connection with determinations
required under this Section 8.20(a). Neither the Special Servicer nor the
Trustee shall be liable to the Certificateholders, the Trust, the other parties
hereto or each other for errors in judgment made in good faith in the reasonable
exercise of their discretion while performing their respective responsibilities
under this Section 8.20(a) or, to the extent it relates to federal income tax
consequences for the Trust, Section 8.20(b) below. Nothing in this Section
8.20(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO
Property pursuant to the terms and subject to the conditions of Section 8.31.
(b) If title to any REO Property is acquired, the Special
Servicer or an Independent Contractor chosen by the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by the Trust of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse
REMIC Event. Except as otherwise expressly provided herein, the Special Servicer
shall not enter into
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any lease, contract or other agreement that causes REMIC I to receive, and
(unless required to do so under any lease, contact or agreement to which the
Special Servicer or the Trust may become a party or a successor to a party due
to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a
creditor's rights or remedies with respect to a Mortgage Loan) shall not cause
or allow REMIC I to receive, any "net income from foreclosure property" that is
subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders in accordance with the Servicing Standard (as
determined by the Special Servicer in its good faith and reasonable judgment)
and, consistent therewith, shall direct the Master Servicer to withdraw from the
Collection Account, to the extent of amounts on deposit therein with respect to
each REO Property, and deliver to the Special Servicer (for appropriate
application), funds necessary for the proper operation, management and
maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect
of such REO Property;
(ii) all real estate taxes and assessments in respect
of such REO Property that may result in the imposition of a
lien thereon;
(iii) any ground rents in respect of such REO
Property; and
(iv) all costs and expenses necessary to maintain
such REO Property.
To the extent that amounts on deposit in the Collection Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Master Servicer (at the
direction of the Special Servicer) shall advance from its own funds such amount
as is necessary for such purposes unless such advances would, if made,
constitute Nonrecoverable Advances; provided, however, that the Master Servicer
(at the direction of the Special Servicer) shall make any such Servicing Advance
if it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings and such advance shall be deemed to constitute
a recoverable Servicing Advance.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) The terms and conditions of any such contract
may not be inconsistent herewith and shall reflect an agreement reached
at arm's length;
(ii) the fees of such Independent Contractor (which
shall be an expense of the Trust, payable out of related REO Income)
shall be reasonable and customary in light of the nature and locality
of the REO Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation, those
listed in subsection (b) of this Section 8.20 and (B) remit all related
REO Income collected (net of its fees and such costs and expenses) to
the Special Servicer upon receipt;
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(iv) none of the provisions of this Section 8.20(c)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special Servicer
of any of its duties and obligations hereunder with respect to the
operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were performing all
duties and obligations in connection with the operation and management
of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 8.21. ADDITIONAL OBLIGATIONS OF THE MASTER SERVICER.
(a) The Master Servicer and the Special Servicer shall each
deliver to the other and to the Trustee (for inclusion in the Mortgage File)
copies of all Appraisals, environmental reports and engineering reports (or, in
each case, updates thereof) obtained with respect to any Mortgaged Property or
REO Property.
(b) The Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account on each P&I Advance Date, without any right
of reimbursement therefor, an amount equal to the lesser of (i) the excess, if
any, of all Prepayment Interest Shortfalls over all Prepayment Interest
Excesses, in each case resulting from Principal Prepayments received in respect
of the Mortgage Pool during the most recently ended Collection Period, and (ii)
that portion of the aggregate Master Servicing Fees received by the Master
Servicer during such Collection Period calculated in respect of all Mortgage
Loans at a rate of 0.02% per annum.
SECTION 8.22. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
MASTER SERVICER AND THE SPECIAL SERVICER.
(a) (i) The Master Servicer, in its capacity as Master
Servicer hereunder, hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the
Depositor, as of the Closing Date, that:
(A) the Master Servicer is duly organized, validly existing
and in good standing as a limited partnership under the laws of the State of
Delaware, and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its obligations
under this Agreement, except where the failure to so qualify or comply would not
materially adversely affect the Master Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(B) the Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement, assuming the due authorization, execution and delivery thereof
by the other parties hereto, evidences the valid and binding
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obligation of the Master Servicer enforceable against the Master Servicer in
accordance with its terms subject, as to enforcement of remedies, (A) to
applicable bankruptcy, reorganization, insolvency, moratorium, receivership and
other similar laws affecting creditors' rights generally as from time to time in
effect, (B) to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (C) public
policy considerations underlying the securities laws to the extent that such
considerations limit the enforceability of the provisions of the Agreement that
purport to provide for indemnification for securities law violations;
(C) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement on the part of the
Master Servicer will not (A) result in a breach of any term or provision of its
organizational documents or (B) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any other material
agreement or instrument to which it is a party or by which it may be bound, or
any law, governmental rule, regulation, or judgment, decree or order applicable
to it of any court, regulatory body, administrative agency or governmental body
having jurisdiction over it, which would materially and adversely affect its
ability to perform its obligations under this Agreement;
(D) there is no litigation pending or, to the Master
Servicer's knowledge, threatened against it, the outcome of which would, if
adversely determined, reasonably be expected to materially and adversely affect
the execution, delivery and performance by, or the enforceability against, the
Master Servicer of this Agreement or its ability to service the Mortgage Loans
or to perform any of its other obligations hereunder in accordance with the
terms hereof;
(E) no consent, approval, authorization, qualification,
registration, filing, notice or order of any court or governmental agency or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement, or the
consummation of the transactions contemplated hereby, other than any such
consents, approvals, authorizations, qualifications, registrations, filings,
notices or orders as have been obtained or made or where the lack of such
consent, approval, authorization, qualification, registration, filing, notice or
order would not have a material adverse effect on the performance of the Master
Servicer under this Agreement;
(F) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer; and
(G) the Master Servicer hereby covenants, to its best
knowledge, which may be based upon information obtained from vendors who have
responded to Master Servicer's supplier inquiries and/or from information
obtained by Master Servicer from sources which Master Servicer reasonably
believes are reliable, that by August 31, 1999, any custom-made software or
hardware designed or purchased or licensed by Master Servicer, which Master
Servicer has identified as being mission-critical to its business for purposes
of its operations and for purposes of compiling, reporting, or generating data
required by this Agreement, will be capable of accurately performing
calculations or other processing with respect to dates after August 31, 1999 as
a result of the changing of the date from 1999 to 2000, including leap year
calculations, when used for the purpose for which it was intended, assuming that
all other
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products, including other software or hardware, when used in combination with
such software or hardware designed or purchased or licensed by the Master
Servicer properly exchange date data.
(ii) It is understood that the representations and
warranties set forth in this Section 8.22(a) shall survive the
execution and delivery of this Agreement.
(iii) Upon discovery by any of the parties hereto of
a breach of any of the foregoing representations and warranties that
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.
(iv) Any successor Master Servicer shall be deemed
to have made, as of the date of its succession, each of the
representations set forth in Section 8.22(a)(i), subject to such
appropriate modifications to the representation and warranty set forth
in Section 8.22(a)(i)(A) to accurately reflect such successor's
jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
(b) (i) The Special Servicer, in its capacity as Special
Servicer hereunder, hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the
Depositor, as of the Closing Date, that:
(A) the Special Servicer is duly organized, validly existing
and in good standing as a corporation under the laws of the State of Florida,
and is in compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to perform its obligations under this
Agreement, except where the failure to so qualify or comply would not materially
adversely affect the Special Servicer's ability to perform its obligations
hereunder in accordance with the terms of this Agreement;
(B) the Special Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement, assuming the due authorization, execution and delivery thereof
by the other parties hereto, evidences the valid and binding obligation of the
Special Servicer enforceable against the Special Servicer in accordance with its
terms subject, as to enforcement of remedies, (A) to applicable bankruptcy,
reorganization, insolvency, moratorium, receivership and other similar laws
affecting creditors' rights generally as from time to time in effect, (B) to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (C) public policy
considerations underlying the securities laws to the extent that such
considerations limit the enforceability of the provisions of the Agreement that
purport to provide for indemnification for securities law violations;
(C) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement on the part of the
Special Servicer will not (A) result in a breach of any term or provision of its
charter or by-laws or (B) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any other material
agreement or
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instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to it of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which would materially and adversely affect its ability to
perform its obligations under this Agreement;
(D) there is no litigation pending or, to the Special
Servicer's knowledge, threatened against it, the outcome of which would, if
adversely determined, reasonably be expected to materially and adversely affect
the execution, delivery and performance by, or the enforceability against, the
Special Servicer of this Agreement or its ability to service the Mortgage Loans
or to perform any of its other obligations hereunder in accordance with the
terms hereof;
(E) no consent, approval, authorization, qualification,
registration, filing, notice or order of 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 the
consummation of the transactions contemplated hereby, other than any such
consents, approvals, authorizations, qualifications, registrations, filings,
notices or orders as have been obtained or made or where the lack of such
consent, approval, authorization, qualification, registration, filing, notice or
order would not have a material adverse effect on the performance of the Special
Servicer under this Agreement; and
(F) the performance of the services by the Special Servicer
contemplated by this Agreement are in the ordinary course of business of the
Special Servicer.
(G) The Special Servicer hereby covenants, to its best
knowledge, which may be based upon information obtained from vendors who have
responded to Special Servicer's supplier inquiries and/or from information
obtained by Special Servicer from sources which Special Servicer reasonably
believes are reliable, that by August 31, 1999, any custom-made software or
hardware designed or purchased or licensed by Special Servicer, which Special
Servicer has identified as being mission-critical to its business for purposes
of its operations and for purposes of compiling, reporting, or generating data
required by this Agreement, will be capable of accurately performing
calculations or other processing with respect to dates after August 31, 1999 as
a result of the changing of the date from 1999 to 2000, including leap year
calculations, when used for the purpose for which it was intended, assuming that
all other products, including other software or hardware, when used in
combination with such software or hardware designed or purchased or licensed by
the Special Servicer properly exchange date data.
(ii) It is understood that the representations and
warranties set forth in this Section 8.22(b) shall survive the
execution and delivery of this Agreement.
(iii) Upon discovery by any of the parties hereto of
a breach of any of the foregoing representations and warranties that
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.
(iv) Any successor Special Servicer shall be deemed
to have made, as of the date of its succession, each of the
representations set forth in Section 8.22(b)(i), subject to such
appropriate modifications to the representation and warranty set forth
in Section
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8.22(b)(i)(A) to accurately reflect such successor's jurisdiction of
organization and whether it is a corporation, partnership, bank,
association or other type of organization.
SECTION 8.23. MERGER OR CONSOLIDATION. Any Person into which
the Master Servicer or the Special Servicer may be merged or consolidated or to
which the Master Servicer or the Special Servicer has transferred all or
substantially all of its servicing assets, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer or the Special Servicer shall be a party, or any Person succeeding to
the business of the Master Servicer or the Special Servicer, shall be the
successor of the Master Servicer or the Special Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, that Rating Agency Confirmation
shall have been obtained with respect to such merger, consolidation, or
succession.
SECTION 8.24. RESIGNATION OF MASTER SERVICER OR SPECIAL
SERVICER.
(a) Except as otherwise provided in Section 8.24(b) hereof,
neither the Master Servicer nor the Special Servicer shall resign from the
obligations and duties hereby imposed on it, unless there is a determination
that its duties hereunder are no longer permissible under applicable law or are
in material conflict by reason of applicable law with any other activities
carried on by it (the other activities so causing such conflict being of a type
and nature carried on by it at the date of this Agreement). Any such
determination permitting the resignation of the Master Servicer or the Special
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Trustee. No such resignation shall become effective until a successor
servicer designated by the Trustee, with the consent of the Depositor, shall
have assumed the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and obligations under this Agreement and Rating Agency
Confirmation shall have been obtained. Notice of such resignation shall be given
promptly by the Master Servicer or the Special Servicer, as the case may be, to
the Trustee.
(b) The Master Servicer and the Special Servicer may each
resign from the obligations and duties imposed on it, upon 30 days notice to the
Trustee, provided that (i) a successor servicer (x) is available, (y) has assets
of at least $15,000,000 and (z) is willing to assume the obligations,
responsibilities, and covenants to be performed hereunder by the resigning party
on substantially the same terms and conditions, and for not more than equivalent
compensation, to that herein provided; (ii) the resigning party bears all costs
associated with its resignation and the transfer of servicing; and (iii) Rating
Agency Confirmation is obtained with respect to such servicing transfer, as
evidenced by a letter delivered to the Trustee by each Rating Agency.
SECTION 8.25. ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER OR THE SPECIAL SERVICER. The Master Servicer and the Special Servicer
shall each have the right without the prior written consent of the Trustee to
assign and delegate all of its duties hereunder; provided, however, that (i) the
Master Servicer or the Special Servicer, as the case may be, gives the Depositor
and the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer or the Special Servicer, as
the case may be, with like effect as if originally named as a party to this
Agreement; (iii) a Rating Agency Confirmation shall have been obtained with
respect to such assignment and delegation; and (iv) the assignment and
delegation is reasonably satisfactory to the Trustee and the Depositor, it being
understood that the delegations existing as of the Closing Date shall be deemed
satisfactory to the
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Trustee and the Depositor. In the case of any such assignment and delegation in
accordance with the requirements of this Section, the Master Servicer or the
Special Servicer, as the case may be, shall be released from its obligations
under this Agreement, except that the Master Servicer or the Special Servicer,
as the case may be, shall remain liable for all liabilities and obligations
incurred by it as the Master Servicer or the Special Servicer, as the case may
be, hereunder prior to the satisfaction of the conditions to such assignment set
forth in the preceding sentence. Notwithstanding the above, each of the Master
Servicer and the Special Servicer may appoint Sub-Servicers in accordance with
Section 8.4 hereof, provided that the Master Servicer or the Special Servicer
remains fully liable for their actions, agents or independent contractors
appointed or retained to perform select duties thereof.
SECTION 8.26. LIMITATION ON LIABILITY OF MASTER SERVICER,
SPECIAL SERVICER AND OTHERS.
(a) None of the Master Servicer, the Special Servicer or any
of their respective directors, officers, employees or agents shall be under any
liability to the holders of the Certificates, the Trust or any other party for
any action taken or for refraining from the taking of any action in good faith
or for errors in reasonable judgment; provided that this provision shall not
protect the Master Servicer, the Special Servicer or any such Person against any
breach of a representation, warranty or covenant contained herein or any
liability that would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in its performance of duties under this Agreement or by
reason of negligent disregard of obligations and duties hereunder. The Master
Servicer, the Special Servicer and any director, officer, employee or agent of
the Master Servicer or the Special Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. Neither the Master Servicer nor the
Special Servicer shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its duties under this Agreement;
provided that the Master Servicer and the Special Servicer each may in its sole
discretion undertake any such action that it may reasonably deem necessary or
desirable in order to protect the interests of the Certificateholders and the
Trustee in the Mortgage Loans for which it is responsible hereunder or otherwise
under this Agreement. In such event, all legal expenses and costs of such action
shall be expenses and costs of the Trust, and the Master Servicer or the Special
Servicer, as applicable, shall be entitled to be reimbursed therefor as
Servicing Advances as provided by Section 5.2.
(b) In addition, neither the Master Servicer nor the Special
Servicer shall have any liability with respect to, and each shall be entitled to
conclusively rely as to the truth of the statements made and the correctness of
the opinions expressed therein on, any certificates or opinions furnished to the
Master Servicer or the Special Servicer, as the case may be, and conforming to
the requirements of this Agreement. Subject to the Servicing Standard, the
Master and the Special Servicer each shall have the right to rely on information
provided to it by the other (unless the Master Servicer and the Special Servicer
are the same party) and by the Mortgagors, and will have no duty to investigate
or verify the accuracy thereof.
(c) Neither the Master Servicer nor the Special Servicer shall
be obligated to incur any liabilities, costs, charges, fees or other expenses
that relate to or arise from any breach of any representation, warranty or
covenant made by the Depositor, the Fiscal Agent or Trustee in this Agreement.
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SECTION 8.27. INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer, the Special Servicer and each of
their respective directors, officers, employees and agents shall be indemnified
by the Trust and held harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
relating to this Agreement, the Certificates or any asset of the Trust Fund,
other than any loss, liability or expense: (i) specifically required to be borne
by such Person pursuant to the terms hereof; (ii) that constitutes a Servicing
Advance (and is otherwise specifically reimbursable hereunder); (iii) that was
incurred in connection with claims against such party resulting from (A) any
breach of a representation, warranty or covenant made herein by such party, (B)
willful misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder by such party, or from negligent disregard of such
obligations or duties, or (C) any violation by such party of any state or
federal securities law; or (iv) imposed by any taxing authority if such loss,
liability or expense is not specifically reimbursable pursuant to the terms of
this Agreement. Each of the Master Servicer and the Special Servicer shall
promptly notify the Trustee if a claim is made by a third party with respect to
this Agreement, the Certificates or any asset of the Trust Fund entitling the
Master Servicer or the Special Servicer, as the case may be, to indemnification
hereunder, whereupon the Trustee, on behalf of the Trust, shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer or the Special Servicer, as applicable) and pay out of the Collection
Account all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy out of the Collection Account any judgment
or decree that may be entered against it or them in respect of such claim. Any
failure to so notify the Trustee shall not affect any rights the Master Servicer
or the Special Servicer may have to indemnification under this Agreement or
otherwise, unless the Trust's defense of such claim is prejudiced thereby and
the Trustee delivers a certification explaining the prejudice. The Trustee or
the Master Servicer shall promptly make from the Collection Account any payments
certified by the Master Servicer or the Special Servicer to the Trustee as
required to be made to the Master Servicer or the Special Servicer, as the case
may be, pursuant to this Section 8.27(a). The indemnification provided herein
shall survive the resignation or termination of the Master Servicer or the
Special Servicer.
(b) The Master Servicer agrees to indemnify the Trust, the
Trustee, the Fiscal Agent, the Special Servicer (if different than the Master
Servicer), the Depositor, and any director, officer, employee or agent thereof,
and hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder (unless such
claim, loss, penalty, fine, forfeiture, legal fee and related cost or judgment
results from the willful misfeasance, bad faith or negligence of such
indemnified party), and if in any such situation the Master Servicer is
replaced, the parties hereto agree that the amount of such claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and other
costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor Master Servicer. Each of the Trustee,
the Depositor, the Special Servicer (if different than the Master Servicer), and
the Fiscal Agent shall immediately notify the Master Servicer if a claim is made
by a third party with respect to this Agreement, the Certificates or any asset
of the Trust Fund entitling the Trust, the Trustee, the Depositor, the Special
Servicer or the Fiscal Agent, as the case may be, to indemnification hereunder,
whereupon the Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Trustee, the Depositor, the Special
Servicer, or the Fiscal Agent, as applicable) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree that may be entered against it or them in
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respect of such claim. Any failure to so notify the Master Servicer shall not
affect any rights the Trust, the Trustee, the Depositor, Special Servicer, or
the Fiscal Agent may have to indemnification under this Agreement or otherwise,
unless the Master Servicer's defense of such claim is materially prejudiced
thereby and the Master Servicer delivers a certification explaining the
prejudice. The indemnification provided herein shall survive the termination of
this Agreement and the resignation or termination of the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent.
(c) The Special Servicer agrees to indemnify the Trust, the
Trustee, the Fiscal Agent, the Master Servicer (if different than the Special
Servicer), the Depositor, and any director, officer, employee or agent thereof,
and hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the Special Servicer's duties hereunder or by reason of negligent
disregard of the Special Servicer's obligations and duties hereunder by the
Special Servicer (unless such claim, loss, penalty, fine, forfeiture, legal fee
and related cost or judgment results from the willful misfeasance, bad faith or
negligence of such indemnified party). Each of the Trustee, the Fiscal Agent,
the Master Servicer (if different than the Special Servicer) and the Depositor
shall immediately notify the Special Servicer if a claim is made by a third
party with respect to this Agreement, the Certificates or any asset of the Trust
Fund entitling the Trust or the Trustee, the Fiscal Agent, the Master Servicer
or the Depositor, as the case may be, to indemnification hereunder, whereupon
the Special Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the Fiscal Agent, the Master Servicer or
the Depositor, as applicable) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree that may be entered against it or them in respect of such claim. Any
failure to so notify the Special Servicer shall not affect any rights the Trust,
the Trustee, the Fiscal Agent, the Master Servicer or the Depositor may have to
indemnification under this Agreement or otherwise, unless the Special Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or termination of the Special Servicer, the Master Servicer, the
Trustee and the Fiscal Agent.
SECTION 8.28. TAX REPORTING. From and after the Closing Date,
the Special Servicer shall comply with the Mortgagor tax reporting requirements
imposed by Sections 6050H, 6050J and 6050P of the Code and any similar tax
reporting obligations under State law with respect to any Specially Serviced
Mortgage Loan. The Special Servicer shall provide to the Master Servicer copies
of any such reports. The Master Servicer shall forward such reports to the
Trustee.
SECTION 8.29. CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, in the case of any Specially
Serviced Mortgage Loans will deliver, at such times as are set forth in Section
8.14(f), the reports set forth in Section 8.14(f), and will include a Specially
Serviced Loan Detail Report, which shall contain a narrative description for
each Specially Serviced Mortgage Loan of the current status of such Mortgage
Loan. The Special Servicer will also deliver any additional reports as may be
reasonably agreed upon by the Operating Adviser and the Special Servicer for a
reasonable fee payable by the Operating Adviser.
(b) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination with
respect to any Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and the Operating Adviser (or if no
Operating Adviser has
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been elected, the Majority Certificateholder of the Controlling Class) no later
than the tenth Business Day following such Final Recovery Determination.
(c) In addition, no later than 30 days after a Servicing
Transfer Event for a Mortgage Loan, the Special Servicer shall deliver to the
Master Servicer, each Rating Agency and the Operating Adviser (or if no
Operating Adviser has been elected, the Majority Certificateholder of the
Controlling Class) a report (the "Asset Status Report") with respect to such
Mortgage Loan and the related Mortgaged Property. Such Asset Status Report shall
set forth the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and any negotiations with the related Mortgagor;
(ii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iii) upon receipt of an Appraisal, the Appraised Value
of the Mortgaged Property together with the assumptions used
in the calculation thereof; and
(iv) such other information as the Special Servicer
deems relevant in light of the Servicing Standard.
(d) The Special Servicer will provide a summary of whether it
intends to foreclose or work out the Mortgage Loan.
SECTION 8.30. QUALIFICATION TO SERVICE. The Master Servicer
and the Special Servicer shall each keep in full force and effect such
qualifications to do business and any necessary licenses as are necessary to
perform its duties under this Agreement.
SECTION 8.31. SALE OF DEFAULTED MORTGAGE LOANS AND REO
PROPERTIES.
(a) The Special Servicer may offer to sell for cash to any
Person any REO Property or Defaulted Mortgage Loan. In the case of REO Property,
the Special Servicer shall offer to sell such REO Property no later than the
time determined by the Special Servicer to be sufficient to result in the sale
of such REO Property on or prior to the date specified in Section 8.19(a), and
in any event prior to the Rated Final Distribution Date. The Special Servicer
shall give the Operating Adviser and the Trustee not less than five days' prior
written notice of its intention to sell any such Defaulted Mortgage Loan or REO
Property, and in respect of such sale, the Special Servicer shall offer such
Defaulted Mortgage Loan or REO Property for sale in a fair auction or other
manner as is consistent with the Servicing Standard and shall accept the highest
cash bid received in such auction or other procedure from any Person other than
an Interested Person for any Defaulted Mortgage Loan or REO Property in an
amount, except as otherwise provided in this Section, at least equal to the
Purchase Price therefor.
In the absence of a bid in an amount at least equal to the
Purchase Price (after deducting allocable expenses), the Special Servicer shall
accept the highest cash bid received from any Person other than any Interested
Person or the Trustee in its individual capacity, unless the Special Servicer
has received other bids, the Interested Party's bid is the highest bid, and the
Special Servicer determines that acceptance of such bid is in the best interest
of the Certificateholders.
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The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest cash bid if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such bid would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower bid (including a bid lower
than the Purchase Price) if it determines, in accordance with the Servicing
Standard, that acceptance of such bid would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower bid
is more likely to perform its obligations, or the terms offered by the
prospective buyer making the lower bid are more favorable). The Special Servicer
shall determine no later than six months prior to the end of the REO Sale
Deadline with respect to any REO Property whether a sale of such REO Property
pursuant to any bids being made with respect thereto is in the best economic
interests of the Certificateholders as a whole. If the Special Servicer so
determines in accordance with the Servicing Standard that such a sale would not
be in the best interests of the Certificateholders, the Special Servicer shall
seek an extension of such period in the manner described in Section 8.19.
(b) Subject to the REMIC Provisions, the Special Servicer
shall act on behalf of the Trust in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, including the collection of all amounts payable in
connection therewith. Any sale of a Defaulted Mortgage Loan or REO Property
shall be without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Special Servicer, the Master Servicer, or the Trust. None of the
Special Servicer, the Master Servicer, the Depositor, the Fiscal Agent or the
Trustee shall have any liability to the Trust or any Certificateholder with
respect to the price at which a Defaulted Mortgage Loan is sold if the sale is
consummated in accordance with the terms of this Agreement.
(c) The proceeds of any sale after deduction of the expenses
of such sale incurred in connection therewith shall be deposited within one
Business Day in the Collection Account.
(d) Notwithstanding anything herein to the contrary, the
Special Servicer shall not be required to take or refrain from taking any action
pursuant to instructions from (or which require the approval of) the Operating
Adviser that would cause it to violate any term or provision of this Agreement,
the REMIC Provisions or the Servicing Standard.
SECTION 8.32. OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 8.32(c), the Holders of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to elect an operating adviser (the
"OPERATING ADVISER") with the powers set forth in Section 8.33. An election of
an Operating Adviser may also be held upon the resignation or removal of any
Person acting as Operating Adviser. The initial election of an Operating Adviser
may be held at any time on or after the Closing Date.
(b) At the request of the Holders of Certificates representing
at least 50% of the Class Principal Balance of the Controlling Class, the
Trustee shall call a meeting of the Holders of the Controlling Class for purpose
of electing an Operating Adviser. Notice of the meeting shall be mailed or
delivered by the Trustee to each Holder of Certificates of the Controlling Class
not less than 10 nor more than 60 days prior to the meeting. The notice shall
state the place and the time of the meeting, which may be held by telephone.
Holders of Certificates representing a majority of the Class Principal Balance
of the Controlling Class, present in person or represented by proxy, shall
constitute a quorum for the nomination of an Operating Adviser. At the meeting,
each Holder shall be entitled to nominate one
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Person to act as Operating Adviser. The Trustee shall cause the election of the
Operating Adviser to be held as soon thereafter as is reasonably practicable.
(c) Each Holder of Certificates of the Controlling Class shall
be entitled to vote in each election of the Operating Adviser. The voting in
each election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Trustee on or prior to
the date of such election. Immediately upon receipt by the Trustee of votes
(which have not been rescinded) from the Holders of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class which are
cast for a single Person, such Person shall be, upon such Person's acceptance,
the Operating Adviser. The Trustee shall act as judge of each election and,
absent manifest error, the determination of the results of any election by the
Trustee shall be conclusive. Notwithstanding any other provisions of this
Section 8.32, the Trustee may make such reasonable regulations as it may deem
advisable for any election.
(d) The Operating Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Trustee, of the Holders
of the Certificates representing more than 50% of the Class Principal Balance of
the Controlling Class.
(e) For purposes of electing or removing an Operating Adviser,
Certificates of the Controlling Class held by the Depositor, the Master Servicer
or the Special Servicer or by any Affiliate of any of them shall be taken into
account with the same force and effect as if any other Person held such
Certificates.
SECTION 8.33. DUTIES OF OPERATING ADVISER.
(a) If an Operating Adviser has been elected and is currently
acting in such capacity, then, at least five days prior to the Special
Servicer's taking any of the following actions, the Special Servicer shall
notify such Operating Adviser of its intention to take such action:
(i) any foreclosure upon or comparable conversion
(which may include acquisition of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default;
(ii) any modification of a Money Term of a Mortgage
Loan (other than a modification consisting of the extension of the
original Maturity Date of such Mortgage Loan for two years or less);
(iii) any sale of a Defaulted Mortgage Loan or REO
Property pursuant to Section 8.31;
(iv) any determination to bring a Mortgaged Property
or an REO Property into compliance with Environmental Laws; and
(v) any acceptance of substitute or additional
collateral for a Mortgage Loan.
(b) The Operating Adviser, if any, may direct the Trustee to
remove the Special Servicer at any time effective upon the appointment and
written acceptance of such appointment by a successor to the Special Servicer
appointed by the Operating Adviser; provided that, prior to the
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effectiveness of any such appointment the Operating Adviser and the Trustee
shall have received: (i) Rating Agency Confirmation; and (ii) an Opinion of
Counsel (which shall not be an expense of the Trustee or Trust) to the effect
that this Agreement shall be enforceable against the designated successor in
accordance with its terms. The existing Special Servicer shall be deemed to have
resigned simultaneously with such designated successor's becoming the Special
Servicer hereunder; provided, however, that (i) the resigning Special Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the effective date of such resignation,
whether in respect of Servicing Advances or otherwise, and (ii) it and its
directors, officers, employees and agents shall continue to be entitled to the
benefits of Sections 8.26 and 8.27, notwithstanding any such resignation. Such
resigning Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the termination of the resigning Special
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been deposited in the Collection Account or delivered by the Special
Servicer to the Master Servicer or that are thereafter received with respect to
Specially Serviced Mortgage Loans and REO Properties.
SECTION 8.34. EXCHANGE ACT REPORTING. The Trustee shall, at
the Trustee's expense, prepare for filing, execute and properly file with the
Securities and Exchange Commission, any and all reports, statements and
information, including, without limitation Form 10-K, Form 10-Q and Form 8-K,
respecting the Trust Fund and/or the Certificates required or specifically
provided herein to be filed on behalf of the Trust under the Exchange Act. The
Master Servicer and the Special Servicer shall provide any items required to be
delivered by either of them under this Agreement in a format acceptable to the
Trustee for electronic filing via the EDGAR system (in addition to any other
required format). The Trustee shall, at the Trustee's expense, seek from the
Securities and Exchange Commission a no-action letter or other exemptive relief
relating to reduced reporting requirements in respect of the Trust under the
Exchange Act and shall, in accordance with and to the extent permitted by
applicable law, file a Form 15 relating to automatic termination of reporting in
respect of the Trust under the Exchange Act.
SECTION 8.35. AUTOMATIC RESIGNATION OF MASTER SERVICER AND
SPECIAL SERVICER IN CONNECTION WITH AN ADVERSE RATING EVENT.
(a) The Master Servicer or the Special Servicer, as the case
may be, shall be required to immediately resign upon the occurrence of any one
or more of the following events (an "Adverse Rating Event"):
(i) any of the outstanding ratings on any Class of
Certificates is downgraded or withdrawn due to the acts, omissions or
circumstances of or involving the Master Servicer or the Special
Servicer, as the case may be, acting in such capacity;
(ii) either Rating Agency places its ratings of any
Class of Certificates on a "watch" status in contemplation of a ratings
downgrade or withdrawal due to the acts, omissions or circumstances of
or involving the Master Servicer or the Special Servicer, as the case
may be, acting in such capacity, and the Master Servicer or Special
Servicer, as applicable, shall not have resolved all such matters to
the satisfaction of such Rating Agency within ninety (90) days
thereafter, except that such cure period shall not continue beyond the
end of the cure period described in clause (iv) below;
(iii) the Master Servicer or the Special Servicer,
as the case may be, is no longer "approved" by either Rating Agency to
act in such capacity for pools of mortgage loans
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similar to the Mortgage Pool with ratings similar to that of the
Certificates and the Master Servicer or Special Servicer, as
applicable, shall not have resolved all such matters to the
satisfaction of such Rating Agency within ninety (90) days thereafter;
and
(iv) Moody's shall provide written notice to the
Trustee that, unless the Master Servicer or the Special Servicer, as
applicable, resigns, it will place its ratings on one or more Classes
of Certificates on a "watch" status in contemplation of a ratings
downgrade or withdrawal due to the acts, omissions or circumstances of
or involving the Master Servicer or the Special Servicer, as the case
may be, acting in such capacity and the Master Servicer or Special
Servicer, as applicable, shall not have resolved all such matters to
Moody's satisfaction within ninety (90) days.
(b) No resignation pursuant to this Section 8.35 shall become
effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party hereunder in accordance
with Section 9.2, and provided, further, that if the Master Servicer or the
Special Servicer, whichever is the cause for the actual or prospective Adverse
Rating Event, fails to resign, then the Trustee shall terminate such party
hereunder in the manner and with the effect specified in Section 9.1 as if an
uncured Event of Default then existed with respect to such party.
(c) The cure periods provided to the Master Servicer and the
Special Servicer pursuant to Section 8.35 (a)(ii), (iii) and (iv) may be
extended by the applicable Rating Agency so long as such Rating Agency provides
its consent to such extension in writing to the Trustee.
ARTICLE IX.
DEFAULT
SECTION 9.1. EVENTS OF DEFAULT.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make a
required deposit to the Collection Account which continues unremedied
for one Business Day following the date on which such deposit was first
required to be made, or (B) any failure by the Master Servicer to
deposit into, or to remit to the Trustee for deposit into, the
Distribution Account any amount required to be so deposited or
remitted, which failure is not remedied by 3:00 p.m. (New York City
time) on the relevant Master Servicer Remittance Date; or
(ii) any failure by the Special Servicer to deposit
into, or to remit to the Master Servicer for deposit into, the
Collection Account any amount required to be so deposited or remitted
under this Agreement which failure continues unremedied for one
Business Day following the date on which such deposit or remittance was
first required to be made; or
(iii) any failure by the Master Servicer or the
Special Servicer to timely make any Servicing Advance required to be
made by it pursuant to this Agreement which continues unremedied for a
period ending on the earlier of (A) 15 days following the date such
Servicing Advance was first required to be made, and (B) either, if
applicable, (1) in the case of a Servicing
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Advance relating to the payment of insurance premiums, the day on which
such insurance coverage terminates if such premiums are not paid or (2)
in the case of a Servicing Advance relating to the payment of real
estate taxes, the date of the commencement of a foreclosure action with
respect to the failure to make such payment; or
(iv) any failure on the part of the Master Servicer
or the Special Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Master Servicer or the Special Servicer contained in this Agreement
which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by the Trustee or the Depositor, or to
the Master Servicer or the Special Servicer, as the case may be, the
Depositor and the Trustee by the Holders of Certificates entitled to
not less than 25% of the Voting Rights; or
(v) any breach on the part of the Master Servicer or
the Special Servicer of any representation or warranty contained in
this Agreement which materially and adversely affects the interests of
any Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by the Trustee or
the Depositor, or to the Master Servicer or the Special Servicer, as
the case may be, the Depositor and the Trustee by the Holders of
Certificates entitled to not less than 25% of the Voting Rights; or
(vi) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(vii) the Master Servicer or the Special Servicer
shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(viii) the Master Servicer or the Special Servicer
shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(ix) the Trustee shall have received written notice
from either Rating Agency that the continuation of the Master Servicer
or the Special Servicer in such capacity would result in the downgrade,
qualification (which shall not include a "negative" credit watch) or
withdrawal of any rating then assigned by such Rating Agency to any
Class of Certificates
(b) If any Event of Default with respect to the Master
Servicer or the Special Servicer (in either case for purposes of this Section
9.1(b), the "DEFAULTING PARTY") shall occur and be
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continuing, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Depositor or the Trustee may
terminate, and at the written direction of the Holders of Certificates entitled
to at least 25% of the Voting Rights, the Trustee shall terminate, by notice in
writing to the Defaulting Party, with a copy of such notice to the Depositor (if
the termination is effected by the Trustee) or to the Trustee (if the
termination is effected by the Depositor), all of the rights and obligations of
the Defaulting Party under this Agreement and in and to the Mortgage Loans and
the proceeds thereof (other than any rights of the Defaulting Party as
Certificateholder and for recovery of amounts due the Defaulting Party out of
the proceeds of the Mortgage Loans). From and after the receipt by the
Defaulting Party of such written notice, all authority and power of the
Defaulting Party under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section,
and, without limitation, the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agrees that if it
is terminated pursuant to this Section 9.1(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested by the
Trustee to enable it or a successor servicer to assume the Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee in effecting the termination of the Master Servicer's or
Special Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
Trustee or a successor servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the Master Servicer or
the Special Servicer, as the case may be, to the Collection Account, the
Distribution Account or any Servicing Account or thereafter be received with
respect to the Mortgage Loans or any REO Property (provided, however, that the
Master Servicer and the Special Servicer each shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of Advances (together with
Advance Interest thereon) made by it or otherwise, and it and its directors,
officers, employees and agents shall continue to be entitled to the benefits of
Sections 8.26 and 8.27 notwithstanding any such termination).
SECTION 9.2. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. On and
after the time the Master Servicer or the Special Servicer receives a notice of
termination pursuant to Section 9.1, the Trustee shall be the successor in all
respects to the Master Servicer or the Special Servicer, as the case may be, in
its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities (except for liabilities incurred prior to the Event of Default)
relating thereto and arising thereafter placed on the Master Servicer or the
Special Servicer, as the case may be, by the terms and provisions hereof,
including, without limitation, the Master Servicer's obligation to make P&I
Advances; provided that any failure to perform such duties or responsibilities
caused by the Master Servicer's or the Special Servicer's failure to provide
information or monies required by Section 9.1 shall not be considered a default
by the Trustee hereunder. The Trustee shall not be liable for any of the
representations and warranties of the Master Servicer or the Special Servicer
and the Trustee shall not be required to purchase any Mortgage Loan hereunder.
As compensation therefor, the Trustee shall be entitled to the applicable
Servicing Fees and all funds relating to the Mortgage Loans that the Master
Servicer or the Special Servicer would have been entitled to charge to the
Collection Account if the Master Servicer or the Special Servicer had continued
to act hereunder. Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in
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writing to the Trustee or if it is not appropriately rated as an approved master
servicer or special servicer, as the case may be, by each Rating Agency,
promptly appoint, or petition a court of competent jurisdiction for the
appointment of, a mortgage loan servicing institution that has a net worth of
not less than $15,000,000 and is otherwise acceptable to each Rating Agency (as
evidenced by Rating Agency Confirmation), as the successor to the Master
Servicer or the Special Servicer, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or the Special Servicer. No appointment of a successor to
the Master Servicer or the Special Servicer hereunder shall be effective until
the assumption by the successor to the Master Servicer or the Special Servicer
of all the responsibilities, duties and liabilities of the Master Servicer or
the Special Servicer, as the case may be, hereunder. Pending appointment of a
successor to the Master Servicer or the Special Servicer hereunder, the Trustee
shall act in such capacity as hereinabove provided and shall be entitled to such
compensation as would otherwise have been payable to the Master Servicer or the
Special Servicer, as the case may be. In connection with any such appointment
and assumption described herein, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans or otherwise as
it and such successor shall agree; provided, however, that no such compensation
shall be in excess of that permitted the resigning or terminated party
hereunder. The Depositor, the Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
SECTION 9.3. NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 8.24, any termination of the Master Servicer or the
Special Servicer pursuant to Section 9.1 or any appointment of a successor to
the Master Servicer or the Special Servicer pursuant to Section 9.2, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five days after the Trustee
discovers or is notified of the occurrence of such an event, the Trustee shall
transmit by mail to the Depositor and all Certificateholders notice of such
occurrence, unless such default shall have been cured.
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SECTION 9.4. WAIVER OF EVENTS OF DEFAULT. The Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
respective Classes of Certificates affected by any Event of Default hereunder
may waive such Event of Default; provided, however, that an Event of Default
under clause (i) or (ii) of Section 9.1(a) may be waived only by all of the
Certificateholders. Upon any such waiver of an Event of Default, such Event of
Default shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder; provided, however, that the Trustee shall be entitled to
reimbursement pursuant to Section 7.12 for any costs and expenses incurred as a
result of such Event of Default. No such waiver shall extend to any subsequent
or other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this Section
9.4, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor shall be entitled to the same Voting Rights with respect to the
matters described above as they would if any other Person held such
Certificates.
ARTICLE X.
PURCHASE AND TERMINATION OF THE TRUST
SECTION 10.1. TERMINATION OF TRUST.
(a) Subject to Section 10.3, the Trust and the respective
obligations and responsibilities of the Depositor, the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent hereunder (other than the
obligation of the Trustee to make payments to Certificateholders on the final
Distribution Date pursuant to Section 6.4 or otherwise as set forth in Section
10.2 and other than the obligations in the nature of information or tax
reporting or tax-related administrative or judicial contests or proceedings)
shall terminate on the earlier of (i) the later of (A) the final payment or
other liquidation of the last Mortgage Loan held by the Trust and (B) the
disposition of the last REO Property held by the Trust and (ii) the sale of all
Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b); provided that in no event shall the Trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late Ambassador of the United
States to the Court of St. James, living on the date hereof.
(b) As soon as reasonably practical, the Trustee shall give
the Depositor, the Master Servicer, the Special Servicer, the Majority
Certificateholder of the Controlling Class and the Class R-I Certificateholders
notice of the date when the aggregate Certificate Principal Balance of the
Principal Balances Certificates, after giving effect to distributions of
principal made on the next Distribution Date, will be less than or equal to 1%
of the Initial Pool Balance. The Depositor, the Master Servicer, the Special
Servicer, the majority holders of the Controlling Class and the Holders of Class
R-I Certificates representing a majority Percentage Interest in such Class shall
thereafter be entitled, in that order of priority, to purchase, in whole only,
the Mortgage Loans and any REO Properties then remaining in the Trust Fund. If
any such party desires to exercise such option, it will notify the Trustee who
will notify any other such party with a prior right to exercise such option. If
any such party that has been so provided notice by the Trustee notifies the
Trustee within ten Business Days after receiving notice of the proposed purchase
that it wishes to purchase the assets of the Trust, then such party (or, in the
event that more than one of such parties notifies the Trustee that it wishes to
purchase the assets of the Trust, the party with the first right to purchase the
assets of the Trust) may purchase the assets of the Trust in accordance with
this Agreement. The "TERMINATION PRICE" shall equal the greater of (x) the sum
of (i) the aggregate Purchase Price of all the remaining Mortgage Loans (other
than REO Mortgage Loans and Mortgage Loans as to which a Final Recovery
Determination has been made) held by the Trust, plus
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(ii) the appraised value of each remaining REO Property, if any, held by the
Trust (such appraisal to be conducted by a Qualified Appraiser selected by the
Master Servicer and approved by the Trustee), minus (iii) solely in the case
where the Master Servicer is effecting such purchase, the aggregate amount of
unreimbursed Advances made by the Master Servicer, together with any Advance
Interest accrued and payable to the Master Servicer in respect of such Advances
and any unpaid Master Servicing Fees remaining outstanding (which items shall be
deemed to have been paid or reimbursed to the Master Servicer in connection with
such purchase) (or, solely in the case where the Special Servicer is effecting
such purchase, the aggregate amount of unreimbursed Servicing Advances made by
the Special Servicer, together with any Advance Interest accrued and payable to
the Special Servicer in respect of such Servicing Advances and any unpaid
Special Servicing Fees remaining outstanding (which items shall be deemed to
have been paid or reimbursed to the Special Servicer in connection with such
purchase); (y) the fair market value of all remaining assets of REMIC I and the
grantor trust; and (z) the amount that would be sufficient to pay the
outstanding Certificate Principal Balance of each Class of Certificates,
Distributable Certificate Interest thereon, and Distributable Certificate
Interest on the Class X Certificates for the final Distribution Date.
In the event that the Depositor, the Master Servicer, the
Special Servicer, the Majority Certificateholder of the Controlling Class or the
Holders of Class R-I Certificates representing a majority Percentage Interest in
such Class purchase all of the remaining Mortgage Loans and REO Properties held
by the Trust in accordance with the preceding paragraph, the party effecting
such purchase (the "FINAL PURCHASER") shall (i) deposit in the Collection
Account not later than the Determination Date relating to the Distribution Date
on which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the Termination Price (other than the
amount, if any, of such Termination Price paid in respect of the assets of the
grantor trust, which amount shall be paid to the Trustee for deposit in the
Excess Interest Distribution Account) and (ii) deliver notice to the Trustee of
its intention to effect such purchase. Upon confirmation that such deposit has
been made, the Trustee shall release or cause to be released to the Final
Purchaser or its designee the Mortgage Files for the remaining Mortgage Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by the Final Purchaser as shall be necessary to effectuate transfer of the
remaining Mortgage Loans and REO Properties held by the Trust, in each case
without representation or warranty by the Trustee. All Servicing Files for the
remaining Mortgage Loans and REO Properties shall be delivered to the Final
Purchaser or its designee at the expense of the Final Purchaser.
(c) As a condition to the purchase of the assets of the Trust
pursuant to Section 10.1(b), the Final Purchaser must deliver to the Trustee an
Opinion of Counsel, which shall be at the expense of the Final Purchaser,
stating that such termination will be a "qualified liquidation" under Section
860F(a)(4) of the Code of each of REMIC I, REMIC II and REMIC III. Such purchase
shall be made in accordance with Section 10.3.
SECTION 10.2. PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of
Section 10.1, specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Trustee to each Rating Agency and
each Certificateholder by first class mail no later than the later of (a) ten
days prior to the date of such termination and (b) the date the Trustee receives
notice of such termination. Such notice shall specify (A) the Distribution Date
upon which final distribution on the Certificates will be made and (B) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. The Trustee shall give
such notice to the Depositor and
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the Certificate Registrar at the time such notice is given to
Certificateholders. Upon any such termination, the Trustee shall terminate, or
request the Master Servicer to terminate, the Collection Account and the
Distribution Account and any other account or fund maintained with respect to
the Certificates, subject to the Trustee's obligation hereunder to hold all
amounts payable to the nontendering Certificateholders in trust without interest
pending such payment.
(b) On the final Distribution Date, the Trustee shall
distribute to each Certificateholder that presents and surrenders its
Certificates all amounts payable on such Certificates on such final Distribution
Date in accordance with Section 6.4.
(c) In the event that all of the Holders do not surrender
their Certificates for cancellation within three months after the time specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to contact
the nontendering Certificateholders concerning surrender of their Certificates,
and the cost thereof shall be paid out of the amounts distributable to such
Holders. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Trustee shall, subject to
applicable state law relating to escheat, hold all amounts distributable to such
Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section. Any money held by
the Trustee pending distribution under this Section 10.2 after 90 days after the
adoption of a plan of complete liquidation shall be deemed for tax purposes to
have been distributed from the REMICs and shall be beneficially owned by the
related Holder.
SECTION 10.3. ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) In the event of a purchase of all the remaining Mortgage
Loans and REO Properties held by the Trust in accordance with Section 10.1 or
any other termination of the Trust under this Article X, the Trust and each
REMIC Pool shall be terminated in accordance with the following additional
requirements, unless in the case of a termination under Section 10.1 hereof, the
Final Purchaser delivers to the Trustee an Opinion of Counsel at the expense of
the Final Purchaser (or, in the case of any other termination, the Trustee shall
obtain such Opinion of Counsel at the expense of the Trust Fund) addressed to
the Depositor and the Trustee to the effect that the failure of the Trust to
comply with the requirements of this Section 10.3 will not (i) result in the
imposition of taxes on "prohibited transactions" of any REMIC Pool under the
REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(i) within 89 days prior to the final Distribution
Date set forth in the notice given by the Trustee under Section 10.2,
the Trustee shall adopt a plan of complete liquidation prepared by the
Final Purchaser and meeting the requirements for a qualified
liquidation for each REMIC Pool under Section 860F of the Code and any
regulations thereunder;
(ii) during such 90-day liquidation period and at or
after the adoption of the plans of complete liquidation and at or prior
to the final Distribution Date, the Trustee shall sell all of the
remaining Mortgage Loans and any REO Properties held by the Trust to
the Final Purchaser for cash in an amount equal to the Termination
Price, such cash shall be deposited into the Collection Account, shall
be deemed distributed on the REMIC I Regular Interests in
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retirement thereof, shall be deemed distributed on the REMIC II Regular
Interests in retirement thereof, and shall be distributed to the
Certificateholders in retirement of the Certificates;
(iii) at the time of the making of the final payment
on the Certificates, the Trustee shall distribute or credit, or cause
to be distributed or credited, to the Holders of the related Class of
Residual Certificates all cash on hand in each REMIC Pool after making
such final deemed payment or payments (other than cash retained to meet
claims), and REMIC I, REMIC II and REMIC III shall terminate at that
time; and
(iv) in no event may the final payment on the REMIC
I Interests, the REMIC II Interests, the REMIC III Regular
Certificates, or the Class R-III Certificates be made after the 89th
day from the date on which such plans of complete liquidation are
adopted. The Trustee shall specify the first day of the 90-day
liquidation period in a statement attached to the final Tax Return for
each REMIC Pool pursuant to Treasury regulation 1.860F-1.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to adopt a plan of complete liquidation of
REMIC I, REMIC II and REMIC III in accordance with the foregoing requirements,
which authorization shall be binding upon all successor Certificateholders.
ARTICLE XI.
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1. LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer,
the Special Servicer or the operation and management of the Trust, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates entitled to not less than 25% of the Voting Rights shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the cost, 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 and no
direction inconsistent with such written request has been given the Trustee
during such 60-day period by such Certificateholders; it being understood and
intended, and being expressly
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covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.2. ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special
Servicer, the Master Servicer or three or more Holders (hereinafter referred to
as "applicants," with a single Person that (together with its Affiliates) is the
Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Trustee, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written communication
proffered by the applicants to all Certificateholders at their addresses as they
appear in the Certificate Register. The Depositor, the Master Servicer and the
Special Servicer may each obtain, upon request, from the Trustee and the
Certificate Registrar a copy of the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate,
agrees with the Depositor, the Certificate Registrar and the Trustee that
neither the Depositor, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
SECTION 11.3. ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Depositor, if made in
the manner provided in this Section. The Trustee agrees to promptly notify the
Depositor of any such instrument or instruments received by it, and to promptly
forward copies of the same.
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Trustee) shall be proved by the Certificate Register, and neither the Trustee
nor the Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Depositor in reliance thereon, whether or not notation of such
action is made upon such Certificate.
ARTICLE XII.
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC
Pool.
SECTION 12.1. REMIC ADMINISTRATION.
(a) An election will be made by the Trustee on behalf of the
Trust to treat the segregated pool of assets consisting of the Mortgage Loans
(other than the right to Excess Interest in respect of the Hyper-Amortization
Loans), such amounts as shall from time to time be held in the Collection
Account and the Distribution Account in respect thereof, the Insurance Policies
and any REO Properties and any other assets constituting REMIC I (as set forth
on the definition of REMIC I) as a REMIC under the Code. Such election will be
made on Form 1066 or other appropriate federal tax or information return or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the REMIC I Interests are issued. For purposes of such
election, each of the REMIC I Regular Interests shall be designated as a
separate class of "regular interests" in REMIC I and the Class R-I Certificates
shall be designated as the sole class of "residual interests" in REMIC I.
An election will be made by the Trustee on behalf of REMIC II
to treat the segregated pool of assets consisting of the REMIC I Regular
Interests as a REMIC under the Code. Such election will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the REMIC II Interests are issued. For the purposes of such election, the REMIC
II Regular Interests shall be designated as the "regular interests" in REMIC II
and the Class R-II Certificates shall be designated as the sole class of
"residual interests" in REMIC II.
An election will be made by the Trustee on behalf of REMIC III
to treat the segregated pool of assets consisting of the REMIC II Regular
Interests as a REMIC under the Code. Such election
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will be made on Form 1066 or other appropriate federal tax or information return
or any appropriate state return for the taxable year ending on the last day of
the calendar year in which the REMIC III Certificates are issued. For purposes
of such election, the Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, and Class N
Certificates, the Class O Regular Interest represented by the Class O
Certificates, and each Component Interest of the Class X Certificates shall be
designated as the "regular interests" in REMIC III and the Class R-III
Certificates shall be designated as the sole class of "residual interests" in
REMIC III.
The Trustee shall not permit the creation of any "interests"
(within the meaning of Treasury regulation Section 1.860D-1(b)(1)) in any of the
REMIC Pools other than the REMIC I Regular Interests, the REMIC II Regular
Interests and the interests evidenced by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day"
of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code. The
latest possible maturity date for the REMIC I Interests, the REMIC II Interests
and the REMIC III Certificates shall be the Rated Final Distribution Date.
The assets of the Trust Fund consisting of the right to any
Excess Interest in respect of the Hyper-Amortization Loans and the Excess
Interest Distribution Account shall be held by the Trustee for the benefit of
the Holders of the Class O Grantor Trust Interest represented by the Class O
Certificates, which Class O Certificates, in the aggregate, will evidence 100%
beneficial ownership of such assets (the "grantor trust assets") from and after
the Closing Date. It is intended that the portion of the Trust Fund consisting
of the grantor trust assets will be treated as a grantor trust for federal
income tax purposes, and each of the parties to this Agreement agrees that it
will not take any action that is inconsistent with establishing or maintaining
such treatment. The Trustee shall hold the grantor trust assets separate and
apart from the assets of REMIC I, REMIC II, and REMIC III.
(c) The Trustee shall pay all routine tax related expenses
(not including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool and the grantor trust, excluding any
professional fees or extraordinary expenses related to audits or any
administrative or judicial proceedings with respect to any REMIC Pool or the
grantor trust that involve the Internal Revenue Service or state tax
authorities.
(d) The Trustee shall cause to be prepared, signed, and timely
filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for each REMIC Pool and the
grantor trust on Internal Revenue Service Form SS-4. The Trustee, upon receipt
from the Internal Revenue Service of the Notice of Taxpayer Identification
Number Assigned, shall promptly forward a copy of such notice to the Depositor
and the Master Servicer. The Trustee shall prepare and file Form 8811 on behalf
of each REMIC Pool within 30 days after the Closing Date and shall designate an
appropriate Person to respond to inquiries by or on behalf of Certificateholders
for original issue discount and related information in accordance with
applicable provisions of the Code.
(e) The Trustee shall prepare, execute and file all of each
REMIC Pool's and the grantor trust's federal and state income or franchise tax
and information returns as such REMIC Pool's and the grantor trust's direct
representative; the expenses of preparing and filing such returns shall be borne
by the Trustee. The Depositor, the Master Servicer and the Special Servicer
shall each provide on a timely basis to the Trustee or its designee such
information with respect to the Trust or any REMIC Pool as is in the
Depositor's, the Master Servicer's or the Special Servicer's, as the case may
be, possession, that the Depositor, the Master Servicer or the Special Servicer,
as the case may be, has
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received or prepared by virtue of its acting in such capacity hereunder and that
is reasonably requested by the Trustee to enable it to perform its obligations
under this subsection, and the Trustee shall be entitled to conclusively rely on
such information in the performance of its obligations hereunder. The Depositor
shall indemnify the Trust, the Trustee and the Fiscal Agent for any liability or
assessment against any of them or any cost or expense (including attorneys'
fees) incurred by any of them resulting from any error in any of such tax or
information returns resulting from bad faith, negligence, or willful malfeasance
of the Depositor in providing any information for which the Depositor is
responsible for preparing. The Master Servicer and the Special Servicer shall
each indemnify the Trust, the Trustee, the Fiscal Agent and the Depositor for
any liability or assessment against the Trust, the Trustee, the Fiscal Agent or
the Depositor, as the case may be, and any expenses incurred in connection with
such liability or assessment (including attorney's fees) resulting from any
error in any of such tax or information returns resulting from errors in the
information provided by the Master Servicer or the Special Servicer, as the case
may be, caused by the negligence, willful misconduct or bad faith of the Master
Servicer or the Special Servicer, as the case may be. The Trustee shall be
liable to the Trust, the Master Servicer, the Special Servicer and the Depositor
for any expense incurred by the Trust, the Master Servicer, the Special Servicer
or the Depositor resulting from any error in any of such tax or information
returns resulting from errors in the preparation of such returns caused by the
negligence, willful misconduct or bad faith of the Trustee. Each indemnified
party shall immediately notify the indemnifying party or parties of the
existence of a claim for indemnification under this Section 12.1(e), and provide
the indemnifying party or parties, at the expense of such indemnifying party or
parties, an opportunity to contest the tax or assessment or expense giving rise
to such claim, provided that the failure to give such notification rights shall
not affect the indemnification rights in favor of the Trust under this Section
12.1(e). Any such indemnification shall survive the resignation or termination
of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent
and the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC Pool and
the grantor trust all reporting and other tax compliance duties that are the
responsibility of such REMIC Pool and the grantor trust under the Code, REMIC
Provisions, or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority. Among its other duties, the Trustee
shall provide (i) to the Internal Revenue Service or other Persons (including,
but not limited to, any Person that transferred a Residual Certificate to a
Disqualified Organization or to an agent that has acquired a Residual
Certificate on behalf of a Disqualified Organization) such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Disqualified Organization and (ii) to the Certificateholders
such information or reports as are required by the Code or REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of
quarterly and annual Tax Returns and Form 1099 information returns and such
other information within the control of the Trustee as the Depositor may
reasonably request in writing. Moreover, the Trustee shall forward to
Certificateholders such forms and furnish such information within its control as
are required by the Code to be furnished to them, shall prepare and file with
the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Trustee will make available to any Certificateholder any tax
related information required to be made available to such Certificateholder
pursuant to the Code and any Treasury Regulations thereunder.
(h) The Holder of Certificates representing the greatest
Percentage Interest in each Class of Residual Certificates shall be the Tax
Matters Person for the related REMIC Pool; provided that
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if Treasury Regulations shall be modified to require another Person to be
designated as Tax Matters Person, then such Person shall become Tax Matters
Person at such time. The duties of the Tax Matters Person for each of the REMIC
Pools are hereby delegated to the Trustee, and each Residual Certificateholder,
by acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the
Trustee as their agent and attorney in fact. If the Code or applicable Treasury
regulations prohibits the Trustee from signing any applicable Internal Revenue
Service, court or other administrative documents or from otherwise acting as Tax
Matters Person (as an agent or otherwise), the Trustee shall do or cause to be
done whatever is necessary for the signing of such documents and the taking of
any other such act, and the Residual Certificateholders shall reasonably
cooperate with the Trustee in connection therewith. The Trustee shall not be
required to expend or risk its own funds or otherwise incur any other financial
liability in the performance of its duties hereunder or in the exercise of any
of its rights or powers (except to the extent of the ordinary expenses of
performing its duties under, or as otherwise expressly provided in, this
Agreement), if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(i) The Trustee, the Holders of the Residual Certificates, the
Master Servicer and the Special Servicer shall each exercise reasonable care, to
the extent within its control, and with respect to each of the Trustee, the
Master Servicer and the Special Servicer, within the scope of its express
duties, and shall each act in accordance with this Agreement and the REMIC
Provisions, in order to create and maintain the status of each REMIC Pool as a
REMIC and the grantor trust assets as a grantor trust or, as appropriate, adopt
a plan of complete liquidation in accordance with the REMIC Provisions and
Article X hereof.
(j) The Trustee, the Master Servicer, the Special Servicer,
the Fiscal Agent and the Holders of Residual Certificates shall not take any
action or fail to take any action or cause any REMIC Pool to take any action or
fail to take any action if any of such Persons knows or could, upon the exercise
of reasonable diligence, know, that, under the REMIC Provisions, such action or
failure to act, as the case may be, could (i) endanger the status of any REMIC
Pool as a REMIC or (ii) result in the imposition of a tax upon any REMIC Pool
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code, the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code, or except as provided in Section 8.20(a) hereof,
result in the imposition of a tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code (any of the foregoing, an "ADVERSE REMIC
EVENT")), unless the Trustee has received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a tax.
Any action required under this Section which would result in an unusual or
unexpected expense shall be undertaken at the expense of the party seeking to
have the Trustee, the Master Servicer, the Special Servicer, the Fiscal Agent or
the Holders of the Residual Certificates undertake such action.
(k) In the event that any tax is imposed on the grantor trust
or on REMIC I, REMIC II or REMIC III, including, without limitation, "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to REMIC I, REMIC II or REMIC III after the
Startup Day pursuant to Section 860G(d) of the Code, and any other tax imposed
by the Code or any applicable provisions of state or local tax laws (other than
any tax permitted to be incurred by the Special Servicer pursuant to Section
8.20(a)), such tax, together with all incidental costs and expenses (including,
without limitation, penalties and reasonable attorneys' fees), shall be charged
to and paid by: (i) the Trustee, if such tax arises out of or results from a
breach of any of its obligations under this Article XII; (ii) the
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Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article VIII or this Article
XII; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article VIII or
this Article XII; or (iv) the Trust in all other instances. Any tax permitted to
be incurred by the Special Servicer pursuant to Section 8.20(a) shall be charged
to and paid by the Master Servicer (at the direction of the Trust) from the net
income generated on the related REO Property. Any such amounts payable by the
Trust in respect of taxes shall be paid by the Master Servicer (at the direction
of the Trustee) out of amounts on deposit in the Collection Account or, if
appropriate, out of collections of Excess Interest.
(l) The Trustee shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool on a calendar year
and on an accrual basis. The books and records shall be sufficient concerning
the nature and amount of each REMIC Pool's investments to show that such REMIC
Pool has complied with the REMIC Provisions.
(m) None of the Trustee, the Master Servicer or the Special
Servicer shall enter into any arrangement by which any REMIC Pool will receive a
fee or other compensation for services (other than under the circumstances
described in, and subject to the conditions of, Section 8.20(a)).
(n) In order to enable the Trustee to perform its duties as
set forth herein, the Depositor shall provide, or cause to be provided, to the
Trustee within ten (10) days after the Closing Date all information or data that
the Trustee reasonably determines to be relevant for tax purposes on the
valuations and offering prices of the Certificates, including, without
limitation, the yield, Prepayment Assumption, Issue Prices and projected cash
flows of the Senior Certificates, Subordinate Certificates and Residual
Certificates, as applicable, and the projected cash flows of the Mortgage Loans.
Thereafter, the Depositor shall provide to the Trustee or its designee, promptly
upon request therefor, any such additional information or data within the
Depositor's possession or knowledge that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Trustee is hereby directed to use any and all such information
or data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
and the grantor trust to Certificateholders as required herein. The Depositor
hereby indemnifies the Trustee, the Fiscal Agent and each REMIC Pool for any
losses, liabilities, damages, claims, expenses (including attorneys' fees) or
assessments against the Trustee, the Fiscal Agent and each REMIC Pool arising
from any errors or miscalculations of the Trustee pursuant to this Section that
result from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trustee (but not resulting from the
methodology employed by the Trustee) on a timely basis and such indemnification
shall survive the termination of this Agreement and the termination or
resignation of the Trustee or Fiscal Agent; provided, however, that to the
extent that any Certificates have been transferred to a Seller under
circumstances in which the fair market value of such Certificates is their issue
price, the Depositor may exclusively rely on the accuracy of a determination of
such fair market value by such Seller in supplying information to the Trustee
pursuant to this Section 12.1(n).
The Trustee agrees that all such information or data so
obtained by it is to be regarded as confidential information and agrees that it
shall use its best reasonable efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section 12.1
(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
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professional advisers of the Trustee and its parent, or (ii) in connection with
enforcing its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Trustee,
the Master Servicer and the Special Servicer each shall, to the extent within
its control and the scope of its duties more specifically set forth herein,
maintain the assets of each REMIC Pool as "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code, subject to the "de minimis" exception of Treasury
Regulation Section 1.860D-1(b)(3).
(p) the Holders of the Class R-I, Class R-II and Class R-III
Certificates shall pay when due their pro rata share of any and all federal,
state and local taxes imposed on REMIC I, REMIC II or REMIC III, as applicable,
or their respective assets or transactions, including, without limitation,
"prohibited transaction" taxes, as defined in Section 860F of the Code, any tax
on contributions imposed by Section 860G(d) of the Code, and any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code. To
the extent that such taxes are not paid by the Class R-I, Class R-II or Class
R-III Certificateholders, respectively, the Trustee shall pay such remaining
REMIC taxes out of current or future amounts otherwise distributable to the
respective Holder or, if no such amounts are available, out of other amounts
held in the Distribution Account.
SECTION 12.2. PROHIBITED TRANSACTIONS AND ACTIVITIES. None of
the Trustee, the Master Servicer or the Special Servicer shall, to the extent
within its control, permit the sale, disposition or substitution of any of the
Mortgage Loans (except in a disposition pursuant to (i) the foreclosure, default
or imminent default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any
REMIC Pool, (iii) the termination of the REMIC Pools in a "qualified
liquidation" as defined in Section 860F(a)(4) of the Code, or (iv) a repurchase
or substitution by any Seller, as contemplated by Article II hereof), nor
acquire any assets for the Trust, except as provided herein, nor sell or dispose
of any investments in the Collection Account or Distribution Account for gain,
nor accept any contributions to any REMIC Pool (other than a cash contribution
during the 3-month period beginning on the Startup Day), unless it has received
an Opinion of Counsel (at the expense of the Person requesting such action) to
the effect that such sale, disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of any REMIC Pool as a REMIC or of the
REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC III Regular
Certificates or the Component Interests of the Class X Certificates, as the case
may be, as the regular interests therein, (b) affect the distribution of
interest or principal on the Certificates, (c) result in the encumbrance of the
assets transferred or assigned to any REMIC Pool (except pursuant to the
provisions of this Agreement) or (d) cause any REMIC Pool to be subject to a tax
on "prohibited transactions" or "prohibited contributions" or other tax pursuant
to the REMIC Provisions.
SECTION 12.3. LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS
OF REMIC STATUS. In the event that any REMIC Pool fails to qualify as a REMIC,
loses its status as a REMIC, or incurs state or local taxes, or tax as a result
of a prohibited transaction or prohibited contribution subject to taxation under
the REMIC Provisions due to the negligent performance by the Trustee of its
duties and obligations set forth herein, the Trustee shall be liable to the
REMIC Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("LOSSES") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee shall not be liable pursuant to this Section 12.3 to the extent that
any such Losses are attributable to the action or inaction of the Master
Servicer, the Special Servicer, the Depositor or the Holders of such Residual
Certificates or to the extent that any such Losses result from any actions or
failures to act taken in reliance on an Opinion of Counsel or misinformation
provided by the Master
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Servicer, the Special Servicer, the Depositor or such Holders of the Residual
Certificates. The foregoing shall not be deemed to limit or restrict the rights
and remedies of the Trust or the Certificateholders under any other provision of
this Agreement or now or hereafter otherwise existing at law or in equity. The
Trustee shall be entitled to intervene in any litigation in connection with the
foregoing and to maintain control over its defense.
SECTION 12.4. MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the Master
Servicer nor the Special Servicer shall permit any modification of any Money
Term of a Mortgage Loan or a Specially Serviced Mortgage Loan unless the Trustee
and the Master Servicer have received a Nondisqualification Opinion or a ruling
to the same effect as a Nondisqualification Opinion from the Internal Revenue
Service (at the expense of the party making the request that the Master Servicer
or the Special Servicer modify the Mortgage Loan or a Specially Serviced
Mortgage Loan).
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. BINDING NATURE OF AGREEMENT. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
SECTION 13.2. ENTIRE AGREEMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
SECTION 13.3. AMENDMENT.
(a) This Agreement may be amended from time to time by the
parties hereto, without notice to or the consent of any of the Holders, (i) to
cure any ambiguity, (ii) to correct or supplement any provision herein which may
be inconsistent with any other provisions herein, (iii) to amend any provision
hereof to the extent necessary or desirable to maintain the status of each REMIC
Pool as a REMIC for the purposes of federal income tax law (or comparable
provisions of state income tax law), (iv) to make any other provisions with
respect to matters or questions ensuing under or with respect to this Agreement
not inconsistent with the provisions hereof, or (v) to modify, add to or
eliminate the provisions of Article III relating to transfers of Residual
Certificates as provided under such Article; provided that (x) no such amendment
shall adversely affect the status of any REMIC Pool as a REMIC and (y) no such
amendment effected pursuant to clause (i), (ii) or (iv) of the preceding
sentence shall adversely affect in any material respect the interests of any
Holder not consenting thereto. Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee may require (at the
expense of the party requesting such amendment, except that if the Trustee
requests such amendment, such amendment shall be at the expense of the
Depositor, if the Depositor consents) a Nondisqualification Opinion and an
Opinion of Counsel to the effect that such amendment is permitted under this
paragraph. The placement of an "original issue discount" legend on, or any
change required to correct any such legend previously placed on, a Certificate
shall not be deemed an amendment to this Agreement.
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(b) This Agreement may also be amended from time to time by
the parties hereto with the consent of the Holders of Certificates entitled to
not less than 51% of the Voting Rights allocated to all Classes affected by such
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 Holders or the rights and obligations of any party
hereto; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in the immediately
preceding clause (i), without the consent of all the Holders of Certificates of
such Class, or (iii) modify the provisions of this Section 13.3, without the
consent of all the Holders of Certificates. Prior to entering into any amendment
pursuant to this paragraph, the Trustee may require (at the expense of the party
requesting the amendment) a Nondisqualification Opinion and an Opinion of
Counsel to the effect that such amendment is permitted under this paragraph.
(c) Promptly after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Holder and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under
this Section 13.3 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(e) Notwithstanding any other provision of this Agreement, for
purposes of the giving or withholding of consents pursuant to this Section 13.3,
Certificates registered in the name of the Depositor, the Master Servicer, the
Special Servicer or any of their respective Affiliates shall be entitled to the
same Voting Rights with respect to matters described above as they would if any
other Person held such Certificates.
SECTION 13.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN THE STATE OF NEW YORK, OTHER THAN THE PRINCIPLES SET FORTH IN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
SECTION 13.5. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Morgan Stanley Capital I Inc.,
1585 Broadway, New York, New York 10036, Attention: Andrew Berman; (b) in the
case of the Trustee and the Fiscal Agent, at the Corporate Trust Office; (c) in
the case of RFC, Residential Funding Corporation, 8400 Normandale Lake Blvd.,
Suite 600, Minneapolis, Minnesota 55437, Attention: Tim Kruse; (d) in the case
of the Master Servicer, AMRESCO Services, L.P., 235 Peachtree Street, Suite 900,
Atlanta, Georgia 30363, facsimile number (404) 654-2478, Attention: Legal
Counsel; with a copy to AMRESCO Legal Department, Attention: General Counsel,
700 North Pearl Street, Suite 2400, LB342, Dallas, Texas 75201-7424, facsimile
number (214) 953-7757; (e) in the case of the Special Servicer, Banc One
Mortgage Capital Markets, LLC, 1717 Main Street, Dallas, Texas 75201, facsimile
number (214) 698-2121, Attention: F. Jerry Phelps, Esq.; or as to each party
hereto such other address as may hereafter be furnished by such party to the
other parties
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hereto in writing. Any notice required or permitted to be given to a Holder
shall be mailed by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice.
SECTION 13.6. SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7. INDULGENCES; NO WAIVERS. Neither the failure nor
any delay on the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, and no waiver of any right, remedy, power or privilege with respect
to any occurrence shall be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8. HEADINGS NOT TO AFFECT INTERPRETATION. The
headings contained in this Agreement are for convenience of reference only, and
shall not be used in the interpretation hereof.
SECTION 13.9. BENEFITS OF AGREEMENT. Nothing in this Agreement
or in the Certificates, express or implied, shall give to any Person, other than
the parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement.
SECTION 13.10. SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee (or, in the case of the items in clauses (vi)
and (vii), the successor trustee) shall give prompt notice to the Rating
Agencies and, except in the case of clause (viii), the Operating Adviser (or if
no Operating Adviser has been elected, the Majority Certificateholder of the
Controlling Class), of the occurrence of any of the following events of which it
has notice or actual knowledge:
(i) any amendment to this Agreement pursuant
to Section 13.3 hereof;
(ii) any repurchase or replacement of any
Mortgage Loan by a Seller;
(iii) waiver of a due-on-sale or
due-on-encumbrance clause as provided in Section 8.6;
(iv) any resignation or removal of the
Master Servicer, the Special Servicer or the Fiscal Agent
pursuant to this Agreement;
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(v) the appointment of any successor to the
Master Servicer, the Special Servicer or the Fiscal Agent
pursuant to this Agreement;
(vi) the resignation or removal of the
Trustee pursuant to Section 7.6;
(vii) the appointment of a successor trustee
pursuant to Section 7.7;
(viii) the election, resignation or removal
of an Operating Adviser pursuant to Section 8.32;
(ix) termination of the Trust pursuant to
Article X hereof;
(x) the final distribution to any Class of
Certificateholders; or
(xi) an Event of Default.
(b) All notices to the Rating Agencies shall be in writing and
sent by first class mail, telecopy or overnight courier, as follows:
If to DCR, to:
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60674
Attention: Structured Finance Commercial Real Estate Monitoring
Telecopy: (312) 263-2852
If to Moody's, to:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Structured Finance Commercial Real Estate Monitoring
If to any other Rating Agency, at such address as shall be
provided in writing to the Depositor by such Rating Agency.
(c) The Master Servicer and the Special Servicer shall each
deliver to the Trustee, and the Trustee shall deliver to the Rating Agencies and
the Depositor, copies of all reports prepared by the Master Servicer or Special
Servicer, as the case may be, pursuant to this Agreement and required to be
delivered to each other, the Trustee or the Certificateholders, together with
any other information as reasonably requested by the Rating Agencies and the
Depositor.
(d) Any notice or other document required to be delivered or
mailed by the Depositor, the Master Servicer, the Special Servicer or the
Trustee shall be given by such parties, respectively, on a best efforts basis
and only as a matter of courtesy and accommodation to the Rating Agencies,
unless otherwise specifically required herein, and such parties, respectively,
shall have no liability for failure to deliver any such notice or document to
the Rating Agencies.
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(e) The Trustee, the Master Servicer and the Special Servicer,
as applicable, shall furnish to each Rating Agency with respect to each Mortgage
Loan such information as the Rating Agency shall reasonably request and which
the Trustee, Master Servicer or Special Servicer can reasonably provide in
accordance with applicable law and without waiving any attorney-client privilege
relating to such information. The Trustee, Master Servicer and Special Servicer,
as applicable, may include any reasonable disclaimer they deem appropriate with
respect to such information.
SECTION 13.11. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
SECTION 13.12. INTENTION OF PARTIES.
(a) It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Trustee, for the
benefit of the Certificateholders, by the Depositor as provided in Section 2.1
be, and be construed as, an absolute sale of the Mortgage Loans and related
property. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans and related property by the Depositor
to the Trustee to secure a debt or other obligation of the Depositor. However,
in the event that, notwithstanding the intent of the parties, such conveyance is
held not to be an absolute sale of the Mortgage Loans or any related property,
or the Mortgage Loans or any related property are for any other reason held to
be the property of the Depositor, then:
(i) This Agreement shall be deemed to be a
security agreement.
(ii) The conveyance provided for in Section
2.1 shall be deemed to be a grant by the Depositor to the
Trustee, for the benefit of the Certificateholders, of a
security interest in all of the Depositor's right, title, and
interest, whether now owned or hereafter acquired, in and to:
(A) All accounts, contract rights, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
uncertificated securities consisting of, arising from or relating to any of the
property described in clauses (1)-(4) below: (1) the Mortgage Loans (including,
without limitation, the Mortgage Notes, the related Mortgages, the related
security agreements, and the related title, hazard and other insurance policies)
identified on the Mortgage Loan Schedule, including all Replacement Mortgage
Loans, together with all payments and other collections with respect thereto
after the Cut-off Date (other than Monthly Payments of principal and interest
due on or before the Cut-off Date) and the related Mortgage Files; (2) the
Distribution Account and the Collection Account, including, without limitation,
all funds and investments therein and all income from the investment of funds
therein (including any accrued discount realized on liquidation of any
investment purchased at a discount); (3) the REMIC I Regular Interests, the
REMIC II Regular Interests and the Certificates; and (4) the Mortgage Loan
Purchase Agreements;
(B) All accounts, contract rights, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit,
uncertificated securities, and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance proceeds payable
with respect to, or
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claims against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
(iii) The possession by the Trustee of the
Mortgage Notes, the Mortgages and such other goods, letters of
credit, advices of credit, instruments, money, documents,
chattel paper or certificated securities shall be deemed to be
"possession by the secured party," or possession by a
purchaser or a Person designated by him or her, for purposes
of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections
9-305, 8-313 or 8-321 thereof) as in force in each relevant
jurisdiction.
(iv) Notifications to Persons holding such
property, and acknowledgments, receipts or confirmations from
Persons holding such property, shall be deemed to be
notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or
agents (as applicable) of the Trustee for the purpose of
perfecting such security interest under applicable law.
(b) The Depositor and, at the Depositor's direction, the
Master Servicer and the Trustee, at the Depositor's expense, shall, to the
extent consistent with this Agreement, take such reasonable actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the property described above, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. The Master
Servicer shall file, at the direction and at the expense of the Depositor, all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any relevant
jurisdiction to perfect the Trustee's security interest in such property,
including, without limitation, continuation statements. In connection herewith,
the Trustee shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
(c) The Depositor shall not take any action inconsistent with
the Trust's ownership of the Mortgage Loans.
SECTION 13.13. RECORDATION OF AGREEMENT. This Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere. Such recordation, if any,
shall be effected by the Master Servicer at the expense of the Trust payable out
of the Collection Account, but only upon direction of the Trustee accompanied by
an Opinion of Counsel (the cost of which shall be payable out of the Collection
Account) to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders of the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
MORGAN STANLEY CAPITAL I INC.,
as Depositor
By: ___________________________
Name:
Title:
AMRESCO SERVICES, L.P.,
as Master Servicer
By: AMRESCO MORTGAGE CAPITAL, INC.,
its general partner
By: ___________________________
Name:
Title:
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
as Special Servicer
By: ___________________________
Name:
Title:
LASALLE NATIONAL BANK,
as Trustee
By: ___________________________
Name:
Title:
ABN AMRO BANK N.V., as Fiscal Agent
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of March, 1999, before me, a notary public in
and for said State, personally appeared ________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as __________________________ on
behalf of MORGAN STANLEY CAPITAL I INC., and acknowledged to me that such
corporation executed the within instrument pursuant to its by-laws or a
resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of March, 1999, before me, a notary public in
and for said State, personally appeared _______________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as
_____________________________ of AMRESCO Mortgage Capital, Inc., the general
partner of AMRESCO SERVICES, L.P., and acknowledged to me that such corporation
executed the within instrument pursuant to its bylaws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
172
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of March, 1999, before me, a notary public in
and for said State, personally appeared _____________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as
_______________________________ on behalf of _________________________, and
acknowledged to me that such corporation executed the within instrument pursuant
to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
173
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of March, 1999, before me, a notary public in
and for said State, personally appeared __________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as
___________________________________ on behalf of LASALLE NATIONAL BANK, and
acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
174
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of March, 1999, before me, a notary public in
and for said State, personally appeared _______________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be one of the persons who executed the within instrument as
_________________________________ on behalf of ABN AMRO BANK N.V., and
acknowledged to me that such banking corporation executed the within instrument
pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
175
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of March, 1999, before me, a notary public in
and for said State, personally appeared ______________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be one of the persons who executed the within instrument as
______________________________ on behalf of ABN AMRO BANK N.V., and acknowledged
to me that such banking corporation executed the within instrument pursuant to
its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
176
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of March, 1999, before me, a notary public in
and for said State, personally appeared ______________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be one of the persons who executed the within instrument as
______________________________ on behalf of BANC ONE MORTGAGE CAPITAL MARKETS,
LLC, and acknowledged to me that such banking corporation executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
177
<PAGE>
================================================================================
MORGAN STANLEY CAPITAL I INC.,
as Depositor,
and
AMRESCO SERVICES, L.P.,
as Master Servicer,
and
BANC ONE MORTGAGE CAPITAL MARKETS LLC,
as Special Servicer,
and
LASALLE NATIONAL BANK,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent,
----------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1999
----------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-RM1
================================================================================
<PAGE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A-1 Form of Class A-1 Certificate.................................................................A-1
Exhibit A-2 Form of Class A-2 Certificate.................................................................A-2
Exhibit A-3 Form of Class B Certificate...................................................................A-3
Exhibit A-4 Form of Class C Certificate...................................................................A-4
Exhibit A-5 Form of Class D Certificate...................................................................A-5
Exhibit A-6 Form of Class E Certificate...................................................................A-6
Exhibit A-7 Form of Class F Certificate...................................................................A-7
Exhibit A-8 Form of Class G Certificate...................................................................A-8
Exhibit A-9 Form of Class H Certificate...................................................................A-9
Exhibit A-10 Form of Class J Certificate..................................................................A-10
Exhibit A-11 Form of Class K Certificate..................................................................A-11
Exhibit A-12 Form of Class L Certificate..................................................................A-12
Exhibit A-13 Form of Class M Certificate..................................................................A-13
Exhibit A-14 Form of Class N Certificate..................................................................A-14
Exhibit A-15 Form of Class O Certificate..................................................................A-15
Exhibit A-16 Form of Class R-I Certificate................................................................A-16
Exhibit A-17 Form of Class R-II Certificate...............................................................A-17
Exhibit A-18 Form of Class R-III Certificate..............................................................A-18
Exhibit A-19 Form of Class X Certificate..................................................................A-19
Exhibit B-1 Form of Initial Certification of Trustee......................................................B-1
Exhibit B-2 Form of Final Certification of Trustee........................................................B-2
Exhibit C Form of Request for Release.....................................................................C
Exhibit D-1 Transfers of Definitive Privately Offered Certificates.......................................D1-1
Exhibit D-2A Form I of Transferee Certificate For Transfers of Definitive Privately Offered
Certificates..............................................................................D2-1
Annex 1 Qualified Institutional Buyer Status Under SEC Rule 144A.....................................D2-3
Annex 2 Qualified Institutional Buyer Status Under SEC Rule 144A.....................................D2-6
Exhibit D-2B Form II of Transferee Certificate for Transfers of Definitive Privately
Offered Certificates......................................................................D2-8
Exhibit D-3A Form I of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates............................................................D3-1
Exhibit D-3B Form II of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates............................................................D3-3
Annex 1 Qualified Institutional Buyer Status Under SEC Rule 144A.....................................D3-5
Annex 2 Qualified Institutional Buyer Status Under SEC Rule 144A.....................................D3-8
Exhibit E Form of Transferor Certificate for Transfers of REMIC Residual Certificate......................E
Exhibit F Form of Transfer Affidavit and Agreement for Transfers of REMIC Residual
Certificates.................................................................................F
Exhibit G-1 Form of Monthly Certificateholder Report......................................................G-1
Exhibit G-2 Form of Specially Serviced Asset Report.......................................................G-2
Exhibit H-1 Comparative Financial Status Report...........................................................H-1
Exhibit H-2 Delinquent Loan Status Report.................................................................H-2
Exhibit H-3 Historical Loan Modification Report...........................................................H-3
Exhibit H-4 Historical Loss Estimate Report...............................................................H-4
Exhibit H-5 REO Status Report.............................................................................H-5
Exhibit H-6 Watch List ...................................................................................H-6
Exhibit H-7 Operating Statement Analysis..................................................................H-7
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Exhibit H-8 NOI Adjustment Worksheet .....................................................................H-8
Exhibit H-9 CSSA Reports .................................................................................H-9
Exhibit H-10 CSSA Reports ................................................................................H-10
Exhibit H-11 CSSA Reports ................................................................................H-11
SCHEDULES
Schedule I MSMC Loan Schedule..............................................................................I
Schedule II RFC Loan Schedule..............................................................................II
Schedule III Wachovia Loan Schedule........................................................................III
</TABLE>
<PAGE>
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE OR
HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS A-1 CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 100.4800% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 6.31269% PER ANNUM,
COMPOUNDED MONTHLY. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY IS THE
EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY
DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING
THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE
HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION LOANS. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE
OR ANY OTHER RATE.
A-1-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.37% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE $183,000,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER:
BANC ONE MORTGAGE CAPITAL MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: APRIL 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CUSIP NO. 61745MKXO
CERTIFICATE AS OF THE CLOSING DATE:
$183,000,000 NO. 1
</TABLE>
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class A-1 Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates,
A-1-3
<PAGE>
Series 1999-RM1 and are issued in nineteen Classes as specifically set forth in
the Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-1-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-1-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any ROE Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:_____________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-1-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:____________________________
AUTHORIZED SIGNATORY
A-1-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-1-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of_____________________________
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-1-10
<PAGE>
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE OR
HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS A-2 CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 101.5196% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 6.56077% PER ANNUM,
COMPOUNDED MONTHLY. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY IS THE
EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY
DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING
THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE
HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION LOANS. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE
OR ANY OTHER RATE.
A-2-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-2-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.71% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS A-2
CERTIFICATE AS OF THE CLOSING DATE $429,287,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-2 CUSIP NO. 61745MKYB
CERTIFICATE AS OF THE CLOSING DATE:
$429,287,000 NO. 1
</TABLE>
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class A-2 Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-2-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-2-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions onor before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-2-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-2-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:_____________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-2-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:____________________________
AUTHORIZED SIGNATORY
A-2-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-2-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of_____________________________
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-2-10
<PAGE>
EXHIBIT A-3
[FORM OF CLASS B CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS B CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 101.4657% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE.
A-3-1
<PAGE>
THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE
APPROXIMATELY 6.6738% PER ANNUM, COMPOUNDED MONTHLY. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY IS THE EXACT METHOD. THE ACTUAL YIELD TO
MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE
PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND
THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF
THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-3-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.81% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING DATE $42,967,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B CUSIP NO. 61745MKZ5
CERTIFICATE AS OF THE CLOSING DATE:
$42,967,000 NO. 1
</TABLE>
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class B Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-3-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-3-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-3-5
<PAGE>
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Propeties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:_____________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-3-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:______________________________
AUTHORIZED SIGNATORY
A-3-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-3-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of_____________________________
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-3-10
<PAGE>
EXHIBIT A-4
[FORM OF CLASS C CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS C CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 101.4812% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE.
A-4-1
<PAGE>
THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE
APPROXIMATELY 6.8146% PER ANNUM, COMPOUNDED MONTHLY. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY IS THE EXACT METHOD. THE ACTUAL YIELD TO
MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE
PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND
THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF
THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-4-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.95% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING DATE $45,116,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1,1999 MASTER SERVICER: AMRESCO SERVICES, L.P.
CUT-OFF DATE: MARCH 1,1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9,1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C CUSIP NO. 61745MLA9
CERTIFICATE AS OF THE CLOSING DATE:
$45,116,000 NO. 1
</TABLE>
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class C Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-4-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-4-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-4-5
<PAGE>
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-4-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:_________________________
AUTHORIZED SIGNATORY
A-4-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-4-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of_____________________________
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-4-10
<PAGE>
EXHIBIT A-5
[FORM OF CLASS D CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS D CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 100.7018% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE
A-5-1
<PAGE>
FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT OF OID AS A PERCENTAGE
OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
68.6252%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF
COMPUTING OID WOULD BE APPROXIMATELY 7.1161% PER ANNUM, COMPOUNDED MONTHLY, AND
(III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD (MARCH 9,
1999 TO APRIL 15, 1999) FOR PURPOSES OF COMPUTING OID ON THIS CERTIFICATE AS A
PERCENTAGE OF THE ORIGINAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
0.7077%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF
OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL
YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED
AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS
0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN
THE CASE OF THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-5-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 7.27% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE $12,890,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS D CUSIP NO. 61745MLB7
CERTIFICATE AS OF THE CLOSING DATE:
$12,890,000 NO. 1
</TABLE>
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class D Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-5-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustsee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-5-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-5-5
<PAGE>
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:_______________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-5-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:________________________________
AUTHORIZED SIGNATORY
A-5-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-5-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-5-10
<PAGE>
EXHIBIT A-6
[FORM OF CLASS E CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS E CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 96.3451% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST" THE
A-6-1
<PAGE>
FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT OF OID AS A PERCENTAGE
OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
73.0283%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF
COMPUTING OID WOULD BE APPROXIMATELY 7.7678% PER ANNUM, COMPOUNDED MONTHLY, AND
(III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD (MARCH 9,
1999 TO APRIL 15, 1999) FOR PURPOSES OF COMPUTING OID ON THIS CERTIFICATE AS A
PERCENTAGE OF THE ORIGINAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
0.7383%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF
OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL
YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED
AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS
0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN
THE CASE OF THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-6-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 7.27% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE $34,374,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS E CUSIP NO. 61745MLC5
CERTIFICATE AS OF THE CLOSING DATE: $34,374,000 NO. 1
</TABLE>
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class E Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-6-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-6-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-6-5
<PAGE>
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-6-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-6-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-6-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-6-10
<PAGE>
EXHIBIT A-7
[FORM OF CLASS F CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS F CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 89.8808% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST" THE
A-7-1
<PAGE>
FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT OF OID AS A PERCENTAGE
OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
80.7049%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF
COMPUTING OID WOULD BE APPROXIMATELY 8.7908% PER ANNUM, COMPOUNDED MONTHLY, AND
(III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD (MARCH 9,
1999 TO APRIL 15, 1999) FOR PURPOSES OF COMPUTING OID ON THIS CERTIFICATE AS A
PERCENTAGE OF THE ORIGINAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
0.7780%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF
OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL
YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED
AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS
0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN
THE CASE OF THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-7-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 7.27% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING DATE $17,187,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F CUSIP NO. 61745MLD3
CERTIFICATE AS OF THE CLOSING DATE: $17,187,000 NO. 1
</TABLE>
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class F Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and Servicing
A-7-3
<PAGE>
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-7-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-7-5
<PAGE>
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-7-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-7-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-7-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-7-10
<PAGE>
EXHIBIT A-8
[FORM OF CLASS G CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCE HEREBY HAVE BEEN REGISTERED OR QUALIFIED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY,
A-8-1
<PAGE>
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS G CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 74.6209% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY 25.2375%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 10.5774% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL 15, 1999) FOR PURPOSES OF COMPUTING OID
ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY 0.1376%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-8-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.37% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS G
CERTIFICATE AS OF THE CLOSING DATE $10,742,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G CUSIP NO. 61745MLF8
CERTIFICATE AS OF THE CLOSING DATE: $10,742,000 NO. 1
</TABLE>
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class G Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-8-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-8-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-8-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-8-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-8-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-8-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-8-10
<PAGE>
EXHIBIT A-9
[FORM OF CLASS H CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCE HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY,
A-9-1
<PAGE>
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS H CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 69.2643% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY 30.5941%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 11.2274% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL 15, 1999) FOR PURPOSES OF COMPUTING OID
ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY 0.1253%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-9-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.37% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS H
CERTIFICATE AS OF THE CLOSING DATE $23,632,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H CUSIP NO. 61745MLG6
CERTIFICATE AS OF THE CLOSING DATE: $23,632,000 NO. 1
</TABLE>
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class H Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-9-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-9-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-9-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-9-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-9-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-9-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-9-10
<PAGE>
EXHIBIT A-10
[FORM OF CLASS J CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCE HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY,
A-10-1
<PAGE>
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS J CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 63.4030% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY 36.4554%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 12.0785% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL 15, 1999) FOR PURPOSES OF COMPUTING OID
ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY 0.1126%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-10-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.37% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS J
CERTIFICATE AS OF THE CLOSING DATE $8,594,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS J CUSIP NO. 61745MLH4
CERTIFICATE AS OF THE CLOSING DATE: $8,594,000 NO. 1
</TABLE>
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class J Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and Servicing
A-10-3
<PAGE>
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-10-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions onor before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-10-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-10-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-10-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-10-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-10-10
<PAGE>
EXHIBIT A-11
[FORM OF CLASS K CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY,
A-11-1
<PAGE>
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS K CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 57.2289% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY 42.6295%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 13.3321% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL 15, 1999) FOR PURPOSES OF COMPUTING OID
ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY 0.1083%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-11-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.37% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS K
CERTIFICATE AS OF THE CLOSING DATE $12,890,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K CUSIP NO. 61745MLJ0
CERTIFICATE AS OF THE CLOSING DATE: $12,890,000 NO. 1
</TABLE>
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class K Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-11-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-11-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-11-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-11-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-11-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-11-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-11-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-11-10
<PAGE>
EXHIBIT A-12
[FORM OF CLASS L CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY,
A-12-1
<PAGE>
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS L CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 54.7987% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY 45.0597%, (II) THE YIELD TO MATURITY OF THIS
CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 13.8335% PER
ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE
INITIAL ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL 15, 1999) FOR PURPOSES OF
COMPUTING OID ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL
AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY 0.1028%. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS
CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION
USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE
BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE
HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-12-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.37% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS L
CERTIFICATE AS OF THE CLOSING DATE $6,445,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS L CUSIP NO. 61745MK7
CERTIFICATE AS OF THE CLOSING DATE: $6,445,000 NO. 1
</TABLE>
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class L Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-12-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-12-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-12-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-12-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-12-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-12-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-12-10
<PAGE>
EXHIBIT A-13
[FORM OF CLASS M CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY,
A-13-1
<PAGE>
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS M CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 50.1557% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY 49.7027%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 15.08795% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL 15, 1999) FOR PURPOSES OF COMPUTING OID
ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY 0.09997%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-13-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.37% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS M
CERTIFICATE AS OF THE CLOSING DATE $8,594,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS L CUSIP NO. 61745MLL5
CERTIFICATE AS OF THE CLOSING DATE: $8,594,000 NO. 1
</TABLE>
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class M Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-13-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-13-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-13-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-13-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-13-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-13-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-13-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-13-10
<PAGE>
EXHIBIT A-14
[FORM OF CLASS N CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY,
A-14-1
<PAGE>
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS N CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 30.1933% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY 69.6651%, (II) THE YIELD TO MATURITY OF THIS
CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 24.0819% PER
ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE
INITIAL ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL 15, 1999) FOR PURPOSES OF
COMPUTING OID ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL
AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY 0.0607%. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS
CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION
USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE
BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE
HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-14-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.37% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS N
CERTIFICATE AS OF THE CLOSING DATE $8,593,000
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS L CUSIP NO. 61745MLM3
CERTIFICATE AS OF THE CLOSING DATE: $8,593,000 NO. 1
</TABLE>
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class N Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-14-3
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-14-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-14-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-14-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-14-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-14-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-14-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-14-10
<PAGE>
EXHIBIT A-15
[FORM OF CLASS O CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY,
A-15-1
<PAGE>
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS AN INVESTMENT
UNIT COMPRISED OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE, AND A BENEFICIAL OWNERSHIP INTEREST IN THE ASSETS OF A GRANTOR TRUST.
THIS CLASS O CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND TO THE EXTENT IT
CONSTITUTES A REMIC REGULAR INTEREST, IT IS TREATED AS HAVING BEEN ISSUED WITH
ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE
OF THIS CERTIFICATE ALLOCATED BY THE DEPOSITOR TO THE REMIC REGULAR INTEREST IS
25.5562% OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT
THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN
ASSUMPTIONS USED IN PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS
TREATED AS "QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE
APPLICABLE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL
AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY 74.30224%, (II) THE YIELD TO
MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE
APPROXIMATELY 27.10897% PER ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL
AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL
15, 1999) FOR PURPOSES OF COMPUTING OID ON THIS CERTIFICATE AS A PERCENTAGE OF
THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
0.02468%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF
OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL
YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED
AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS
0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN
THE CASE OF THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
A-15-2
<PAGE>
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-15-3
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.3700% CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS O
CERTIFICATE AS OF THE CLOSING DATE $15,039,407
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS L CUSIP NO. 61745MLN1
CERTIFICATE AS OF THE CLOSING DATE: $15,039,407 NO. 1
</TABLE>
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class O Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class O Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and
A-15-4
<PAGE>
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, this Certificate
entitles the holder to receive distributions from amounts, if any, on deposit in
the Excess Interest Distribution Account from time to time, and upon the
termination of the Trust.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
A-15-5
<PAGE>
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
A-15-6
<PAGE>
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-15-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-15-8
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-15-9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-15-10
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-15-11
<PAGE>
EXHIBIT A-16
[FORM OF CLASS R-I CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF DIRECTORS IS
NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN
A-16-1
<PAGE>
ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521
OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
(UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT THE UNITED
STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES FIDUCIARY
AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON BEING
HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-16-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: AMRESCO SERVICES, L.P.
R-I CERTIFICATE: _____%
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
1999 MARKETS LLC
CUT-OFF DATE: MARCH 1, 1999 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 9, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE:
APRIL 15, 1999
NO. _________
</TABLE>
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Morgan Stanley & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-I Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Morgan Stanley
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer, the Special Servicer and the Fiscal Agent, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from
A-16-3
<PAGE>
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the
A-16-4
<PAGE>
Pooling and Servicing Agreement at any time by the parties thereto with the
consent of the Holders of not less than 51% of the aggregate Certificate
Principal Balance of the Certificates then outstanding, as specified in the
Pooling and Servicing Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon the Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage
A-16-5
<PAGE>
Loan held by the Trust and (B) the disposition of the last REO Property held by
the Trust and (ii) the sale of all Mortgage Loans and any REO Properties held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement; provided that in no event shall the Trust continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late Ambassador of the United States to the Court of St.
James, living on the date hereof. The parties designated in the Pooling and
Servicing Agreement may exercise their option to purchase the Mortgage Loans and
any other property remaining in the Trust and cause the termination of the Trust
in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-16-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-16-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-16-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-16-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-16-10
<PAGE>
EXHIBIT A-17
[FORM OF CLASS R-II CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF DIRECTORS IS
NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN
A-17-1
<PAGE>
ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521
OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
(UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT THE UNITED
STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES FIDUCIARY
AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON BEING
HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-II CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-17-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: AMRESCO SERVICES, L.P.
R-II CERTIFICATE: ______%
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
1999 MARKETS LLC
CUT-OFF DATE: MARCH 1, 1999 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 9, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE:
APRIL 15, 1999
</TABLE>
NO. _________
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Morgan Stanley & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-II Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Morgan Stanley
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer, the Special Servicer and the Fiscal Agent, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from
A-17-3
<PAGE>
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the
A-17-4
<PAGE>
Pooling and Servicing Agreement at any time by the parties thereto with the
consent of the Holders of not less than 51% of the aggregate Certificate
Principal Balance of the Certificates then outstanding, as specified in the
Pooling and Servicing Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon the Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage
A-17-5
<PAGE>
Loan held by the Trust and (B) the disposition of the last REO Property held by
the Trust and (ii) the sale of all Mortgage Loans and any REO Properties held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement; provided that in no event shall the Trust continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late Ambassador of the United States to the Court of St.
James, living on the date hereof. The parties designated in the Pooling and
Servicing Agreement may exercise their option to purchase the Mortgage Loans and
any other property remaining in the Trust and cause the termination of the Trust
in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-17-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-17-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-17-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-17-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-17-10
<PAGE>
EXHIBIT A-18
[FORM OF CLASS R-III CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
TRUSTEE TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN
A-18-1
<PAGE>
ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521
OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
(UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT THE UNITED
STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES FIDUCIARY
AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON BEING
HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-18-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: AMRESCO SERVICES, L.P.
R-III CERTIFICATE:_________%
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
1999 MARKETS LLC
CUT-OFF DATE: MARCH 1, 1999 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 9, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE:
APRIL 15, 1999
NO. _________
</TABLE>
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Morgan Stanley & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-III Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Morgan
Stanley Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Master Servicer, the Special Servicer and the Fiscal Agent, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Collection Account, the Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from
A-18-3
<PAGE>
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the
A-18-4
<PAGE>
Pooling and Servicing Agreement at any time by the parties thereto with the
consent of the Holders of not less than 51% of the aggregate Certificate
Principal Balance of the Certificates then outstanding, as specified in the
Pooling and Servicing Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon the Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage
A-18-5
<PAGE>
Loan held by the Trust and (B) the disposition of the last REO Property held by
the Trust and (ii) the sale of all Mortgage Loans and any REO Properties held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement; provided that in no event shall the Trust continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late Ambassador of the United States to the Court of St.
James, living on the date hereof. The parties designated in the Pooling and
Servicing Agreement may exercise their option to purchase the Mortgage Loans and
any other property remaining in the Trust and cause the termination of the Trust
in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-18-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-18-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-18-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-18-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-18-10
<PAGE>
EXHIBIT A-19
[FORM OF CLASS X CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE OR
HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY
THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO
THE CERTIFICATE NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE.
A-19-1
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS AN INVESTMENT
UNIT COMPRISED OF FIFTEEN COMPONENT INTERESTS, EACH OF WHICH IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS X CERTIFICATE WAS ISSUED ON MARCH 9, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 2.8334% OF THE ORIGINAL
NOTIONAL PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE
PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED
IN PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL NOTIONAL PRINCIPAL AMOUNT OF
THIS CERTIFICATE WOULD BE APPROXIMATELY 1.7341%, (II) THE YIELD TO MATURITY OF
THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY 10.9103%
PER ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO
THE INITIAL ACCRUAL PERIOD (MARCH 9, 1999 TO APRIL 15, 1999) FOR PURPOSES OF
COMPUTING OID ON PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
0.0304%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF
OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL
YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED
AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS
0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN
THE CASE OF THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-19-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-RM1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 0.64% INITIAL CERTIFICATE NOTIONAL AMOUNT OF THIS CLASS X
CERTIFICATE: $859,350,407
DATE OF POOLING & SERVICING AGREEMENT: AS OF MARCH 1, MASTER SERVICER: AMRESCO SERVICES, L.P.
1999
CUT-OFF DATE: MARCH 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE MORTGAGE CAPITAL
MARKETS LLC
CLOSING DATE: MARCH 9, 1999 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1999
AGGREGATE CERTIFICATE NOTIONAL AMOUNT OF THE CLASS X CUSIP NO. [_________]
CERTIFICATES AS OF THE CLOSING DATE: $859,350,407 NO. 1
</TABLE>
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class X Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Fiscal Agent, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Certificate
Notional Amount of the Class X Certificates. The Certificates are designated as
the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 and are issued in nineteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
A-19-3
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Notional Amount of this Certificate immediately prior to each
Distribution Date. Interest allocated to this Certificate on any Distribution
Date will be in an amount due to this Certificate's pro rata share of the amount
to be distributed on the Certificates of this Class as of such Distribution
Date, with a final distribution to be made upon retirement of this Certificate
as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under
A-19-4
<PAGE>
the Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
A-19-5
<PAGE>
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-19-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:___________________________
AUTHORIZED OFFICER
Dated: March 9, 1999
A-19-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:___________________________
AUTHORIZED SIGNATORY
A-19-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
| |
| |
- ------------------- ___________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- ----------------------------------
SIGNATURE GUARANTEED The signature
must be guaranteed by a commercial
bank or trust company or by a
member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
A-19-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account
of_____________________________ account number _____________________ or, if
mailed by check, to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-19-10
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
March __, 1999
Morgan Stanley Capital I Inc.
1585 Broadway, 37th Floor
New York, New York 10036
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-RM1
--------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents specified in clause (i) of the definition of "Mortgage File" are
in its possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (c) based on its examination
and only as to the foregoing documents, the loan number and the name of the
Mortgagor set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in such documents, and (d) each
Mortgage Note has been endorsed as provided in clause (i) of the definition of
"Mortgage File". The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any such documents
contained in each Mortgage File or any of the Mortgage Loans identified in the
Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness
or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized words and phrases used herein and not otherwise
defined herein shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement. This Certificate is subject in all respects to
the terms of said Pooling and Servicing Agreement.
LASALLE NATIONAL BANK, as Trustee
By:___________________________
Name:
Title:
B-1-1
<PAGE>
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
March __, 1999
Morgan Stanley Capital I Inc.
1585 Broadway, 37th Floor
New York, New York 10036
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-RM1
--------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents required to be included in the Mortgage File pursuant to clauses
(i), (ii), (iii), (ix), (xii) (to the extent it relates to the foregoing) and
(xiii) (if a leasehold interest of the borrower in the related Mortgaged
Property is evident from the related Mortgage or title policy) of the definition
of "Mortgage File" are in its possession, (b) such documents have been reviewed
by it and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the foregoing documents, the loan
number, the street address of the Mortgaged Property and the name of the
Mortgagor set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in the documents in the Mortgage
File, and (d) each Mortgage Note has been endorsed and each Mortgage has been
assigned as provided in clauses (i) and (iii) of the definition of "Mortgage
File". The Trustee makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any of the documents contained in
each Mortgage File or any of the Trustee Mortgage Loans identified in the
Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness
or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE NATIONAL BANK, as Trustee
By:___________________________
Name:
Title:
B-2-1
<PAGE>
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle National Bank, Trustee
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attn: Asset-Backed Securities Trust Services Group - Morgan Stanley
Series 1999-RM1
Re: Morgan Stanley Capital I Inc., Commercial
Morgan Pass-Through Certificates, Series 1999-RM1
-------------------------------------------------
Date: March __, 1999
In connection with the administration of the Mortgage Loans held by you
as Trustee under the Pooling and Servicing Agreement dated as of March 1, 1999,
by and among Morgan Stanley Capital I Inc., as Depositor, AMRESCO Services,
L.P., as Master Servicer, Banc One Mortgage Capital Markets LLC, as Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent (the "Pooling and Servicing Agreement"), the undersigned hereby requests a
release of the Mortgage File held by you as Trustee with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all amounts
received in connection with the Mortgage Loan have been or will be,
following the [Master] [Special] Servicer's release of the Trustee
Mortgage File, credited to the Collection Account or the Distribution
Account pursuant to the Pooling and Servicing Agreement.)
____2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the Purchase
Price has been credited to the Distribution Account pursuant to the
Pooling and Servicing Agreement.)
____3. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a Qualifying
Substitute Mortgage Loan has been assigned and delivered to you along
with the related Mortgage File pursuant to the Pooling and Servicing
Agreement.)
____4. The Mortgage Loan is being foreclosed.
____5. Other. (Describe)
C-1
<PAGE>
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By:__________________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D-1
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
LaSalle National Bank
135 LaSalle Street
Suite 1625
Chicago, IL 60674-4170
Attention: Asset-Backed Securities Trust Services
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series
1999-RM1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_______________ (the "Transferor") to ________________ (the "Transferee") of a
Certificate (the "Transferred Certificate") having an initial Principal Balance
or Notional Amount as of March 9, 1999 (the "Closing Date") of $__________. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), to be dated as of March 1, 1999, among
Morgan Stanley Capital I Inc. as depositor (the "Depositor"), AMRESCO Services,
L.P., as master servicer, Banc One Mortgage Capital Markets LLC, as special
servicer, LaSalle National Bank, as trustee and ABN AMRO Bank N.V., as fiscal
agent. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificate with the full right to transfer such Certificate free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Certificate under the Securities Act of 1933, as
amended (the "Securities Act"), or would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Certificate pursuant to the Securities Act or any state securities
laws.
Very truly yours,
(Transferor)
By:___________________________
Name:_________________________
Title:________________________
D-1-1
<PAGE>
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
LaSalle National Bank
135 LaSalle Street
Suite 1625
Chicago, IL 60674-4170
Attention: Asset-Backed Securities Trust Services
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series
1999-RM1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to __________________ (the "Transferee") of
Class __________ Certificates having an initial Principal Balance or Notional
Amount as of March 9, 1999 (the "Closing Date") of $____________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, to be
dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), among Morgan
Stanley Capital I Inc., as depositor (the "Depositor"), AMRESCO Services, L.P.,
as master servicer, Banc One Mortgage Capital Markets LLC, as special servicer,
LaSalle National Bank, as trustee and ABN AMRO Bank N.V., as fiscal agent. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the sale to it of the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
D-2-1
<PAGE>
2. The Transferee has been furnished with all information
regarding (a) the Transferred Certificates and distributions thereon,
(b) the nature, performance and servicing of the Mortgage Loans, (c)
the Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Transferred Certificates, that it has
requested.
Very truly yours,
_______________________
(Transferor)
By:____________________
Name:__________________
Title:_________________
D-2-2
<PAGE>
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A") because (i) the Transferee owned and/or invested
on a discretionary basis $______________________(1) in securities
(other than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of sale for a foreign bank or
equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a date not more
than 16 months preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months preceding such
date of sale for a foreign savings and loan association or equivalent
institution.
____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and
- ----------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
D-2-3
<PAGE>
which is subject to supervision by the insurance commissioner or a similar
official or agency of a State, U.S. territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as amended.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection (a)(1) of
Rule 144A pursuant to which it qualifies. Note that registered investment
companies should complete Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on
a discretionary basis by the Transferee, the Transferee did not include
any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the
Transferee, the Transferee used the cost of such securities to the
Transferee, unless the Transferee reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities were valued at market.
Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its
financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are
managed under the Transferee's direction. However, such securities were
not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to
the Transferred Certificates are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee
may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
D-2-4
<PAGE>
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase promptly after they become available.
__________________________________
Print Name of Transferee
By:_______________________________
Name___________________________
Title:_________________________
Date:__________________________
D-2-5
<PAGE>
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of
1933, as amended ("Rule 144A") because the Transferee is part of a
Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment
company registered under the Investment Company Act of 1940, as
amended, and (ii) as marked below, the Transferee alone owned and/or
invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family
of Investment Companies, the cost of such securities was used, unless
the Transferee of any member of the Transferee's Family of Investment
Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
The Transferee owned and/or invested on a discretionary basis
$__________ in securities (other than the excluded securities referred to below)
as of the end of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
The Transferee is part of a Family of Investment Companies which owned
in the aggregate $____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a
D-2-6
<PAGE>
discretionary basis by the Transferee, or owned by the Transferee's
Family of Investment Companies, the securities referred to in this
paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying
and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice by the undersigned, the Transferee's purchase
of the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
___________________________________
Print Name of Transferee or Adviser
By:_______________________________
Name___________________________
Title:_________________________
Date:__________________________
IF AN ADVISER:
___________________________________
Print Name of Transferee
Date:______________________________
D-2-7
<PAGE>
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
LaSalle National Bank
135 LaSalle Street
Suite 1625
Chicago, IL 60674-4170
Attention: Asset-Backed Securities Trust Services
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-RM1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
__________________ (the "Transferor") to _____________________ (the
"Transferee") of Class ____ Certificates having an initial Principal Balance or
Notional Amount as of March 9, 1999 (the "Closing Date") of $___________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, to be
dated as of March 1, 1999 (the "Pooling and Servicing Agreement") among Morgan
Stanley Capital I Inc., as depositor (the "Depositor"), AMRESCO Services, L.P.,
as master servicer, Banc One Mortgage Capital Markets LLC, as special servicer,
LaSalle National Bank, as trustee and ABN AMRO Bank N.V., as fiscal agent. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates
for its own account for investment and not with a view to or for sale
or transfer in connection with any distribution thereof, in whole or in
part, in any manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities
laws.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificates belong has not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated to so
register or qualify the Class of Certificates to which the Transferred
Certificates belong, and (c) no Transferred Certificate may be resold
or transferred unless it is (i) registered pursuant to the Securities
Act and registered or qualified pursuant any applicable state
securities laws or (ii) sold or transferred in transactions which are
exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the
Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit ___ to the Pooling and Servicing Agreement and
a certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit ___ or as Exhibit
___ to the Pooling and Servicing Agreement; or (C) an opinion of
counsel satisfactory to the Trustee with respect to the availability of
such exemption from registration under the Securities Act, together
with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which
such opinion is based.
D-2-8
<PAGE>
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate except in compliance
with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation with respect to any Certificate, any interest in
any Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to any Certificate, any interest in any Certificate or any
other similar security, which (in the case of any of the acts described
in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of
the Securities Act or any state securities law or would require
registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate, any interest in any
Certificate or any other similar security.
6. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and the
Trust Fund created pursuant thereto, (d) the nature, performance and
servicing of the Mortgage Loans, and (e) all related matters, that it
has requested.
D-2-9
<PAGE>
7. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or an entity in which all of the equity owners come
within such paragraphs. The Transferee has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificate; the Transferee has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
___________________________________
(Transferee)
By:_______________________________
Name___________________________
Title:_________________________
D-2-10
<PAGE>
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to __________________ (the "Transferee")
of a Certificate (the "Transferred Certificate") having an initial Principal
Balance or Notional Amount as of March 9, 1999 (the "Closing Date") of
$____________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of March
1, 1999, among Morgan Stanley Capital I Inc., as depositor (the "Depositor"),
AMRESCO Services, L.P., as master servicer, Banc One Mortgage Capital Markets
LLC, as special servicer, LaSalle National Bank, as trustee and ABN AMRO Bank
N.V., as fiscal agent. All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, and for the benefit
of the Depositor and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for
its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in
part, in any manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities
laws.
2. The Transferee understands that (a) the Certificates have
not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated to so register or qualify the Certificates and (c) no
interest in the Certificates may be sold or transferred unless (i) such
Certificates are registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities
laws or (ii) such interest sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Owner desiring to effect such transfer has received either (A) a
certification from such Certificate Owner's prospective transferee
(substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an
opinion of counsel satisfactory to the Certificate Registrar with
respect to the availability of such exemption, together with copies of
the certification(s) from the transferor and/or transferee setting
forth the facts surrounding the transfer upon which such opinion is
based.
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred
Certificate except in compliance with the provisions of Section 3.3 of
the Pooling and Servicing Agreement, which provisions it has carefully
reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES
D-3-1
<PAGE>
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a
distribution of any Certificate under the Securities Act, would render
the disposition of an Certificate a violation of Section 5 of the
Securities Act or any state securities law or would require
registration or qualification of any Certificate pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate.
6. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and (d)
all related matters, that it has requested.
7. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act
and has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in
the Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed
investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such
investment.
Very truly yours,
___________________________________
(Transferee)
By:_______________________________
Name___________________________
Title:_________________________
D-3-2
<PAGE>
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _____________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Principal Balance or Notional Amount as of March 9, 1999 (the "Closing Date") of
$________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 1999,
among Morgan Stanley Capital I Inc. as depositor (the "Depositor"), AMRESCO
Services, L.P., as master servicer, Banc One Mortgage Capital Markets LLC, as
special servicer, LaSalle National Bank as trustee and ABN AMRO Bank N.V., as
fiscal agent. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor
and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of
1933, as amended (the "Securities Act"), and has completed one of the
forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in
reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificate for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate or any
interest therein may be resold, pledged or transferred only (i) to a
person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificate belongs have not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless (i) such Certificates
are registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to
effect such transfer has received either (A) a certification from such
Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the
facts surrounding the transfer or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to the
availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth
the facts surrounding the transfer upon which such opinion is based.
D-3-3
<PAGE>
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred
Certificate except in compliance with the provisions of Section 3.3 of
the Pooling and Servicing Agreement, which provisions it has carefully
reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
5. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the
nature, performance and servicing of the Mortgage Loans, (c) the
Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Transferred Certificate, that it has
requested.
Very truly yours,
___________________________________
(Transferee)
By:_______________________________
Name___________________________
Title:_________________________
D-3-4
<PAGE>
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor and the Trustee, as
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because (i) the Transferee owned and/or invested
on a discretionary basis $__________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
D-3-5
<PAGE>
____ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as
amended.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
================================================================================
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on
a discretionary basis by the Transferee, the Transferee did not include
any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the
Transferee, the Transferee used the cost of such securities to the
Transferee, unless the Transferee reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities were valued at market.
Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its
financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are
managed under the Transferee's direction. However, such securities were
not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
D-3-6
<PAGE>
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to
the Transferred Certificate are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee
may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Transferee's
purchase of the Transferred Certificate will constitute a reaffirmation
of this certification as of the date of such purchase. In addition, if
the Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated
annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
______________________________________________
Print Name of Transferee
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Date:_________________________________________
D-3-7
<PAGE>
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor and the Trustee, with
respect to the commercial mortgage pass-through certificate being transferred
(the "Transferred Certificate") as described in the Transferee Certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of
1933, as amended ("Rule 144A"), because the Transferee is part of a
Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment
company registered under the Investment Company Act of 1940, as
amended, and (ii) as marked below, the Transferee alone owned and/or
invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family
of Investment Company, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment
Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $_________ in securities (other
than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
D-3-8
<PAGE>
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or
owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying
and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
____________________________________
Print Name of Transferee or Adviser
By:_________________________________
Name:_______________________________
Title:______________________________
IF AN ADVISER:
____________________________________
Print Name of Transferee
Date:_______________________________
D-3-9
<PAGE>
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
[Date]
LaSalle National Bank,
as Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services Group -
Morgan Stanley Series 1999-RM1
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-RM1 (the "Certificates")
---------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by ________________ (the "Transferor") to __________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing
a ____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 1999 (the "Pooling and
Servicing Agreement"), among Morgan Stanley Capital I Inc., as depositor,
AMRESCO Services, L.P., as master servicer, Banc One Mortgage Capital Markets
LLC, as special servicer, LaSalle National Bank, as trustee, and ABN AMRO Bank
N.V., as fiscal agent. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit F. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
____________________________
(Transferor)
By:________________________
Name:______________________
Title:_____________________
E-1
<PAGE>
EXHIBIT F
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
__________________________, being first duly sworn, deposes
and says that:
1. He/She is the ___________________________ of
___________________ (the prospective transferee (the "Transferee") of Morgan
Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-RM1, Class [R-I] [R-II] [R-III], evidencing a ____% Percentage Interest in
such Class (the "Residual Certificates"), a ___________________ duly organized
and validly existing under the laws of _________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Certificates were issued (the
"Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will
be, a "Permitted Transferee" and will endeavor to remain a "Permitted
Transferee" for so long as it holds the Residual Certificates, and (ii) is
acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.)
3. The Transferee is aware (i) of the tax that would be
imposed on transfers of the Residual Certificates to "disqualified
organizations" under the Code that applies to all transfers of the Residual
Certificates; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Certificates
may be a "noneconomic residual interest" within the meaning of Treasury
regulation Section 1.860E-1(c) and that the transferor of a "noneconomic
residual interest" will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Certificates if at any time during
the taxable year of the pass-through entity a non-Permitted Transferee is the
record holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated
F-1
<PAGE>
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Certificates by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section
3.3(f) of the Pooling and Servicing Agreement, a description of which provisions
is set forth in the Residual Certificates (in particular, clause (iv)(A) of
Section 3.3(f) which authorizes the Trustee to deliver payments on the Residual
Certificate to a Person other than the Transferee and clause (iv)(B) of Section
3.3(f) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(f)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Certificates.
11. The Transferee will, in connection with any transfer that
it makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E to the Pooling and
Servicing Agreement in which it will represent and warrant, among other things,
that it is not transferring the Residual Certificates to impede the assessment
or collection of any tax and that it has at the time of such transfer conducted
a reasonable investigation of the financial condition of the proposed transferee
as contemplated by Treasury regulation Section 1.860E-l(c)(4)(i) and has
satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United
States, a corporation, a partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________ and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this ___ day of _______________, 199_.
F-2
<PAGE>
[NAME OF TRANSFEREE]
By:________________________________
[Name of Officer]
[Title of Officer]
- ---------------------------
[Corporate Seal]
ATTEST:
- ---------------------------
[Assistant] Secretary
Personally appeared before me the above-named
____________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the ___________________________ of the
Transferee, and acknowledged to me that he/she executed the same as his/her free
act and deed and the free act and deed of the Transferee
Subscribed and sworn before me this ___ day of
__________________, 199_.
__________________________________
NOTARY PUBLIC
COUNTY OF_________________________
STATE OF__________________________
My Commission expires the_________
day of __________________, 19___.
F-3
<PAGE>
EXHIBIT G-1
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
G-1-1
<PAGE>
EXHIBIT G-2
FORM OF SPECIALLY SERVICED ASSET REPORT
[AVAILABLE FROM TRUSTEE]
G-2-1
<PAGE>
EXHIBIT H-1
COMPARATIVE FINANCIAL STATUS REPORT
[AVAILABLE FROM TRUSTEE]
H-1-1
<PAGE>
EXHIBIT H-2
COMPARATIVE FINANCIAL STATUS REPORT
[AVAILABLE FROM TRUSTEE]
H-2-1
<PAGE>
EXHIBIT H-3
HISTORICAL LOAN MODIFICATION REPORT
[AVAILABLE FROM TRUSTEE]
H-3-1
<PAGE>
EXHIBIT H-4
HISTORICAL LOSS ESTIMATE REPORT
[AVAILABLE FROM TRUSTEE]
H-4-1
<PAGE>
EXHIBIT H-5
REO STATUS REPORT
H-5-1
<PAGE>
EXHIBIT H-6
WATCH LIST
[AVAILABLE FROM TRUSTEE]
H-6-1
<PAGE>
EXHIBIT H-7
OPERATING STATEMENT ANALYSIS
[AVAILABLE FROM TRUSTEE]
H-7-1
<PAGE>
EXHIBIT H-8
NOI ADJUSTMENT WORKSHEET
[AVAILABLE FROM TRUSTEE]
H-8-1
<PAGE>
EXHIBIT H-9
CSSA REPORTS
[AVAILABLE FROM TRUSTEE]
H-9-1
<PAGE>
EXHIBIT H-10
CSSA REPORTS
[AVAILABLE FROM TRUSTEE]
H-10-1
<PAGE>
EXHIBIT H-11
CSSA REPORTS
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance, as applicable
and in any whole dollar denomination in excess thereof. The remaining
Certificates will initially be issued in denominations of $100,000 initial
Certificate Principal Balance or Certificate Notional Amount and in any whole
dollar denomination in excess thereof. Each Class of Certificates other than the
Residual Certificates will be represented by one or more Certificates registered
in the name of Cede & Co., as nominee of the DTC. No Certificate Owner will be
entitled to receive a Definitive Certificate representing such interest, except
under the limited circumstances described in the Pooling and Servicing
Agreement. The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
H-11-1
<PAGE>
SCHEDULE I
MSMC LOAN SCHEDULE
[TO BE FILED MANUALLY]
<PAGE>
SCHEDULE II
RFC LOAN SCHEDULE
[TO BE FILED MANUALLY]
<PAGE>
SCHEDULE III
WACHOVIA LOAN SCHEDULE
[TO BE FILED MANUALLY]
