================================================================================
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
DEPOSITOR
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
SERVICER
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
SPECIAL SERVICER
LASALLE NATIONAL BANK,
TRUSTEE
and
ABN AMRO BANK N.V.,
FISCAL AGENT
------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1999
------------------------------------------------------
COMM 1999-1
Commercial Mortgage Pass-Through Certificates
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms ...............................................3
SECTION 1.02. Certain Calculations...........................................55
SECTION 1.03. Certain Constructions..........................................55
ARTICLE II. CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase Agreement.....................................56
SECTION 2.02. Acceptance by Custodian and the Trustee........................60
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage
Loans..................................................62
SECTION 2.04. Representations, Warranties and Covenants of the Servicer,
Special Servicer and Trustee...........................68
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests...........................72
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions...............73
ARTICLE III. ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Administration of the
Mortgage Loans.........................................74
SECTION 3.02. Liability of the Servicer......................................76
SECTION 3.03. Collection of Certain Mortgage Loan Payments...................77
SECTION 3.04. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts...............................................77
SECTION 3.05. Collection Account; Distribution Account; Interest Reserve
Account; Middle-Tier Distribution Account and
Upper-Tier Distribution Account........................79
SECTION 3.06. Permitted Withdrawals from the Collection Account..............82
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the Lock-Box Accounts, the Cash
Collateral Accounts and the Reserve Accounts...........84
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions
and Fidelity Coverage..................................86
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions..................................89
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans..........93
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files................97
i
PAGE
----
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation...........................................98
SECTION 3.13. Reports to the Trustee; Collection Account Statements.........101
SECTION 3.14. Annual Statement as to Compliance.............................105
SECTION 3.15. Annual Independent Public Accountants'Servicing Report........105
SECTION 3.16. Access to Certain Documentation...............................106
SECTION 3.17. Title and Management of REO Properties and REO Account
Properties............................................106
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO
Properties............................................110
SECTION 3.19. Additional Obligations of the Servicer and Special
Servicer; Inspections.................................113
SECTION 3.20. Authenticating Agent..........................................113
SECTION 3.21. Appointment of Custodians.....................................114
SECTION 3.22. Reports to the Securities and Exchange Commission;
Available Information.................................114
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts.........................117
SECTION 3.24. Property Advances.............................................117
SECTION 3.25. Appointment of Special Servicer...............................118
SECTION 3.26. Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report.........119
SECTION 3.27. [RESERVED]....................................................122
SECTION 3.28. Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Certain Mortgage
Loans.................................................122
SECTION 3.29. [Intentionally Left Blank]....................................125
SECTION 3.30. Modification, Waiver, Amendment and Consents..................125
SECTION 3.31. Duties of Automobile Adviser..................................127
SECTION 3.32. Automobile Adviser; Elections.................................128
SECTION 3.33. Limitation on Liability of Automobile Adviser.................129
ARTICLE IV. DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.................................................130
SECTION 4.02. Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and
Others................................................141
SECTION 4.03. Compliance with Withholding Requirements......................146
SECTION 4.04. REMIC Compliance..............................................146
SECTION 4.06. Remittances; P&I Advances.....................................150
SECTION 4.07. Grantor Trust Reporting.......................................152
ARTICLE V. THE CERTIFICATES
SECTION 5.01. The Certificates..............................................152
SECTION 5.02. Registration, Transfer and Exchange of Certificates...........156
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.............167
ii
PAGE
----
SECTION 5.04. Appointment of Paying Agent...................................167
SECTION 5.05. Access to Certificateholders'Names and Addresses..............168
SECTION 5.06. Actions of Certificateholders.................................168
ARTICLE VI. THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the Special
Servicer..............................................169
SECTION 6.02. Merger or Consolidation of the Servicer.......................169
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer and
Others................................................169
SECTION 6.04. Limitation on Resignation of the Servicer and the Special
Servicer; Termination of the Servicer and the
Special Servicer......................................170
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer and the Special Servicer.....................172
SECTION 6.06. Servicer or Special Servicer as Owner of a Certificate........172
ARTICLE VII. DEFAULT
SECTION 7.01. Events of Default.............................................173
SECTION 7.02. Trustee to Act; Appointment of Successor......................178
SECTION 7.03. Notification to Certificateholders............................179
SECTION 7.04. Other Remedies of Trustee.....................................179
SECTION 7.05. Waiver of Past Events of Default; Termination.................180
ARTICLE VIII. CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.............................................180
SECTION 8.02. Certain Matters Affecting the Trustee.........................182
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Certificates or
Mortgage Loans........................................184
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.................186
SECTION 8.05. Payment of Trustee's Fees and Expenses;
Indemnification.......................................186
SECTION 8.06. Eligibility Requirements for Trustee..........................188
SECTION 8.07. Resignation and Removal of the Trustee........................188
SECTION 8.08. Successor Trustee and Fiscal Agent............................190
SECTION 8.09. Merger or Consolidation of Trustee............................190
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.................191
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent...........192
ARTICLE IX. TERMINATION
SECTION 9.01. Termination...................................................193
iii
PAGE
----
ARTICLE X. MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts.................................................196
SECTION 10.02. Limitation on Rights of Certificateholders...................196
SECTION 10.03. Governing Law................................................197
SECTION 10.04. Notices......................................................197
SECTION 10.05. Severability of Provisions...................................200
SECTION 10.06. Notice to the Depositor and Each Rating Agency...............200
SECTION 10.07. Amendment....................................................202
SECTION 10.08. Confirmation of Intent.......................................204
SECTION 10.09. No Intended Third-Party Beneficiaries........................205
SECTION 10.10. No Recourse..................................................205
SECTION 10.11. Entire Agreement.............................................206
iv
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-l Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class X Certificate
Exhibit A-4 Form of Class B Certificate
Exhibit A-5 Form of Class C Certificate
Exhibit A-6 Form of Class D Certificate
Exhibit A-7 Form of Class E Certificate
Exhibit A-8 Form of Class F Certificate
Exhibit A-9 Form of Class G Certificate
Exhibit A-10 Form of Class H Certificate
Exhibit A-11 Form of Class J Certificate
Exhibit A-12 Form of Class K Certificate
Exhibit A-13 Form of Class L Certificate
Exhibit A-14 Form of Class Q-1 Certificate
Exhibit A-15 Form of Class Q-2 Certificate
Exhibit A-16 Form of Class R Certificate
Exhibit A-17 Form of Class MR Certificate
Exhibit A-18 Form of Class LR Certificate
Exhibit B-1 Mortgage Loan Schedule
Exhibit B-2 Healthcare Loan Schedule
Exhibit B-3 Automobile Loan Schedule
Exhibit B-4 Servicing Fee Rate Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F [RESERVED]
Exhibit G Securities Legend
Exhibit H GACC Purchase Agreement
Exhibit I Form of Regulation S Transfer Certificate
Exhibit J Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate during the Restricted Period
Exhibit K Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate after the Restricted Period
Exhibit L Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global
Certificate
Exhibit M-l Form of Comparative Financial Status Report
Exhibit M-2 Form of Delinquent Loan Status Report
Exhibit M-3 Form of Historical Loan Modification Report
v
Exhibit M-4 Form of Historical Loss Estimate Report
Exhibit M-5 Form of REO Status Report
Exhibit M-6 Form of Watch List
Exhibit M-7 Form of Operating Statement Analysis Report
Exhibit M-8 Form of Operating Statement Analysis Worksheet
Exhibit M-9 CSSA 100.1 Set-Up Data Record Layout
Exhibit M-10 CSSA 100.1 Periodic Data Record Layout
Exhibit M-11 CSSA 100.1 Property Data File
Exhibit N Retained Interests
vi
Pooling and Servicing Agreement, dated as of March 1, 1999, among
Deutsche Mortgage & Asset Receiving Corporation, as Depositor, Banc One Mortgage
Capital Markets, LLC, as Servicer, Banc One Mortgage Capital Markets, LLC, as
initial Special Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank
N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have the
meanings specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple Classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans. As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Lock-Box Accounts, Cash Collateral Accounts, Reserve Accounts,
Default Interest, the Default Interest Distribution Account, Excess Interest and
the Excess Interest Distribution Account (such nonexcluded portion of the Trust
Fund, the "Trust REMICs"), be treated for federal income tax purposes as three
separate real estate mortgage investment conduits (each, a "REMIC" or, in the
alternative, the "Lower-Tier REMIC", the "Middle-Tier REMIC" and the "Upper-Tier
REMIC," respectively, within the Code Section 860D). The Class A-l, Class A-2,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates constitute classes of "regular interests" in
the Upper-Tier REMIC and the Class R Certificates constitute the sole Class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of the
Excess Interest and the Default Interest), the proceeds therefrom, the
Collection Account (exclusive of any sub-account thereof established for the
collection of Excess Interest or Default Interest under the provisions of the
Pooling and Servicing Agreement), the Distribution Account and any REO Property,
and will issue (i) 221 uncertificated classes of regular interests (the
"Lower-Tier Regular Interests") to the Middle-Tier REMIC (one corresponding to
each Mortgage Loan) and (ii) the Class LR Certificates, which will represent the
sole class of residual interests in the Lower-Tier REMIC, within the meaning of
the REMIC Provisions. The Middle-Tier REMIC will hold the Lower-Tier Regular
Interests and the Middle-Tier Distribution Account in which distributions on the
Lower-Tier Regular Interests will be deposited, and will issue the
uncertificated Class A-1M, Class A-2M, Class B-M, Class C-M, Class ▇-▇, Class
E-M, Class F-M, Class G-M, Class H-M, Class ▇-▇, Class K-M and Class ▇-▇ regular
interests (the "Middle-Tier Regular Interests"), as classes of regular interests
in the Middle-Tier REMIC, and the Class MR Certificates as the sole class of
"residual interests" in the Middle-Tier REMIC. The Upper-Tier REMIC will hold
the Middle-Tier Regular Interests and the Upper-Tier Distribution Account in
which distributions on the Middle-Tier Regular Interests will be deposited, and
will issue 24 Classes of regular interests in the Upper-Tier REMIC. 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 and Class L Certificates (together with the Class X
Certificates, the "Regular Certificates") are designated as classes of regular
interests, and the Class R Certificates are designated as the sole class of
residual interests, in the Upper-Tier REMIC. The Class X Certificates will
represent an investment in 12 separate classes of "regular interests" in the
Upper-Tier REMIC. Each such component regular interest comprising the Class X
Certificates (the Class X-A1 Component, the Class X-A2 Component, Class X-B
Component,
Class X-C Component, Class X-D Component, Class X-E Component, Class X-F
Component, Class X-G Component, Class X-H Component, Class X-J Component, Class
X-K Component, and Class X-L Component, each, a "Class X Component" and
collectively, the "Class X Components" or a "Class X Certificate") is designated
as a separate class of regular interests in the Upper-Tier REMIC, and represents
a right to a specified portion of interest payable on a corresponding
Middle-Tier Regular Interest held as an asset of the Upper-Tier REMIC.
The parties intend that the portions of the Trust Fund representing the
Default Interest, the Default Interest Distribution Account, the Excess Interest
and the Excess Interest Distribution Account will be treated as a grantor trust
under Subpart E of Part 1 of Subchapter J of the Code, and: (a) that the Class
Q-l Certificates represent pro rata undivided beneficial interests in the
portion of the Trust Fund consisting of the Default Interest collected on the
Mortgage Loans, subject to the obligations to pay the Advance Interest Amount,
and in the Default Interest Distribution Account; and (b) that the Class Q-2
Certificates represent pro rata undivided beneficial interests in the portion of
the Trust Fund consisting of the Excess Interest collected on the Mortgage Loans
and in the Excess Interest Distribution Account. The Reserve Accounts and
Lock-Box Accounts will be beneficially owned by the Borrowers on the Mortgage
Loans to which they relate, will not constitute a portion of the Trust Fund, but
disbursements therefrom will be under the control of the Servicer.
The following table sets forth the designation and aggregate initial
Certificate Balance (or, with respect to the Class X Certificates, Notional
Balance) for each Class of Certificates comprising interests in the Upper-Tier
REMIC.
Class Certificate Balance or Notional Balance
----- ---------------------------------------
Class A-1 $ 181,453,000
Class A-2 $ 723,242,000
Class X (1) $1,311,153,573
Class B $ 62,280,000
Class C $ 22,945,000
Class D $ 62,280,000
Class E $ 81,947,000
Class F $ 19,668,000
Class G $ 68,835,000
Class H $ 13,112,000
Class J $ 26,223,000
Class K $ 19,667,000
Class L $ 29,501,573
----------------
(1) The initial Notional Balance of Class X Certificates is equal to the sum of
the initial Middle-Tier Balances of the Middle-Tier Regular Interests, which
amount corresponds to the aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-off Date.
2
The initial Certificate Balance of each of the Class Q-1, Class Q-2,
Class R, Class MR and Class LR Certificates is zero. Additionally, the Class
Q-1, Class Q-2, Class R, Class MR and Class LR Certificates do not have a
Notional Balance. The Certificate Balance of any Class of Certificates
outstanding at any time represents the maximum amount which holders thereof are
entitled to receive as distributions allocable to principal from the cash flow
on the Mortgage Loans and the other assets in the Trust Fund; provided, however,
that in the event that amounts previously allocated as Realized Losses to a
Class of Certificates in reduction of the Certificate Balance thereof are
subsequently recovered (including without limitation after the reduction of the
Certificate Balance of such Class to zero), such Class may receive distributions
in respect of such recoveries in accordance with the priorities set forth in
Section 4.01.
The initial Lower-Tier Balances and initial Middle-Tier Balances, and
Pass-Through Rates for the Lower-Tier Regular Interests and the Middle-Tier
Regular Interests are set forth in the definitions of such terms and Section
4.0l(a).
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $1,311,153,573.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Trustee and the Fiscal Agent
agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Article.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the
aggregate amount of P&I Advances and Property Advances for which the Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as applicable, have not
been reimbursed and Servicing Fees, Trustee Fees or Special Servicing
Compensation for which the Servicer, the Trustee or the Special Servicer, as
applicable, has not been timely paid or reimbursed for the number of days from
the date on which such Advance was made or such Servicing Fees, Trustee Fees or
Special Servicing Compensation were due through the date of payment or
reimbursement of the related Advance or other such amount, less any amount of
interest previously paid on such Advance or Servicing Fees, Trustee Fees or
Special Servicing Compensation; provided, that, with respect to a
3
P&I Advance, in the event that the related Borrower makes payment of the amount
in respect of which such P&I Advance was made with interest at the Default Rate,
the Advance Interest Amount payable to the Servicer, the Trustee or the Fiscal
Agent shall be paid (i) first from the amount of Default Interest paid by the
Borrower and (ii) to the extent such amounts are insufficient therefor, then
from amounts on deposit in the Collection Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most
recently published in the "Money Rates" section of The Wall Street Journal, New
York edition, on or before the related Record Date) compounded monthly as of
each Servicer Remittance Date. Interest at the Advance Rate will accrue from
(and including) the date on which the related Advance is made or the related
expense incurred to (and including) the date on which such amounts are recovered
out of amounts received on the Mortgage Loan as to which such Advances were made
or servicing expenses incurred or the first Servicer Remittance Date after a
determination of non-recoverability, as the case may be, is made, provided that
such interest at the Advance Rate will continue to accrue to the extent funds
are not available in the Collection Account for such reimbursement of such
Advance.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officers' Certificate of the Servicer, the Special Servicer, or
the Depositor to determine whether any Person is an Affiliate of such party.
"Affiliated Person": Any Person (other than a Rating Agency) involved
in the organization or operation of the Depositor or an affiliate, as defined in
Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in, the
Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property, the
portion of the principal amount of the related Mortgage Loan allocated to such
Mortgaged Property in the applicable Mortgage, Loan Agreement or the Mortgage
Loan Schedule.
"Annual Compliance Report": A report consisting of an annual statement
of compliance required by Section 3.14 hereof and an annual report of an
Independent accountant required pursuant to Section 3.15 hereof
"Anticipated Repayment Date": With respect to any Mortgage Loan that is
indicated on the Mortgage Loan Schedule as having a Revised Rate, the date upon
which such Mortgage Loan commences accruing interest at such Revised Rate.
4
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan an amount equal to the excess, if any, of (a) the Stated Principal
Balance of such Mortgage Loan over (b) the excess of (i) 90% of the sum of the
appraised values (net of any prior mortgage liens) of the related Mortgaged
Properties as determined by Updated Appraisals obtained by the Servicer of the
Mortgaged Properties securing such Mortgage Loan over (ii) the sum of (A) to the
extent not previously advanced by the Servicer, the Trustee or the Fiscal Agent,
all unpaid interest on such Mortgage Loan at a per annum rate equal to its
Mortgage Rate, (B) all unreimbursed Property Advances and the principal portion
of all ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, and all unpaid interest on Advances at the
Advance Rate, in respect of such Mortgage Loan and (c) all currently due and
unpaid real estate taxes, ground rents and assessments and insurance premiums
and all other amounts due and unpaid with respect to such Mortgage Loan (which
taxes, premiums and other amounts have not been the subject of an Advance by the
Servicer, the Trustee or the Fiscal Agent, as applicable). If no Updated
Appraisal has been obtained within the last 12 months prior to the first
Distribution Date on or after an Appraisal Reduction Event has occurred, the
Servicer shall estimate the value of the related Mortgaged Properties (the
"Servicer's Appraisal Estimate") and such estimate shall be used for purposes of
determining the Appraisal Reduction Amount for such Distribution Date. Within 30
days after the Servicer receives notice or is otherwise aware of the Appraisal
Reduction Event, the Servicer shall obtain an Updated Appraisal. On the first
Distribution Date occurring on or after the delivery of such appraisal, the
Servicer shall adjust the Appraisal Reduction Amount to take into account such
appraisal (regardless of whether the Updated Appraisal is higher or lower than
the Servicer's Appraisal Estimate). Each Appraisal Reduction Amount shall also
be adjusted to take into account any subsequent Updated Appraisal and annual
letter updates, as of the date of each such subsequent Updated Appraisal or
letter update.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
first Distribution Date following the earliest of (i) the date on which any
Mortgage Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the
occurrence of any uncured delinquency in Monthly Payments with respect to any
Mortgage Loan, (iii) receipt of notice that the related Borrower has filed a
bankruptcy petition or the date on which a receiver is appointed and continues
in such capacity in respect of the Mortgaged Property securing any Mortgage Loan
and (iv) the date on which the Mortgaged Property securing any Mortgage Loan
becomes an REO Property. The Special Servicer shall notify the Servicer promptly
upon the occurrence of any of the foregoing events with respect to any Specially
Serviced Mortgage Loan.
"Asset Status Report": As defined in Section 3.26(f).
5
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Assumed Maturity Date": With respect to (i) any Mortgage Loan that is
not a Balloon Loan, the maturity date of such Mortgage Loan; (ii) any Balloon
Loan, the date on which such Mortgage Loan would be deemed to mature in
accordance with its original amortization schedule absent its Balloon Payment;
and (iii) the Elder Trust Certificate, October 1, 2008.
"Assumed Scheduled Payment": With respect to any Mortgage Loan that is
delinquent in respect of its Balloon Payment (including any REO Mortgage Loan as
to which the Balloon Payment would have been past due), an amount equal to the
sum of (a) the principal portion of the Monthly Payment that would have been due
on such Mortgage Loan on the related Due Date (or portion thereof not received),
based on the constant Monthly Payment that would have been due on such Mortgage
Loan on the related Due Date based on the constant payment required by the
related Note or the amortization or payment schedule thereof (as calculated with
interest at the related Mortgage Rate) (if any), assuming such Balloon Payment
had not become due, after giving effect to any prior modification, and (b)
interest at the applicable Mortgage Pass-Through Rate.
"Assumption Fees": Any fees collected by the Servicer or Special
Servicer in connection with an assumption or modification of a Mortgage Loan or
substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the
Trustee pursuant to Section 3.20.
"Automobile Adviser": An entity elected pursuant to Section 3.32 or its
successor in interest as herein provided, which in all cases is required to be
an entity that has expertise in lending to automobile dealerships.
"Automobile Adviser Standard": With respect to the Automobile Adviser
shall mean providing advice and consultation with respect to the Automobile
Loans and Automobile Properties using the same care, skill, prudence, and
diligence with which it (a) advises and administers similar automobile loans and
automobile properties comparable to the Automobile
6
Loans and Automobile Properties and held for other third-party portfolios or (b)
advises and administers automobile loans or automobile properties for its own
account, whichever standard is higher, but without regard to (i) any known
relationship that the Automobile Adviser, or an Affiliate of the Automobile
Adviser may have with the Borrowers or any other party to this Agreement; (ii)
the ownership of any Certificate by the Automobile Adviser or any Affiliate of
the Automobile Adviser, as applicable; (iii) the Automobile Adviser's right to
receive compensation for its services under this Agreement or with respect to
any particular transaction; or (iv) the ownership or advising or management for
others, by the Automobile Adviser of other automobile dealership loans or
automobile dealership properties.
"Automobile Loan": The Mortgage Loan which is listed on Exhibit B-3
attached hereto.
"Automobile Property": A Mortgaged Property securing an Automobile
Loan.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments or other receipts on account of
principal and interest (including Unscheduled Payments and any Net REO Proceeds
transferred from an REO Account pursuant to Section 3.17(b)) on or in respect of
the Mortgage Loans, received by the Servicer in the Collection Period relating
to such Distribution Date, (ii) all other amounts received by the Servicer in
such Collection Period and required to be placed in the Collection Account by
the Servicer pursuant to Section 3.05 allocable to such Mortgage Loans, and all
P&I Advances made by the Servicer, the Trustee or the Fiscal Agent in respect of
such Distribution Date, (iii) any late payments of Monthly Payments received
after the end of the Collection Period relating to such Distribution Date but
prior to the related Servicer Remittance Date, (iv) any Servicer Prepayment
Interest Shortfalls remitted by the Servicer to the Collection Account and (v)
with respect to the Distribution Date in March of each calendar year the
Withheld Amounts deposited in the Interest Reserve Account by the Trustee in
accordance with Section 3.05(c), but excluding the following:
(a) amounts permitted to be used to reimburse the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable,
for previously unreimbursed Advances and interest thereon as
described in Section 3.06(ii) and (iii);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and Trustee Fee and an amount
representing any applicable Special Servicing Compensation,
including interest thereon at the Advance Rate as provided in this
Agreement;
(c) all amounts in the nature of late fees (subject to Section 3.12
hereof), loan modification fees, extension fees, loan service
transaction fees, demand fees, beneficiary statement charges,
Assumption Fees and similar fees, which the Servicer or the
Special Servicer is entitled to retain as Servicing Compensation
or Special Servicing Compensation, respectively;
7
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds or Net Insurance Proceeds
with respect to a Mortgage Loan which represents any unpaid
Servicing Fee, Trustee Fee and Special Servicing Compensation,
including interest thereon at the Advance Rate as provided in this
Agreement, to which the Servicer, Trustee and the Special
Servicer, respectively, are entitled;
(f) all amounts representing certain expenses reimbursable or payable
to the Servicer, the Special Servicer, the Trustee or the Fiscal
Agent and other amounts permitted to be retained by the Servicer
or withdrawn by the Servicer from the Collection Account to the
extent expressly set forth in this Agreement (including, without
limitation, as provided in Section 3.06 and including any
indemnities provided for herein), including interest thereon as
provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account, the Upper-Tier Distribution Account, the
Middle-Tier Distribution Account, the Distribution Account, the
Default Interest Distribution Account, the Excess Interest
Distribution Account, or any REO Account or, to the extent payable
to the Trustee or the Servicer under the terms of the related
Mortgage Loan, any Cash Collateral Account, any Lock-Box Account
or any Reserve Account or, in each case, in Permitted Investments
in which such funds may be invested;
(h) all amounts received with respect to each Mortgage Loan previously
purchased or repurchased from the Trust Fund pursuant to Sections
2.03(d), 2.03(e), 3.18 or 9.01 during the related Collection
Period and subsequent to the date as of which such Mortgage Loan
was purchased or repurchased;
(i) the amount reasonably determined by the Trustee to be necessary to
pay any applicable federal, state or local taxes imposed on the
Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC
under the circumstances and to the extent described in Section
4.05;
(j) Prepayment Premiums;
(k) Excess Interest;
(l) Default Interest; and
(m) with respect to the Distribution Date occurring in (A) January of
each calendar year that is not a leap year and (B) February of
each calendar
8
year, the Withheld Amounts deposited in the Interest Reserve
Account by the Trustee in accordance with Section 3.05(c).
"Balloon Loan": Any Mortgage Loan that requires a payment of principal
on the maturity date in excess of its constant Monthly Payment.
"Balloon Payment": With respect to each Mortgage Loan, the scheduled
payment of principal due on the Maturity Date (less principal included in the
applicable amortization schedule or scheduled Monthly Payment).
"Beneficial Owner": With respect to a Global Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. Each of the Trustee and the Servicer shall have the
right to require, as a condition to acknowledging the status of any Person as a
Beneficial Owner under this Agreement, that such Person provide evidence at its
expense of its status as a Beneficial Owner hereunder.
"Borrower": With respect to any Mortgage Loan, any obligor or obligors
on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any day on
which banking institutions in The City of New York, New York, the City of
Chicago, Illinois or the State of Texas are authorized or obligated by law,
executive order or governmental decree to be closed.
"Cash Collateral Account": With respect to any Mortgage Loan that has a
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage, Loan Agreement, Cash Collateral Account Agreement or other loan
document into which the Lock-Box Account monies are swept on a regular basis for
the benefit of the Trustee as successor to the Mortgage Loan Seller. Any Cash
Collateral Account shall be beneficially owned for federal income tax purposes
by the Person who is entitled to receive all reinvestment income or gain thereon
in accordance with the terms and provisions of the related Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon in accordance with the terms of the related Mortgage Loan. The Servicer
shall be permitted to make withdrawals therefrom for deposit into the Collection
Account. To the extent not inconsistent with the terms of the related Mortgage
Loan, each such Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage Loan,
the cash collateral account agreement, if any, between the related Originator
and the related Borrower, pursuant to which the related Cash Collateral Account,
if any, may have been established.
9
"Cash Deposit": An amount equal to all cash payments of principal and
interest received by the Mortgage Loan Sellers in respect of their related
Mortgage Loans prior to or on the Closing Date that are due after the Cut-off
Date, to the extent transferred to the Trust Fund pursuant to Section 2.01.
"CEDEL": Citibank. N.A., as depositary for CEDEL Bank, S.A., or its
successor in such capacity.
"Certificate": Any Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
Q-l, Class Q-2, Class R, Class MR or Class LR Certificate issued, authenticated
and delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates (other
than the Class X, Class Q-l, Class Q-2, Class R, Class MR and Class LR
Certificates) (a) on or prior to the first Distribution Date, an amount equal to
the aggregate initial Certificate Balance of such Class, as specified in the
Preliminary Statement hereto, (b) as of any date of determination after the
first Distribution Date, the Certificate Balance of such Class of Certificates
on the Distribution Date immediately prior to such date of determination after
distributions and Realized Losses allocable to principal have been made thereon
on such prior Distribution Date; provided that for purposes of determining
Voting Rights, the Certificate Balance of the Class (other than the Class J,
Class K and Class L Certificates) shall be deemed to have been reduced by an
amount equal to the amount of Appraisal Reductions allocated for purposes of
Section 4.06(e); provided further that no such reduction shall apply to the
Voting Rights of the Class X Certificates.
"Certificate Custodian": Initially, LaSalle National Bank; thereafter
any other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the
Certificate Register subject to the following:
(i) except as provided in clauses (ii) and (iv), for the purpose of
giving any consent or taking any action pursuant to this Agreement, any
Certificate beneficially owned by the Depositor, the Servicer, the Special
Servicer, the Trustee, a Manager or a Borrower or any Person known to a
Responsible Officer of the Certificate Registrar to be an Affiliate of any
thereof shall be deemed not to be outstanding and the Voting Rights to which it
is entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent or take any
such action has been obtained;
(ii) for purposes of obtaining the consent of Certificateholders to an
amendment of the Pooling and Servicing Agreement, any Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate thereof shall be
deemed to be outstanding, unless such amendment relates to compensation of the
Servicer or the Special Servicer or benefits the
10
Servicer or the Special Servicer (in its capacity as such) or any Affiliate
thereof (other than solely in its capacity as Certificateholder) in any material
respect, in which case such Certificates shall be deemed not to be outstanding;
(iii) except as provided in clause (iv) below, for purposes of
obtaining the consent of Certificateholders to any action proposed to be taken
by the Special Servicer with respect to a Specially Serviced Mortgage Loan, any
Certificates beneficially owned by the Special Servicer or an Affiliate thereof
shall be deemed not to be outstanding;
(iv) for the purpose of exercising its rights as a member of the
Controlling Class or as a Directing Certificateholder (if applicable), any
Certificate beneficially owned by the Special Servicer will be deemed
outstanding; and
(v) for purposes of providing or distributing any reports, statements
or other information required or permitted to be provided to a Certificateholder
hereunder, a Certificateholder shall include any Beneficial Owner, or any Person
identified by a Beneficial Owner as a prospective transferee of a Certificate
beneficially owned by such Beneficial Owner, but only if the Trustee or another
party hereto furnishing such report, statement or information has been provided
with the name of the Beneficial Owner of the related Certificate or the Person
identified as a prospective transferee thereof. For purposes of the foregoing,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Fiscal Agent or other such Person may rely, without limitation, on a
Depository Participant listing from the Depository or statements furnished by a
Person that on their face appear to be statements from a Depository Participant
to such Person indicating that such Person beneficially owns Certificates.
"Class": With respect to the Certificates, Middle-Tier Regular
Interests or Lower-Tier Regular Interests, all of the Certificates, Middle-Tier
Regular Interests or Lower-Tier Regular Interests bearing the same alphabetical
and numerical Class designation.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": A per annum rate equal to 6.145%.
"Class A-1M Interest": A regular interest in the Middle-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.455%.
"Class A-2M Interest": A regular interest in the Middle-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
11
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the lesser of
6.552% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class B-M Interest": A regular interest in the Middle-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the lesser of
6.612% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class C-M Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the lesser of
6.701% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class ▇-▇ Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class E-M Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
12
"Class F-M Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class G Pass-Through Rate": A per annum rate equal to the lesser of
5.645% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class G-M Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class H Pass-Through Rate": A per annum rate equal to the lesser of
5.645% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class H-M Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Shortfall": On any Distribution Date for any Class of
Certificates, the amount of interest required to be distributed to the Holders
of such Class pursuant to Section 4.01(b) on such Distribution Date minus the
amount of interest actually distributed to such Holders pursuant to such
Section, if any.
"Class J Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class J Pass-Through Rate": A per annum rate equal to the lesser of
5.645% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class ▇-▇ Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class K Pass-Through Rate": A per annum rate equal to the lesser of
5.645% and the Weighted Average Net Mortgage Pass-Through Rate.
13
"Class K-M Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class L Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser of
5.645% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class ▇-▇ Interest": A regular interest in the Middle-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class MR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto. The Class
MR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class Q-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto. None of
the Class Q-1 Certificates has a Pass Through Rate, Certificate Balance or
Notional Balance.
"Class Q-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto. None of
the Class Q-2 Certificates has a Pass-Through Rate, Certificate Balance or
Notional Balance.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto. The Class
R Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class X Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class X Component": Any one of the 12 component interests represented
by the Class X Certificates, each of which relates to a Class of Middle-Tier
Regular Interests and a Class of Principal Balance Certificates, as defined
below, and represents a right to a specified portion, within the meaning of
Treasury Regulation 1.860G-1(a)(2), of interest paid on its related
14
Class of Middle-Tier Regular Interests. Each Class X Component bears interest at
a rate per annum equal to the excess, if any, of the Pass-Through Rate on its
related Class of Middle-Tier Regular Interest over the Pass-Through Rate
applicable to the related Class of Principal Balance Certificates, and has a
Notional Amount equal to the Middle-Tier Balance of its related Middle-Tier
Regular Interest. The Class X Components, related Middle-Tier Regular Interests,
and related Class of Principal Balance Certificates are as follows:
Middle-Tier Regular Principal Balance
Class X Component Interests Certificates
----------------- --------- ------------
Class X-A1 Component Class A-1M Interest Class A-1 Certificates
Class X-A2 Component Class A-2M Interest Class A-2 Certificates
Class X-B Component Class B-M Interest Class B Certificates
Class X-C Component Class C-M Interest Class C Certificates
Class X-D Component Class C-M Interest Class D Certificates
Class X-E Component Class E-M Interest Class E Certificates
Class X-F Component Class F-M Interest Class F Certificates
Class X-G Component Class G-M Interest Class G Certificates
Class X-H Component Class H-M Interest Class H Certificates
Class X-J Component Class ▇-▇ Interest Class J Certificates
Class X-K Component Class K-M Interest Class K Certificates
Class X-L Component Class ▇-▇ Interest Class L Certificates
"Class X Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate (as of the Closing Date) minus the
Weighted Average Pass-Through Rate.
"Closing Date": March 16, 1999.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, any successor statute thereto, and any temporary or final regulations of
the United States Department of the Treasury promulgated pursuant thereto.
"Collection Account": The trust account or accounts created and
maintained by the Servicer pursuant to Section 3.05(a), which shall be entitled
"Banc One Mortgage Capital Markets, LLC, in trust for LaSalle National Bank, as
Trustee, in trust for Holders of Deutsche Mortgage & Asset Receiving
Corporation, COMM 1999-1 Commercial Mortgage Pass-Through Certificates,
Collection Account" and which must be an Eligible Account.
"Collection Period": With respect to a Distribution Date and each
Mortgage Loan, the period beginning on the day after the last day of the
preceding Collection Period (or, in the case of the Distribution Date occurring
in April 1999, on the day after the Cut-off Date) and ending at the close of
business on the 6th business day prior to such Distribution Date.
"Commission": The Securities and Exchange Commission.
15
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit M-l 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 three periods (to the
extent such information is available): (i) the most current available
year-to-date or current trailing 12 month period, (ii) the previous two full
fiscal years, and (iii) the "base year" (representing the original analysis of
information used as of the Cut-off Date). For the purposes of the Servicer's
production of any such report that is required to state information for any
period prior to the Cut-off Date, the Servicer may conclusively rely (without
independent verification), absent manifest error, on information provided to it
by the Mortgage Loan Seller.
"Controlling Class": As of any date of determination, the Class of
Regular Certificates (other than the Class X Certificates) with the latest
alphabetical Class designation that has a then-aggregate Certificate Balance (in
the case of each Class of Certificates other than the Class J, Class K and Class
L Certificates, net of any Appraisal Reduction Amount) at least equal to the
lesser of (i) 25% of the initial aggregate Certificate Balance of such Class of
Regular Certificates as of the Closing Date and (ii) 2% of the aggregate
Certificate Balance (in the case of each Class of Certificates other than the
Class J, Class K and Class L Certificates, net of any Appraisal Reduction
Amount) of all the Regular Certificates (other than the Class X Certificates) as
of such date of determination. As of the Closing Date, the Controlling Class
will be the Class L Certificates. For purposes of determining the Controlling
Class, the Class A-1 and Class A-2 Certificates collectively will be treated as
one Class.
"Controlling Class Certificateholder": Each holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such holder (or Certificate Owner).
"Corporate Trust Office": The principal office of the Trustee located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the
principal trust office of any successor trustee qualified and appointed pursuant
to Section 8.08.
"Corrected Mortgage Loan": As defined under the definition of Specially
Serviced Mortgage Loan.
"Cross-over Date": means the Distribution Date on which the Certificate
Balance of each Class of Certificates other than the Class A-1 and Class A-2
Certificates have been reduced to zero.
"CSSA Reports": Reports substantially in the forms of the CSSA standard
reporting package attached as Exhibits ▇-▇, ▇-▇▇ ▇▇▇ ▇-▇▇, as the same may be
modified from time to time, with reasonable time allowed for the implementation
of such modified forms.
"Custodial Agreement": The Custodial Agreement, if any, from time to
time in effect between the Custodian named therein and the Trustee, in the form
agreed to by the Trustee
16
and the Custodian, as the same may be amended or modified from time to time in
accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and,
unless the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee or the Servicer or any Affiliate of
the Trustee or the Servicer, but may not be the Depositor or any Affiliate
thereof.
"Cut-off Date": March 1, 1999.
"DBS": Deutsche Bank Securities, Inc.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan as of
any date of determination and for any period, the ratio calculated by dividing
the net operating income or net cash flow, as applicable, of the related
Mortgaged Property or Mortgaged Properties, as the case may be, for the most
recently ended one-year period for which data is available from the related
Borrower, before payment of any scheduled payments of principal and interest on
such Mortgage Loan but after funding of required reserves and "normalized" by
the Servicer pursuant to Section 3.13, by the annual debt service (or, with
respect to interest only Mortgage Loans, the future amortizing interest
payments) required by such Mortgage Loan. Annual debt service (or, with respect
to interest only Mortgage Loans, the future amortizing interest payments) shall
be calculated by multiplying the Monthly Payment in effect on such date of
determination for such Mortgage Loan by 12.
"Default Interest": With respect to any Mortgage Loan, interest accrued
on such Mortgage Loan at the excess of (i) the related Default Rate over (ii)
the sum of the related Mortgage Rate and, if applicable, the related Excess
Rate.
"Default Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(e), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Deutsche Mortgage & Asset Receiving
Corporation, COMM 1999-1 Commercial Mortgage Pass-Through Certificates, Default
Interest Distribution Account" and which must be an Eligible Account. The
Default Interest Distribution Account shall not be an asset of the Lower-Tier
REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Default Rate": With respect to each Mortgage Loan, the per annum rate
at which interest accrues on such Mortgage Loan following any event of default
on such Mortgage Loan, including a default in the payment of a Monthly Payment
or a Balloon Payment.
"Defect": As defined in Section 2.03(e).
"Delinquency": Any failure of a Borrower to make a scheduled payment on
a Due Date.
17
"Delinquent Loan Status Report": A report substantially containing the
content described in Exhibit M-2 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the respective Distribution Date, were
delinquent 30 days to 59 days, delinquent 60 days to 89 days, delinquent 90 days
or more, current but specially serviced, or were in foreclosure but were not REO
Property.
"Denomination": As defined in Section 5.01(a).
"Depositor": Deutsche Mortgage & Asset Receiving Corporation, a
Delaware corporation, and its successors and assigns.
"Depository": The Depository Trust Company or a successor appointed by
the Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Determination Date": The 6th Business Day preceding each Distribution
Date.
"Directing Certificateholder": The Controlling Class Certificateholder
selected by more than 50% of the Controlling Class Certificateholders, by
Certificate Balance, as certified by the Trustee from time to time; provided,
however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected or (iii) upon receipt of a notice from a
majority of the Controlling Class Certificateholders, by Certificate Balance,
that a Directing Certificateholder is no longer designated, the Controlling
Class Certificateholder that owns the largest aggregate Certificate Balance of
the Controlling Class will be the Directing Certificateholder; provided,
further, that in order for the Trustee to certify the status of the Directing
Certificateholder, the Directing Certificateholder must provide notice and
certification to the Trustee as to its status as Directing Certificateholder
upon which the Trustee shall use its best efforts to verify such status. In the
event that the Trustee is unable to verify the status of the Directing
Certificateholder, it shall provide written notice to the Holders of the
Controlling Class as to the designation of the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space for occupancy only within the
meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business, or any use of
such REO Property in a trade or business conducted by the Trust Fund, or the
performance of any construction work on the REO Property other than through an
Independent Contractor; provided, however, that the Special Servicer, on behalf
of the Trust Fund, shall not be considered to Directly Operate an REO Property
solely because the Special Servicer, on behalf of the Trust Fund, establishes
rental terms, chooses tenants, enters into or
18
renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section l.856-4(b)(5)(ii).
"Discount Rate": With respect to each Mortgage Loan as to which there
has been a prepayment during a Collection Period and for which a Prepayment
Premium is collected, the yield (compounded monthly) for "This Week" as reported
by the Federal Reserve Board in Federal Reserve Statistical Release H.15(519)
for the constant maturity treasury security having a maturity coterminous with
the Anticipated Repayment Date, in the case of any Mortgage Loan that is
indicated on the Mortgage Loan Schedule as having a Revised Rate, or the
Maturity Date, in the case of each other Mortgage Loan, of such Mortgage Loan as
of the related Determination Date. If there is no Discount Rate for instruments
having a maturity coterminous with the Maturity Date or Anticipated Repayment
Date, as applicable, of the applicable Mortgage Loan, then the Discount Rate
will be equal to the linear interpolation of the yields of the constant maturity
treasury securities with maturities next longer and shorter than such Maturity
Date or Anticipated Repayment Date.
"Discount Rate Fraction": With respect to the distribution of any
Prepayment Premium received with respect to any Mortgage Loan to one or more
Classes of Certificates on any Distribution Date, a fraction (not greater than
1.0 or less than zero), (a) the numerator of which is equal to the excess of (x)
the Pass-Through Rate for such Class of Certificates over (y) the relevant
Discount Rate and (b) the denominator of which is equal to the excess of (x) the
Mortgage Rate of the related Mortgage Loan over (y) the relevant Discount Rate;
provided, that if there are two or more of such Classes of Certificates entitled
to distributions from the Principal Distribution Amount on such Distribution
Date, the Pass-Through Rate for purposes of clause (x) above will be the
Pass-Through Rate for the Class with the earlier alphabetic or numeric
designation.
"Disqualified Non-U.S. Person": With respect to a Class R, Class MR or
Class LR Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R, Class MR or Class LR Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Certificate Registrar with an effective IRS
Form 4224 (or applicable successor Form promulgated by the Internal Revenue
Service for the purpose of providing and certifying the information provided on
Form 4224 as of the Closing Date) or (ii) a Non-U.S. Person that has delivered
to both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R, Class MR
or Class LR Certificate to it is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of the Class
R, Class MR or Class LR Certificate will not be disregarded for federal income
tax purposes.
"Disqualified Organization": Any of (a) the United States, a State or
any political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental
19
unit), (b) a foreign government, International Organization (as defined below)
or agency or instrumentality of either of the foregoing, (c) an organization
that is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Code Section 511 on unrelated business taxable income) on any excess
inclusions (as defined in Code Section 860E(c)(1)) with respect to the Class R,
Class MR or Class LR Certificates (except certain farmers' cooperatives
described in Code Section 521), (d) rural electric and telephone cooperatives
described in Code Section 1381(a)(2), or (e) any other Person so designated by
the Certificate Registrar based upon an Opinion of Counsel to the effect that
any Transfer to such Person may cause the Upper-Tier REMIC, the Middle-Tier
REMIC or Lower-Tier REMIC to be subject to tax or to fail to qualify as a REMIC
at any time that the Certificates are outstanding. For the purposes of this
definition, the terms "United States," "State" and "International Organization"
shall have the meanings set forth in Code Section 7701 or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained as a separate trust account or accounts by the Trustee pursuant to
Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM
1999-1 Commercial Mortgage Pass-Through Certificates, Distribution Account" and
which must be an Eligible Account.
"Distribution Date": The 15th day of each month, or if such 15th day is
not a Business Day, the Business Day immediately following such 15th day,
commencing in April 1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to any Mortgage Loan, the first day of the
month in the related Collection Period.
"Early Termination Notice Date": Any date as of which the aggregate
Stated Principal Balance of the Mortgage Loans is less than 1.0% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Elder Trust Certificate": The pass-through certificate representing a
50% pro rata interest in the Elder Trust Meridian 6 Mortgage Loan being held in
a separate grantor trust entitled the Elder Trust Loan Trust.
"Eligible Account": Any of (i) an account or accounts maintained with a
depository institution or trust company the short term unsecured debt
obligations or commercial paper of which are rated at least P-l by Moody's and
F-1+ by Fitch in the case of accounts in which funds are held for 30 days or
less or, in the case of accounts in which funds are held for more than 30 days,
the long term unsecured debt obligations of which are rated at least "AA" by
Fitch and "Aa3" by Moody's) or (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity which, in the case of a state chartered
depository institution or trust company is subject to regulations substantially
similar to 12 C.F.R. (section)9.10(b), having in either case a combined capital
20
and surplus of at least $50,000,000 and subject to supervision or examination by
federal and state authority, or (iii) any other account that, as evidenced by a
written confirmation from each Rating Agency would not, in and of itself, cause
a downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates, which may be an account maintained with the Trustee or the
Servicer. Eligible Accounts may bear interest.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A or (ii) an Institutional Accredited Investor.
"Environmental Report": The environmental audit report or reports with
respect to each Mortgaged Property delivered to the Mortgage Loan Seller in
connection with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may
be amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account may
be a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Servicer
pursuant to the related Mortgage, Cash Collateral Account Agreement, Lock-Box
Agreement or Loan Agreement for the account of such Borrower for application
toward the payment of taxes, insurance premiums, assessments and similar items
in respect of the related Mortgaged Property.
"Euroclear": ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Servicer Event of Default or Special Servicer
Event of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, interest accrued on such
Mortgage Loan allocable to the Excess Rate.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(f), which shall be entitled "Deutsche Mortgage & Asset
Receiving Corporation, LaSalle National Bank, as Trustee, in trust for Holders
of Deutsche Mortgage & Asset Receiving Corporation, COMM 1999-1 Commercial
Mortgage Pass-Through Certificates, Excess Interest Distribution Account" and
which must be an Eligible Account. The Excess Interest Distribution Account
shall not be an asset of the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
21
"Excess Prepayment Interest Shortfall": With respect to the Mortgage
Loans, the aggregate Prepayment Interest Shortfalls in excess of the sum of (i)
the Prepayment Interest Excess and (ii) the aggregate Master Servicing Fee.
"Excess Rate": With respect to each of the Mortgage Loans indicated on
the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Loss Estimate Report, Historical Loan Modification Report, REO Status Report,
Operating Statement Analysis, Operating Statement Analysis Worksheet, Watch
List, or Annual Compliance Report to be filed with the Commission, under cover
of the related form required by the Exchange Act.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHA": The Federal Housing Administration.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or Mortgage Loan subject to repurchase by the Depositor or the
Mortgage Loan Seller pursuant to Sections 2.03(d) or 2.03(e), the recovery of
all Insurance Proceeds, Liquidation Proceeds, the related Repurchase Price and
other payments or recoveries (including proceeds of the final sale of any REO
Property) which the Servicer (or in the case of a Specially Serviced Mortgage
Loan, the Special Servicer), in its reasonable judgment as evidenced by a
certificate of a Servicing Officer delivered to the Trustee, the Custodian and
the Automobile Adviser (with respect to the Automobile Loans) (and the Servicer,
if the Certificate is from the Special Servicer), expects to be finally
recoverable. The Servicer shall maintain records, prepared by a Servicing
Officer, of each Final Recovery Determination until the earlier of (i) its
termination as Servicer hereunder and the transfer of such records to a
successor servicer and (ii) five years following the termination of the Trust
Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation
in its capacity as fiscal agent of the Trustee, or its successor in interest, or
any successor fiscal agent appointed as herein provided.
"Fitch": Fitch IBCA, Inc., or its successor in interest.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or
such successor form as the Commission may specify from time to time.
22
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"GACC": German American Capital Corporation.
"GACC Loans": The Mortgage Loans conveyed to the Depositor pursuant to
the GACC Purchase Agreement.
"GACC Purchase Agreement": The Mortgage Loan Purchase Agreement dated
February 23, 1999 between GACC and the Depositor, a copy of which is attached
hereto as Exhibit H.
"Global Certificates": The Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E and Class F Certificates.
"Grantor Trust": The grantor trust described in the Preliminary
Statement hereto.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Healthcare Loans": Mortgage Loans which are listed on Exhibit B-2
hereto.
"Healthcare Property": A Mortgage Property securing a Healthcare Loan.
"Historical Loan Modification Report": A report substantially
containing the content described in Exhibit M-3 attached hereto, setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Determination Date immediately preceding the respective Distribution Date,
have been modified pursuant to this Agreement (i) during the related Collection
Period and (ii) since the Cut-off Date, showing the original and the revised
terms thereof.
"Historical Loss Estimate Report": A report substantially containing
the content described in Exhibit M-4 attached hereto, setting forth, among other
things, as of the close of business on the Determination Date immediately
preceding the respective Distribution Date, (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, set forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": With respect to any Certificate, a Certificateholder; and
with respect to any Lower-Tier Regular Interest and any Middle-Tier Regular
Interest, the Trustee.
23
"Indemnified Party": As defined in Section 8.05(c).
"Indemnifying Party": As defined in Section 8.05(c).
"Independent": When used with respect to any specified Person, any such
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Servicer,
the Special Servicer, any Borrower or Manager or any Affiliate thereof, and (ii)
is not connected with any such Person thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Servicer nor the Special Servicer shall be
considered to be an Independent Contractor under the definition in this clause
(i) unless an Opinion of Counsel (at the expense of the party seeking to be
deemed an Independent Contractor) addressed to the Servicer and the Trustee has
been delivered to the Trustee to that effect) or (ii) any other Person
(including the Servicer and the Special Servicer) if the Servicer, on behalf of
itself and the Trustee, has received an Opinion of Counsel (at the expense of
the party seeking to be deemed an Independent Contractor) to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code) or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully
registered physical form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements
of Rule 501(a)(l), (2), (3) or (7) of Regulation D promulgated under the Act, or
an entity in which all the equity owners meet such requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance policy relating to a Mortgage Loan
(including any amounts paid by the Servicer pursuant to Section 3.08).
24
"Interest Accrual Amount": With respect to any Distribution Date and
any Class of Certificates (other than the Class Q-l, Class Q-2, Class R, Class
MR and Class LR Certificates), an amount equal to interest for the related
Interest Accrual Period at the Pass-Through Rate for such Class on the related
Certificate Balance or Notional Balance, as applicable (provided, that for
interest accrual purposes any distributions in reduction of Certificate Balance
or Notional Balance, as applicable, as a result of allocations of Realized
Losses on the Distribution Date occurring in an Interest Accrual Period shall be
deemed to have been made on the first day of such Interest Accrual Period) minus
the amount of any Excess Prepayment Interest Shortfall allocated to such Class
with respect to such Distribution Date. Calculations of interest due in respect
of the Certificates shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
"Interest Reserve Account": The trust account or accounts created and
maintained as a separate trust account or accounts by the Trustee pursuant to
Section 3.05(c), which shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM
1999-1 Mortgage Pass-Through Certificates, Interest Reserve Account" and which
must be an Eligible Account.
"Interested Person": As of any date of determination, the Depositor,
the Servicer, Special Servicer, the Trustee, the Fiscal Agent, any Borrower, any
Manager of a Mortgaged Property, any Independent Contractor engaged by the
Special Servicer pursuant to Section 3.17, or any Person known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"Liquidation Expenses": Expenses incurred by the Servicer, the Special
Servicer and the Trustee in connection with the liquidation of any Mortgage Loan
or property acquired in respect thereof (including, without limitation, legal
fees and expenses, committee or referee fees, and, if applicable, brokerage
commissions, and conveyance taxes) and any Property Protection Expenses incurred
with respect to such Mortgage Loan or such property including interest thereon
at the Advance Rate not previously reimbursed from collections or other proceeds
therefrom.
"Liquidation Fee": An amount equal to 1.0% of all payments or proceeds
received in connection with the liquidation of any Specially Serviced Mortgage
Loan.
"Liquidation Proceeds": The amount (other than Insurance Proceeds)
received in connection with (i) the taking of a Mortgaged Property (or portion
thereof) by exercise of the power of eminent domain or condemnation, (ii) the
liquidation of a Specially Serviced Mortgage
25
Loan through a trustee's sale, foreclosure sale or otherwise or (iii) a sale of
a Mortgage Loan or an REO Property in accordance with Section 3.18 or Section
9.01.
"Loan Agreement": With respect to any Mortgage Loan, the loan
agreement, if any, between the related Originator and the Borrower, pursuant to
which such Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the documents
executed or delivered in connection with the origination of such Mortgage Loan
or subsequently added to the related Mortgage File.
"Loan Number": With respect to any Mortgage Loan, the loan number by
which such Mortgage Loan was identified on the books and records of the
Depositor or any sub-servicer for the Depositor, as set forth in the Mortgage
Loan Schedule.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to the related Mortgage Loan documents
to receive revenues therefrom. Any Lock-Box Account shall be beneficially owned
for federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan and Section 3.07, which Person shall be taxed on
all reinvestment income or gain thereon. The Servicer shall be permitted to make
withdrawals therefrom for deposit into the related Cash Collateral Accounts in
accordance with the terms of the related Mortgage Loan.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box
agreement, if any, between the related Originator and the Borrower, pursuant to
which the related Lock-Box Account, if any, may have been established.
"Lower-Tier Balance": With respect to any Class of Lower-Tier Regular
Interest, initially will equal the Stated Principal Balance as of the Cut-off
Date of the Mortgage Loan to which such Class relates, and from time to time
will equal such amount reduced by the amount of distributions of the Lower-Tier
Distribution Amount, Realized Losses and Appraisal Reductions allocable thereto
in all prior periods as described in Section 4.01(a) hereof.
"Lower-Tier Distribution Amount": As defined in Section 4.01(a)(ii).
"Lower-Tier Regular Interests": The 221 separate classes of "regular
interests" issued by the Lower-Tier REMIC and held by the Trustee as assets of
the Middle-Tier REMIC. Each Lower-Tier Regular Interest (i) relates to a
separate Mortgage Loan and the collections thereon (other than any Default
Interest or Excess Interest) and any REO Property acquired in respect thereof,
(ii) is issued in uncertificated form as a single indivisible interest and is
designated with a number (Lower-Tier Interest 1 through Lower-Tier Interest 221)
that corresponds to the Loan Number assigned to its related Mortgage Loan, (iii)
has an initial Lower-Tier Balance equal to the Stated Principal Balance of its
related Mortgage Loan as of the Cut-off Date, (iv) has a Pass-Through Rate equal
to the Net Mortgage Pass-Through Rate of its related Mortgage Loan as of the
Closing Date, (v) has a "latest possible maturity date," within the
26
meaning of Treasury Regulations section 1.860G-1(a), that is the Scheduled Final
Distribution Date, and (vi) is entitled to the distributions in the amounts and
at the times specified in Section 4.01(a).
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest and Excess
Interest), collections thereon, any REO Property acquired in respect thereof and
amounts held from time to time in the Collection Account and the Distribution
Account in respect thereof, with respect to which the Trustee will make an
election to be treated as a "real estate mortgage investment conduit" within the
meaning of the REMIC Provisions.
"LTV": With respect to any Mortgage Loan and any date of determination,
the outstanding principal balance of such Mortgage Loan as of such date divided
by the appraised value of the Mortgaged Properties securing such Mortgage Loan
as evidenced by an Updated Appraisal obtained by the Servicer or an update
thereto.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan, the
Management Agreement, if any, by and between the Manager and the related
Borrower, or any successor Management Agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property manager for
the related Mortgaged Properties.
"Master Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the Master Servicing Fee Rate and (ii) the Stated Principal
Balance of such Mortgage Loan as of the Due Date in the immediately preceding
Collection Period (without giving effect to payments of principal on such
Mortgage Loan on such Due Date).
"Master Servicing Fee Rate": A rate equal to 0.01% per annum.
"Maturity Date": With respect to each Mortgage Loan, the Maturity Date
as set forth on the Mortgage Loan Schedule.
"Middle-Tier Balance": With respect to any Class of Middle-Tier Regular
Interest, initially will equal the initial Certificate Balance of the Class of
Principal Balance Certificates to which such Middle-Tier Regular Interest
relates, and from time to time will equal such amount reduced by the amount of
distributions of the Middle-Tier Distribution Amount, Realized Losses and
Appraisal Reductions allocable thereto in all prior periods as described in
Section 4.01(a) hereof.
"Middle-Tier Distribution Account": The trust account or accounts
created and maintained either as a separate trust account or accounts or as a
subaccount or subaccounts of the Distribution Account by the Trustee pursuant to
Section 3.05(d), which shall be entitled "LaSalle
27
National Bank, as Trustee, in trust for Holders of Deutsche Mortgage Asset &
Receiving Corporation, COMM 1999-1 Commercial Mortgage Pass-Through
Certificates, Middle-Tier Distribution Account" and which shall be an Eligible
Account or a subaccount of an Eligible Account.
"Middle-Tier Distribution Amount": As defined in Section 4.01(a)(iii).
"Middle-Tier Regular Interest": The Class A-1M, Class A-2M, Class B-M,
Class C-M, Class ▇-▇, Class E-M, Class F-M, Class G-M, Class H-M, Class ▇-▇,
Class K-M and Class ▇-▇ Interests, issued by the Middle-Tier REMIC to the
Trustee and held as assets of the Upper-Tier REMIC. Each Middle-Tier Regular
Interest (i) relates to a separate Class of Principal Balance Certificates and
to a separate Class X Component, (ii) is uncertificated, (iii) has an initial
Middle-Tier Balance equal to the initial Certificate Principal Balance of its
related Class of Principal Balance Certificates, (iv) has a Pass-Through Rate
equal to the weighted average of the Pass-Through Rates of the Lower-Tier
Interests as of the Closing Date, which also equals the Weighted Average Net
Mortgage Pass-Through Rate of the Mortgage Loans as of the Closing Date, (v) has
a "latest possible maturity date," within the meaning of Treasury Regulations
section 1.860G-1(a), that is the Rated Final Distribution Date, and (vi) is
entitled to the distributions in the amounts and at the times specified in
Section 4.01(a).
"Middle-Tier REMIC": The segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Middle-Tier Distribution Account, with respect to which pool the
Trustee will make an election to be treated as a "real estate mortgage
investment conduit" within the meaning of the REMIC Provisions.
"Modified Mortgage Loan": Any Specially Serviced Mortgage Loan which
has been modified by the Special Servicer pursuant to Section 3.26 in a manner
that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing
current Monthly Payments with respect to such Mortgage Loan),
including any reduction in the Monthly Payment;
(B) except as expressly contemplated by the related Mortgage, results
in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount not less than the fair market
value (as is), as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Borrower and upon
which the Special Servicer may conclusively rely), of the property
to be released; or
(C) in the good faith and reasonable judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan
or reduces the likelihood of timely payment of amounts due
thereon.
28
"Monthly Payment": With respect to any Mortgage Loan (other than any
REO Mortgage Loan) and any Due Date, the scheduled monthly payment of principal,
if any, and interest at the Mortgage Rate, excluding any Balloon Payment (but
not excluding any constant Monthly Payment due on a Balloon Loan), which is
payable by the related Borrower on such Due Date under the related Note. With
respect to an REO Mortgage Loan, the monthly payment that would otherwise have
been payable on the related Due Date had the related Note not been discharged,
determined as set forth in the preceding sentence and on the assumption that all
other amounts, if any, due thereunder are paid when due.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or its successor in
interest.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage
documents listed in Section 2.01(i) through (xvii) pertaining to such particular
Mortgage Loan and any additional documents required to be added to such Mortgage
File pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans and the Elder Trust
Certificate transferred and assigned to the Trustee pursuant to Section 2.01 and
from time to time held in the Trust Fund. Certain of the Mortgage Loans were
acquired by the Mortgage Loan Seller exclusive of a portion of the interest
payments payable thereon (the "Retained Interest"), which portion was retained
by the originator of the Mortgage Loan, is not included in the Mortgage Loan
transferred and assigned to the Trustee hereunder, and for each of such Mortgage
Loans is in the amount set forth on Exhibit N attached hereto. The mortgage
loans originally so transferred, assigned and held are identified on the
Mortgage Loan Schedule as of the Closing Date. Such term shall include any REO
Mortgage Loan, Specially Serviced Mortgage Loan or any Mortgage Loan that has
been defeased in whole or in part.
"Mortgage Loan Purchase Agreement": The GACC Purchase Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the
Trust Fund as of the Closing Date being attached hereto as Exhibit B-1, which
list shall set forth the following information with respect to each Mortgage
Loan:
(a) the loan number;
(b) the street address (including city, state and zip code) of the
related Mortgaged Property;
(c) the Mortgage Rate in effect as of the Cut-off Date and that the
Mortgage Loan is a fixed rate Mortgage Loan;
(d) the original principal balance;
29
(e) the Stated Principal Balance as of the Cut-off Date;
(f) the (A) Maturity Date for each Mortgage Loan and (B) with respect
to each Mortgage Loan with an Anticipated Repayment Date, the
Anticipated Repayment Date;
(g) the Due Date;
(h) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(i) whether such Mortgage Loan has an Anticipated Repayment Date;
(j) the Primary Servicing Fee Rate;
(k) whether the Mortgage Loan is an Actual/360 Loan; and
(l) whether such Mortgage Loan is a Healthcare Loan or an Automobile
Loan.
The Mortgage Loan Schedule shall also set forth the aggregate Stated Principal
Balance as of the Cut-off Date for all of the Mortgage Loans. Such list may be
in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Seller": GACC.
"Mortgage Pass-Through Rate": With respect to the Mortgage Loans that
provide for calculations of interest based on twelve months of 30 days each, the
Mortgage Pass-Through Rate for any Interest Accrual Period is equal to the
Mortgage Rate thereof. Notwithstanding the foregoing, if any Mortgage Loan does
not accrue interest on the basis of a 360-day year consisting of twelve 30-day
months, then the "Mortgage Pass-Through Rate" of such Mortgage Loan for any
Interest Accrual Period will be the annualized rate at which interest would have
to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued in respect of such Mortgage Loan during such Interest
Accrual Period at the related Mortgage Rate.
"Mortgage Rate": With respect to each Mortgage Loan and any Interest
Accrual Period, the annual rate, not including any Excess Rate, at which
interest accrues on such Mortgage Loan during such period (in the absence of a
default), as set forth on the Mortgage Loan Schedule. The "Mortgage Rate" for
purposes of calculating the Weighted Average Net Mortgage Pass-Through Rate
shall be the Mortgage Rate of such Mortgage Loan without taking into account any
reduction in the interest rate by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers or a reduction in
interest or principal due to a modification pursuant to Section 3.30 hereof.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple estate, and, with respect
to certain
30
Mortgage Loans, a leasehold estate or both a leasehold estate and a
fee simple estate, or a leasehold estate in a portion of the property and a fee
simple estate in the remainder, in a parcel of land improved by a commercial
property, together with any personal property, fixtures, leases and other
property or rights pertaining thereto.
"Net Default Interest": As defined in Section 3.05(e).
"Net Income": With respect to any REO Property, all income received in
connection with such REO Property, less any operating expenses, including, but
not limited to, utilities, real estate taxes, property management fees,
insurance premiums, leasing commission fees, expenses for maintenance and
repairs and any other capital expenses directly related to such REO Property and
permitted to be incurred under this Agreement.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the express requirements
of the Mortgage or Note or other documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with
respect to any Mortgage Loan net of the amount of (i) Liquidation Expenses
incurred with respect thereto and, (ii) with respect to proceeds received in
connection with the taking of a Mortgaged Property (or portion thereof) by the
power of eminent domain in condemnation, amounts required to be applied to the
restoration or repair of the related Mortgaged Property.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage Loan and
any Distribution Date, the per annum rate equal to the Mortgage Pass-Through
Rate for such Mortgage Loan, minus, for any Mortgage Loan, the aggregate of the
applicable Servicing Fee Rate and Trustee Fee Rate.
"Net Prepayment Interest Excess": The excess amount, if any, that the
aggregate of all Prepayment Interest Excess for all Mortgage Loans exceeds the
aggregate of all Prepayment Interest Shortfalls for all Mortgage Loans as of any
Distribution Date.
"Net Prepayment Interest Shortfall": Means the amount, if any, that the
aggregate of Prepayment Interest Shortfalls for all Mortgage Loans exceed the
Prepayment Interest Excess for such Mortgage Loans as of any Distribution Date.
"Net REO Proceeds": With respect to each REO Property, REO Proceeds
with respect to such REO Property net of any insurance premiums, taxes,
assessments and other costs and expenses permitted to be paid therefrom pursuant
to Section 3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the
Trust Fund, including any lease renewed or extended on behalf of the Trust Fund
if the Trust Fund has the right to renegotiate the terms of such lease.
31
"Nonrecoverable Advance": Any portion of an Advance proposed to be made
or previously made which has not been previously reimbursed to the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, and which, in
the good faith business judgment of the Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as applicable, will not or, in the case of a
proposed Advance, would not be ultimately recoverable from late payments,
Insurance Proceeds, Liquidation Proceeds and other collections on or in respect
of the related Mortgage Loan. The judgment or determination by the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance shall be evidenced in the case of the Servicer or Special
Servicer, by a certificate of a Servicing Officer delivered to the Trustee, the
Fiscal Agent, the Depositor and, in the case of the Special Servicer, to the
Servicer, and in the case of the Trustee or the Fiscal Agent, by a certificate
of a Responsible Officer of the Trustee or Fiscal Agent, as applicable,
delivered to the Depositor (and the Trustee if the Certificate is from the
Fiscal Agent), which in each case sets forth such judgment or determination and
the procedures and considerations of the Servicer, Special Servicer, Trustee or
Fiscal Agent, as applicable, forming the basis of such determination (including,
but not limited to, information selected by the Person making such judgment or
determination in its good faith discretion, such as related income and expense
statements, rent rolls, occupancy status, property inspections, Servicer,
Special Servicer, Trustee or Fiscal Agent inquiries, third party engineering and
environmental reports, and an appraisal conducted by an MAI appraiser in
accordance with Appraisal Institute standards or any Updated Appraisal thereof
conducted within the past 12 months; copies of such documents to be included
with the certificate of the Servicing Officer or the Responsible Officer). Any
determination of non-recoverability made by the Servicer may be made without
regard to any value determination made by the Special Servicer other than
pursuant to an Updated Appraisal. Notwithstanding the above, the Trustee and the
Fiscal Agent shall be entitled to rely upon any determination by the Servicer
that any Advance previously made is a Nonrecoverable Advance or that any
proposed Advance would, if made, constitute a Nonrecoverable Advance (and with
respect to a proposed P&I Advance, the Trustee and the Fiscal Agent, as
applicable, shall rely on the Servicer's determination that the Advance would be
a Nonrecoverable Advance if the Trustee or Fiscal Agent, as applicable,
determines that it does not have sufficient time to make such a determination).
"Non-U.S. Person": A person that is not a U.S. Person.
"Note": With respect to any Mortgage Loan as of any date of
determination, the note or other evidence of indebtedness and/or agreements
evidencing the indebtedness of a Borrower under such Mortgage Loan, including
any amendments or modifications, or any renewal or substitution notes, as of
such date.
"Notice of Termination": Any of the notices given to the Trustee by the
Depositor, the Servicer or any Holder of a Class LR Certificate pursuant to
Section 9.01(c).
"Notional Amount" or "Notional Balance": With respect to the Class X
Certificates, (a) on or prior to the Distribution Date occurring in April 1999,
a notional principal amount equal to the aggregate initial Notional Balance of
such Class, as specified in the
32
Preliminary Statement hereto, and (b) as of any Distribution Date after April
1999, a notional principal amount equal to the sum of the Middle-Tier Balances
of the Middle-Tier Interests, which corresponds to the aggregate Lower-Tier
Balances and to the aggregate Stated Principal Balance of the Mortgage Loans
immediately prior to such Distribution Date. With respect to each Class X
Component, (a) on or prior to the Distribution Date occurring in April 1999, an
initial notional principal amount equal to the initial Middle-Tier Balance of
its related Class of Middle-Tier Regular Interests, and (b) as of any
Distribution Date after April 1999, a notional principal amount equal to the
Middle-Tier Balance of its related Middle-Tier Regular Interest immediately
prior to such Distribution Date.
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President
(however denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Servicer or Special Servicer customarily performing functions similar to those
performed by any of the above designated officers, any Servicing Officer and
also with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, or an authorized officer of the Depositor, and delivered to
the Depositor, the Trustee or the Servicer, as the case may be.
"Operating Statement Analysis": With respect to each Mortgage Loan and
REO Mortgage Property, a report substantially containing the content described
in Exhibit M-7 attached hereto.
"Operating Statement Analysis Worksheet": A report prepared by the
Servicer or the Special Servicer, as the case may be, substantially containing
the content described in Exhibit M-8 attached hereto, presenting the
computations made in accordance with the methodology described in said Exhibit
M-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 (or, with respect to the Special Servicer, the Servicer) with each
annual operating statement for a Mortgaged Property pursuant to Section 3.13(d).
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Servicer,
as the case may be, acceptable to the Trustee, except that any opinion of
counsel relating to (a) qualification of the Upper-Tier REMIC, Middle-Tier REMIC
or Lower-Tier REMIC as a REMIC or the imposition of tax under the REMIC
Provisions on any income or property of any REMIC, (b) compliance with the REMIC
Provisions (including application of the definition of "Independent
Contractor"), (c) qualification of the Grantor Trust as a grantor trust under
the Code, or (d) a resignation of the Servicer pursuant to Section 6.04, must be
an opinion of counsel who is Independent of the Depositor and the Servicer.
"Originator": Any of (i) the Mortgage Loan Seller, and (ii) with
respect to any Mortgage Loan acquired by the Mortgage Loan Seller, the
originator of such Mortgage Loan.
33
"Ownership Interest": Any record or beneficial interest in a Class R,
Class MR or Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the
Servicer, the Trustee, or the Fiscal Agent pursuant to Section 4.06. Each
reference to the payment or reimbursement of a P&I Advance shall be deemed to
include, whether or not specifically referred to and without duplication,
payment or reimbursement of interest thereon at the Advance Rate from and
including the date of the making of such P&I Advance through and including the
date of payment or reimbursement.
"Pass-Through Rate": With respect to each Class of Certificates (other
than the Class Q-l, Class Q-2, Class R, Class MR and Class LR Certificates), the
Pass-Through Rate for such Class as set forth below:
Class Pass-Through Rate
----- -----------------
Class A-l Class A-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class X Class X Pass-Through Rate
Class B Class B Pass-Through Rate
Class C Class C Pass-Through Rate
Class D Class D Pass-Through Rate
Class E Class E Pass-Through Rate
Class F Class F Pass-Through Rate
Class G Class G Pass-Through Rate
Class H Class H Pass-Through Rate
Class J Class J Pass-Through Rate
Class K Class K Pass-Through Rate
Class L Class L Pass-Through Rate
With respect to each Class of Lower-Tier Regular Interests and each
Class of Middle-Tier Regular Interests, the Pass-Through Rate is as set forth in
the definition of "Lower-Tier Regular Interests" or "Middle-Tier Regular
Interests", as applicable.
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Certificate (except the Class Q-l, Class Q-2,
Class R, Class MR and Class LR Certificates), the percentage interest is equal
to the initial denomination of such Certificate divided by the initial
Certificate Balance or Notional Balance, as applicable, of such Class of
Certificates. With respect to any Class Q-l, Class Q-2, Class R, Class MR or
Class LR Certificate, the percentage interest is set forth on the face thereof.
34
"Permitted Investments": Any one or more of the following obligations
or securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the date upon which such funds are required to be drawn,
regardless of whether issued by the Depositor, the Servicer, the Trustee or any
of their respective Affiliates and having at all times the required ratings, if
any, provided for in this definition, unless each Rating Agency shall have
confirmed in writing to the Servicer that a lower rating would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates:
(i) direct obligations of, or obligations fully guaranteed as to
payment of principal and interest by, the United States or any
agency or instrumentality thereof provided such obligations are
backed by the full faith and credit of the United States of
America including, without limitation, obligations of the U.S.
Treasury (all direct or fully guaranteed obligations), the
Farmers Home Administration (certificates of beneficial
ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed
Title XI financing), the Small Business Administration
(guaranteed participation certificates and guaranteed pool
certificates), the U.S. Department of Housing and Urban
Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds);
provided, however, that each investment described in this clause
must (A) have a predetermined fixed dollar amount of principal
due at maturity, which cannot vary or change, (B) if rated by
S&P, not have an "r" highlighter affixed to its rating, (c) if
bearing a variable rate of interest, have its interest rate tied
to a single interest rate index plus a fixed spread (if any) and
move proportionately with that index, and (D) not be subject to
liquidation prior to its maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations),
the Farm Credit System (consolidated systemwide bonds and
notes), the Federal Home Loan Banks (consolidated debt
obligations), the Federal National Mortgage Association (debt
obligations), the Student Loan Marketing Association (debt
obligations), the Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations); provided, however,
that each investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity,
which cannot vary or change, (B) if rated by S&P, not have an
"r" highlighter affixed to its rating, (c) if bearing a variable
rate of interest, its interest rate tied to a single interest
rate index plus a fixed spread (if any) and move proportionately
with that index, and (D) not be subject to liquidation prior to
their maturity;
35
(iv) federal funds, unsecured certificates of deposit, time or
similar deposits, bankers' acceptances and repurchase
agreements, with maturities of not more than 365 days, of any
bank, the short term obligations of which are rated in the
highest short term rating category by each Rating Agency (or, if
not rated by Moody's or Fitch, otherwise acceptable to Moody's
or Fitch, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned
to the Certificates; provided, that with respect to Fitch,
unless Fitch provides notice in writing to the contrary, such
investments with Bank One, Texas, N.A., will not result in a
downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates by Fitch; provided, further
that the Servicer will provide notice to Fitch of any
downgrading, qualification or withdrawal of ▇▇▇▇▇'▇ rating of
Bank One, Texas, N.A.); provided, however, that the investment
described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity, which cannot vary or
change, (B) if rated by S&P, not have an "r" highlighter affixed
to its rating, (c) if bearing a variable rate of interest, have
its interest rate tied to a single interest rate index plus a
fixed spread (if any) and move proportionately with that index,
and (D) not be subject to liquidation prior to its maturity;
(v) fully Federal Deposit Insurance Corporation-insured demand and
time deposits in, or certificates of deposit of, or bankers'
acceptances issued by, any bank or trust company, savings and
loan association or savings bank, and, if such demand and time
deposits in, or certificates of deposit of, or bankers'
acceptances are not fully insured by the Federal Deposit
Insurance Corporation, the short term obligations of such bank
or trust company, savings and loan association or savings bank
are rated in the highest short term rating category by each
Rating Agency (or, if not rated by Moody's or Fitch, otherwise
acceptable to Moody's or Fitch, as applicable, as confirmed in
writing that such investment would not, in and of itself, result
in a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates; provided, that with
respect to Fitch, unless Fitch provides notice in writing to the
contrary, such investments with Bank One, Texas, N.A., will not
result in a downgrade, qualification or withdrawal of the
current ratings assigned to the Certificates by Fitch; provided,
further that the Servicer will provide notice to Fitch of any
downgrading, qualification or withdrawal of ▇▇▇▇▇'▇ rating of
Bank One, Texas, N.A.); provided, however, that each investment
described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity, which cannot vary or
change, (B) if rated by S&P, not have an "r" highlighter affixed
to its rating, (c) if bearing a variable rate of interest, its
interest rate tied to a single interest
36
rate index plus a fixed spread (if any) and move proportionately
with that index, and (D) not be subject to liquidation prior to
their maturity;
(vi) debt obligations with maturities of not more than 365 days rated
by each Rating Agency (or, if not rated by Moody's or Fitch,
otherwise acceptable to Moody's or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Certificates) in its
highest long-term unsecured rating category; provided, however,
that each investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity,
which cannot vary or change, (B) if rated by S&P, not have an
"r" highlighter affixed to its rating, (c) if bearing a variable
rate of interest, have its interest rate tied to a single
interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (D) not be subject to
liquidation prior to its maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date of
issuance thereof) with maturities of not more than 365 days and
that is rated by each Rating Agency (or, if not rated by Moody's
or Fitch, otherwise acceptable to Moody's or Fitch, as
applicable, as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to the
Certificates) in its highest short-term unsecured debt rating;
provided, however, that each investment described in this clause
must (A) have a predetermined fixed dollar amount of principal
due at maturity, which cannot vary or change, (B) if rated by
S&P, not have an "r" highlighter affixed to its rating, (c) if
bearing a variable rate of interest, have its interest rate tied
to a single interest rate index plus a fixed spread (if any) and
move proportionately with that index, and (D) not be subject to
liquidation prior to their maturity;
(viii) units of taxable money market mutual funds, issued by regulated
investment companies, which seek to maintain a constant net
asset value per share (including the Federated Prime Obligation
Money Market Fund (the "Fund")) so long as any such fund is
rated by each Rating Agency in its highest short-term unsecured
debt ratings category (or, if not rated by ▇▇▇▇▇'▇ or Fitch,
otherwise acceptable to ▇▇▇▇▇'▇ or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Certificates); and
(ix) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment,
provided that each Rating
37
Agency has confirmed in writing to the Servicer, Special
Servicer or Trustee, as applicable, that such investment would
not, in and of itself, result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to the
Certificates;
provided, however, that no instrument or security shall be a Permitted
Investment (a) unless such instrument is a "cash flow investment" earning a
passive return in the nature of interest pursuant to Code Section 860G(a)(6) or
(b) if (i) such instrument or security evidences a right to receive only
interest payments or (ii) the right to receive principal and interest payments
derived from the underlying investment provides a yield to maturity in excess of
120% of the yield to maturity at par of such underlying investment or (c) if it
may be redeemed of a price below the purchase price. No Permitted Investment may
be purchased at a price in excess of par or sold prior to maturity if such sale
would result in a loss of principal or a tax on a prohibited transaction under
Section 860F of the Code.
"Permitted Transferee": With respect to a Class R, Class MR or Class LR
Certificate, any Person or agent thereof that is a Qualified Institutional
Buyer, an Affiliated Person or an Institutional Accredited Investor, other than
(a) a Disqualified Organization, (b) any other Person so designated by the
Certificate Registrar who is unable to provide an Opinion of Counsel (provided
at the expense of such Person or the Person requesting the Transfer) to the
effect that the Transfer of an Ownership Interest in any Class R, Class MR or
Class LR Certificate to such Person will not cause the Upper-Tier REMIC, the
Middle-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that the Certificates are outstanding, (c) a Person that is a Disqualified
Non-U.S. Person and (d) a Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(k).
"Prepayment Assumption": The assumption that each Mortgage Loan with an
Anticipated Repayment Date prepays on such date and that each other Mortgage
Loan does not prepay prior to its respective Maturity Date.
"Prepayment Interest Excess": With respect to any Distribution Date,
the amount of the excess in collections of interest that arises with respect to
any Mortgage Loan if a Borrower makes a full Principal Prepayment or a Balloon
Payment during the related Collection Period, and the date such payment was made
(or, in the case of a Balloon Payment, the date through which interest thereon
accrues) occurred after the Due Date for such Mortgage Loan in the related
Collection Period.
"Prepayment Interest Shortfall": With respect to any Distribution Date,
the amount of any shortfall in collections of interest (adjusted to the
applicable Net Mortgage Pass-
38
Through Rate plus the Trustee Fee Rate) resulting from a full Principal
Prepayment or Balloon Payment on such Mortgage Loan during the related
Collection Period and prior to the related Due Date.
"Prepayment Premium": Payments received on a Mortgage Loan as the
result of a Principal Prepayment thereon, not otherwise due thereon in respect
of principal or interest, which are intended to compensate the holder of the
related Note for prepayment.
"Primary Servicing Fee Rate": As specified on Exhibit B-4 hereto.
"Principal Allocation Fraction": With respect to any Distribution Date
and each of Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F
and Class G Certificates, a fraction the numerator of which is the Principal
Distribution Amount allocable to such Class of Certificate for such Distribution
Date and the denominator of which is the Principal Distribution Amount for all
Class of Certificates as of such Distribution Date.
"Principal Distribution Amount": For any Distribution Date, an amount
equal to the sum of:
(i) the principal component of all scheduled Monthly Payments (other
than Balloon Payments) due on the Mortgage Loans on or before the related Due
Date (if received or advanced);
(ii) the principal component of all Assumed Scheduled Payments due on
or before the related Due Date (if received or advanced) with respect to any
Mortgage Loan that is delinquent in respect of its Balloon Payment;
(iii) the Stated Principal Balance of each Mortgage Loan that was,
during the related Collection Period, repurchased from the Trust Fund in
connection with the breach of a representation or warranty pursuant to Section
2.03, purchased pursuant to Section 3.18, or purchased from the Trust Fund
pursuant to Section 9.01;
(iv) the portion of Unscheduled Payments (to the extent not included in
clause (iii)) allocable to principal of any Mortgage Loan that was liquidated
during the related Collection Period;
(v) the principal component of all Balloon Payments and, to the extent
not included in the preceding clauses, any other principal payment on any
Mortgage Loan received on or after the Maturity Date thereof, to the extent
received during the related Collection Period;
(vi) to the extent not included in the preceding clauses (iii) or (iv),
all other Principal Prepayments received in the related Collection Period; and
(vii) to the extent not included in the preceding clauses, any other
full or partial recoveries in respect of principal, including Insurance
Proceeds, Liquidation Proceeds and Net
39
REO Proceeds received in the related Collection Period (in the case of clauses
(i) through (vii) net of any reimbursement for related outstanding P&I Advances
allocable to principal).
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by the Borrower
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing the full amount
of scheduled interest due on any date or dates in any month or months subsequent
to the month of prepayment.
"Private Global Certificate": Each of the Regulation S Global
Certificates or Rule 144A Global Certificates with respect to the Class G, H, J,
K and L Certificates if and so long as such class of Certificates is registered
in the name of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan, any advance made by the
Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or taxes and assessments or insurance
premiums, to the extent the making of any such advance is specifically provided
for in this Agreement, including, but not limited to, as provided in Section
3.04 and Section 3.24, as applicable. Each reference to the payment or
reimbursement of a Property Advance shall be deemed to include, whether or not
specifically referred to, payment or reimbursement of interest thereon at the
Advance Rate from and including the date of the making of such Advance through
and including the date of payment or reimbursement.
"Property Protection Expenses": Any costs and expenses incurred by the
Servicer or the Special Servicer pursuant to Sections 3.04, 3.08, 3.10(b),
3.10(e), 3.10(f), 3.10(g), 3.10(h), 3.10(k), 3.17(b) and 3.18 or indicated
herein as being a cost or expense of the Trust Fund or the Lower-Tier REMIC, the
Middle-Tier REMIC or Upper-Tier REMIC to be advanced by the Servicer or the
Special Servicer, as applicable.
"Prospectus": The Depositor's Prospectus Supplement dated February 23,
1999 relating to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class X, Class B, Class C, Class D,
Class E, and Class F Certificates.
"Qualified Institutional Buyer": A qualified institutional buyer within
the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance company
or security or bonding company qualified to write the related insurance policy
in the relevant jurisdiction which shall have a claims paying ability of "A" or
better by Fitch (or, if such company is not rated by Fitch, is rated at least
A-IX by A.M. Best's Key Rating Guide), and an insurance financial strength
rating of "A2" or better by ▇▇▇▇▇'▇ (ii) in the case of public liability
insurance policies required to be maintained with respect to REO Properties in
accordance with Section 3.08(a), shall have a claims paying ability of "A" or
better by Fitch (or, if such company is not rated by Fitch, is rated at least
A-IX by A.M. Best's Key Rating Guide), in the case of ▇▇▇▇▇'▇, insurance
financial strength rating of "A2" or better and (iii) in the case of the
fidelity bond and the errors and omissions insurance required to be maintained
pursuant to Section 3.08(c), shall have a claims paying ability rated by each
Rating Agency no lower than two ratings categories (without regard to pluses or
minuses or numeric qualifications) lower than the highest rating of any
outstanding Class of Certificates from time to time (or if such company is not
rated by Fitch, is rated at least A-VIII by A.M. Best's Key Rating Guide), but
in no event lower than "BBB" by Fitch and in the case of ▇▇▇▇▇'▇,
40
insurance financial strength rating of "Baa2" or better, unless in any such case
each of the Rating Agencies has confirmed in writing that obtaining the related
insurance from an insurance company that is not rated by each of the Rating
Agencies (subject to the foregoing exceptions) or that has a lower claims-paying
ability than such requirements shall not result, in and of itself, in a
downgrade, qualification or withdrawal of the then-current ratings by such
Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage"
within the meaning of Code Section 860G(a)(3) of the Code (but without regard to
the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any substantially similar successor
provision.
"Qualifying Substitute Mortgage Loan": In the case of a Removed
Mortgage Loan, a 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 Removed Mortgage Loan; (ii) is accruing interest at a rate of
interest at least equal to that of the Removed Mortgage Loan; (iii) has a fixed
Mortgage Rate; (iv) is accruing interest on the same basis (for example, a
360-day year consisting of twelve 30-day months) as the Removed Mortgage Loan;
(v) has a remaining term to stated maturity not greater than, and not more than
two years less than, that of the Removed Mortgage Loan and a current
loan-to-value ratio (equal to the principal balance on the date of substitution
divided by its appraised value as determined by an appraisal dated not more than
twelve months prior the date of substitution) not higher than the then-current
loan-to-value ratio of the Removed Mortgage Loan; (vi) will comply with all of
the representations and warranties relating to Mortgage Loans set forth in the
Mortgage Loan Purchase Agreement, as of the date of substitution; (vii) has an
Environmental Report relating to the related Mortgaged Property in its Mortgage
File; and (viii) as to which the Trustee has received an Opinion of Counsel, at
the Mortgage Loan Seller's expense, that such Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided that no Mortgage Loan may have a Maturity Date after the date three
years prior to the Rated Final Distribution Date, and provided, further, that no
such Mortgage Loan shall be substituted for a Removed Mortgage Loan unless the
Trustee has received confirmation in writing by each Rating Agency that such
substitution will not in and of itself result in the downgrade, qualification or
withdrawal of the rating assigned by such Rating Agency to any Class of
Certificates then rated by such Rating Agency. In the event that one mortgage
loan is substituted for one or more Removed 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
41
Removed 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": May 15, 2032, the next Distribution
Date occurring two years after the latest Assumed Maturity Date of any of the
Mortgage Loans.
"Rating Agency": Either of Fitch or ▇▇▇▇▇'▇. References herein to the
highest long-term unsecured debt rating category of a Rating Agency shall mean
"AAA" with respect to Fitch and "Aaa" with respect to ▇▇▇▇▇'▇ and in the case of
any other rating agency shall mean such highest rating category or better
without regard to any plus or minus or numerical qualification.
"Real Property": Land or improvements thereon such as buildings or
other inherently permanent structures thereon (including items that are
structural components of the buildings or structures), in each such case as such
terms are used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date shall mean the
amount, if any, by which the aggregate Certificate Balance of the Certificates
after giving effect to distributions made on such Distribution Date exceeds the
aggregate Stated Principal Balance of the Mortgage Loans immediately following
the Determination Date preceding such Distribution Date.
"Reassignment of Assignment of Leases, Rents and Profits": As defined
in Section 2.0l (viii).
"Record Date": With respect to each Distribution Date, the close of
business on the last day of the calendar month preceding the month in which such
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day.
"Regular Certificates": The Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K and Class
L Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class G, Class H, Class
J, Class K and Class L Certificates issued as such on the Closing Date.
"Regulation S Investor": With respect to a transferee of an interest in
a Regulation S Global Certificate, a transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section
5.02(c)(i)(B).
42
"Related Certificate" and "Related Middle-Tier Regular Interest": For
any Class of Middle-Tier Regular Interest, the related Class of Certificates set
forth below and for any Class of Certificates (other than the Class X, Class
Q-l, Class Q-2, Class R, Class MR and Class LR Certificates), the related Class
of Middle-Tier Regular Interest set forth below:
Related Certificate Related Middle-Tier Regular Interest
------------------- ------------------------------------
Class A-l Class A-l-M Interest
Class A-2 Class A-2-M Interest
Class B Class B-M Interest
Class C Class C-M Interest
Class D Class ▇-▇ Interest
Class E Class E-M Interest
Class F Class F-M Interest
Class G Class G-M Interest
Class H Class H-M Interest
Class J Class ▇-▇ Interest
Class K Class K-M Interest
Class L Class ▇-▇ Interest
"REMIC": A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code and the REMIC Provisions.
"REMIC Certificates": The Certificates other than the Class Q-1 and
Class Q-2 Certificates.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations (including any applicable proposed regulations) and rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Removed Mortgage Loan": A Mortgage Loan which is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
43
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect
to such REO Property, if the determination of such amount
depends in whole or in part on the income or profits derived by
any Person from such property (unless such amount is a fixed
percentage or percentages of receipts or sales and otherwise
constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including
by attribution) a ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B) and (d)(5)
of the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates
such REO Property;
(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants
in buildings of a similar class in the same geographic market as
such REO Property within the meaning of Treasury Regulations
Section 1.856-4(b)(1) (whether or not such charges are
separately stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of
such REO Property and, for any taxable year of the Trust Fund,
such rent is no greater than 15 percent of the total rent
received or accrued under, or in connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related
Mortgaged Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been acquired
by the Special Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the content
described in Exhibit M-5 attached hereto, setting forth, among other things,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Determination Date immediately preceding the respective
Distribution Date, (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
44
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).
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage Loan
that is substituted for one or more Removed Mortgage Loans.
"Repurchase Price": With respect to any Mortgage Loan to be repurchased
pursuant to Section 2.03(d), 2.03(e) or 9.01, or any Specially Serviced Mortgage
Loan or any REO Mortgage Loan to be sold or repurchased pursuant to Section
3.18, an amount, calculated by the Servicer or the Special Servicer, as
applicable, equal to:
(i) the unpaid principal balance of such Mortgage Loan as of the Due
Date as to which a payment was last made by the Borrower (less
any Advances previously made on account of principal); plus
(ii) unpaid accrued interest from the Due Date as to which interest
was last paid by the Borrower up to the Due Date in the month
following the month in which the purchase or repurchase occurred
at a rate equal to the Mortgage Rate on the unpaid principal
balance of such Mortgage Loan (less any Advances previously made
on account of interest); plus
(iii) any unreimbursed Advances and unpaid Servicing Fees, Trustee
Fees and Special Servicing Compensation allocable to such
Mortgage Loan together with interest thereon at the Advance
Rate; plus
(iv) in the event that the Mortgage Loan is required to be
repurchased pursuant to Sections 2.03(d) or 2.03(e), expenses
reasonably incurred or to be incurred by the Servicer, the
Special Servicer or the Trustee in respect of the breach or
defect giving rise to the repurchase obligation, including any
expenses arising out of the enforcement of the repurchase
obligation.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve
accounts, if any, established pursuant to the Mortgage or the Loan Agreement and
any Escrow Account. Any Reserve Account may be a sub-account of a related Cash
Collateral Account. Any Reserve Account shall be beneficially owned for federal
income tax purposes by the Person who is entitled to receive the reinvestment
income or gain thereon in accordance with the terms and provisions of the
related Mortgage Loan and Section 3.07, which Person shall be taxed on all
reinvestment income or gain thereon. The Servicer shall be permitted to make
withdrawals therefrom for deposit into the related Cash Collateral Account, if
applicable, or the Collection Account or for the purposes set forth under the
related Mortgage Loan.
45
"Responsible Officer": Any officer of the Asset-Backed Securities Trust
Services Group of the Trustee or the Fiscal Agent (and, in the event that the
Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust
Office with direct responsibility for the administration of this Agreement and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, and, in the case of any certification required to be signed
by a Responsible Officer, such an officer whose name and specimen signature
appears on a list of corporate trust officers furnished to the Servicer by the
Trustee and the Fiscal Agent, as such list may from time to time be amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Retained Interest": As defined in the definition of "Mortgage Loan."
"Revised Rate": With respect to the Mortgage Loans, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for each applicable Mortgage Loan, as calculated and as set forth in the related
Mortgage Loan; which, with respect to Mortgage Loans with Revised Rates that
exceed 2% of the Mortgage Rate for such Mortgage Loans, the Mortgage Loan Seller
has waived its right under the Mortgage Loan Purchase Agreement to receive
amounts in excess of such 2% increase.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class G, Class H, Class J,
Class K and Class L Certificates issued as such on the Closing Date.
"S&P": Standard & Poor's Ratings Services, or its successor in
interest.
"Scheduled Final Distribution Date": As to each Class of Certificates,
December 15, 2028, the next Distribution Date occurring after the latest
maturity date of any Mortgage Loan.
"Securities Legend": With respect to each Residual Certificate or any
Individual Certificate, the legend set forth in, and substantially in the form
of, Exhibit G hereto.
"Servicer": Banc One Mortgage Capital Markets, LLC, a Delaware limited
liability company, or any successor Servicer appointed as herein provided.
"Servicer Event of Default": As defined in Section 7.01(a).
46
"Servicer Prepayment Interest Shortfall": With respect to any
Distribution Date, an amount equal to the Net Prepayment Interest Shortfall;
provided, however, that the aggregate amount of the Servicer Prepayment Interest
Shortfall with respect to any Interest Accrual Period shall not exceed the
aggregate amount of the Master Servicing Fee attributable to the Mortgage Loans
and the investment income accruing on the related Principal Prepayment with
respect to such Interest Accrual Period.
"Servicer Remittance Date": With respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer and/or
the Special Servicer in such media as may be agreed upon by the Servicer, the
Special Servicer and the Trustee containing such information regarding the
Mortgage Loans as will permit the Trustee to calculate the amounts to be
distributed pursuant to Section 4.01 and to furnish statements to
Certificateholders pursuant to Section 4.02, including information on the
outstanding principal balances of each Mortgage Loan specified therein, and
containing such additional information as the Servicer, the Special Servicer and
the Trustee may from time to time agree.
"Servicer's Appraisal Estimate": As defined in the definition of
Appraisal Reduction Amount.
"Servicing Compensation": With respect to any Collection Period, the
related Servicing Fee, Net Prepayment Interest Excess, if any, and any other
fees, charges or other amounts payable to the Servicer under the Agreement for
such period.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the sum of the respective Servicing Fee Rate and (ii) the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the
immediately preceding Collection Period (without giving effect to payments of
principal on such Mortgage Loan on such Due Date).
"Servicing Fee Rate": With respect to each Mortgage Loan, the sum of
the Master Servicing Fee Rate and the related Primary Servicing Fee Rate.
"Servicing Officer": Any officer or employee of the Servicer or the
Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or this Agreement and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's or employee's knowledge of and familiarity
with the particular subject, and, in the case of any certification required to
be signed by a Servicing Officer, such an officer or employee whose name and
specimen signature appears on a list of servicing officers furnished to the
Trustee and the Automobile Adviser by the Servicer or the Special Servicer, as
applicable, as such list may from time to time be amended.
"Servicing Standard": With respect to the Servicer or Special Servicer
shall mean the servicing of the Mortgage Loans by the Servicer or Special
Servicer solely in the best interests of and for the benefit of all of the
Certificateholders (as determined by the Servicer or
47
Special Servicer as the case may be, in its reasonable judgment) and in
accordance with applicable law, the specific terms of the respective Mortgage
Loans and this Agreement and to the extent not inconsistent with the foregoing,
in the same manner in which, and with the same care, skill, prudence and
diligence with which, it (i) services and administers similar mortgage loans
(including, in the case of the Special Servicer, REO mortgage loans) for other
third-party portfolios or (ii) administers mortgage loans (including, in the
case of the Special Servicer, REO mortgage loans) for its own account, whichever
standard is higher, but in any case without regard to:
(i) any known relationship that the Servicer, the Special Servicer,
any subservicer or any Affiliate of the Servicer, the Special
Servicer or any subservicer may have with any Borrower or any
other parties to the Pooling and Servicing Agreement, including
any lending relationship with or equity interest in the
Borrower;
(ii) the ownership of any Certificate by the Servicer, the Special
Servicer or any Affiliate of the Servicer or Special Servicer,
as applicable;
(iii) the Servicer's or Special Servicer's obligation to make P&I
Advances, Property Advances or to incur servicing expenses with
respect to the Mortgage Loans;
(iv) the Servicer's, Special Servicer's or any subservicer's right to
receive compensation for its services hereunder or with respect
to any particular transaction; or
(v) the ownership, or servicing or management for others, by the
Servicer, the Special Servicer or any sub-servicer, of any other
mortgage loans or properties.
"Similar Law": As defined in Section 5.02(k) hereof.
"Special Servicer": Banc One Mortgage Capital Markets, LLC, a Delaware
limited liability company, or its successor in interest, or any successor
Special Servicer appointed as provided in Section 3.25. In the event that the
Servicer is also the Special Servicer hereunder, and the Servicer is terminated
or resigns as the Servicer hereunder, the Servicer shall be terminated as the
Special Servicer hereunder.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan,
any of the Special Servicing Fee, Workout Fee, Liquidation Fee and any other
fees, charges or other amounts which shall be due to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and any Distribution Date, an amount per Special Servicing Period
equal to the product of (i)
48
one-twelfth of the Special Servicing Fee Rate and (ii) the Stated Principal
Balance of such Specially Serviced Mortgage Loan as of the Due Date (without
giving effect to all payments of principal on such Specially Serviced Mortgage
Loan on such Due Date) in the Collection Period prior to such Distribution Date.
"Special Servicing Fee Rate": A rate equal to 0.25% per annum.
"Special Servicing Period": Any Interest Accrual Period during which a
Mortgage Loan is at any time a Specially Serviced Mortgage Loan.
"Specially Serviced Mortgage Loan": Subject to Section 3.26, any
Mortgage Loan with respect to which:
(i) the related borrower has not made two consecutive Monthly Payments
(and has not cured at least one such delinquency by the next due date under the
related Mortgage Loan);
(ii) the Servicer, the Trustee and/or the Fiscal Agent has made four
consecutive P&I Advances (regardless of whether such P&I Advances have been
reimbursed);
(iii) the Borrower has expressed to the Servicer a hardship that will
cause an inability to pay the Mortgage Loan in accordance with its terms and,
therefore, in the reasonable judgment of the Servicer, the Borrower is at
imminent risk of default of the terms of the Mortgage Loan;
(iv) the Servicer has received notice that the Borrower has become the
subject of any bankruptcy, insolvency or similar proceeding, admitted in writing
the inability to pay its debts as they come due or made an assignment for the
benefit of creditors;
(v) the Servicer has received notice of a foreclosure or threatened
foreclosure of any lien on the Mortgaged Property securing the Mortgage Loan;
(vi) a default (other than a failure by the borrower to pay principal
or interest) which in the judgment of the Servicer materially and adversely
affects the interests of the Certificateholders has occurred and remained
unremedied for the applicable grace period specified in the Mortgage Loan (or,
if no grace period is specified, 60 days); provided, that a default requiring a
Property Advance will be deemed to materially and adversely affect the interests
of Certificateholders;
(vii) (A) in the case of a Healthcare Loan in which the related
Healthcare Property is a nursing facility and (1) the license or certificate of
need to operate the related Mortgaged Property as a Healthcare Property, (2) the
certification of the related Healthcare Property to participate as a nursing
home provider in Medicare or Medicaid (and their successor programs), or (3) the
right to admit residents and/or receive payments under Medicare or Medicaid (and
their successor programs) has been terminated, revoked, surrendered or
suspended; or (B) in the case of a Healthcare Loan in which the related
Healthcare Property is an
49
assisted living facility, the right to admit residents or the license to operate
as an assisted living facility has been terminated, revoked, surrendered or
suspended; or (c) in the case of any Healthcare Loan, the related Healthcare
Property has been cited for a material deficiency for which its license or
certification can be revoked and which is not cured within the earlier of the
time permitted by the applicable regulatory authority or 180 days; or (D) in the
case of any Healthcare Loan, more than ten percent (10%) of the licensed beds of
the related Healthcare Property becomes unavailable for use either (1) through a
taking by condemnation or eminent domain, or (2) through a casualty loss;
provided, however, that the Servicer has determined that as a result of (l) or
(2) of this clause (vii)(D) the related Borrower's ability to pay the debt
service on such Healthcare Loan has been impaired; or
(viii) the related mortgagor has failed to make a Balloon Payment as
and when due:
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan (each, a "Corrected Mortgage Loan") (x) with respect to the
circumstances described in clauses (i), (ii), and (viii) above, when the
borrower thereunder has brought the Mortgage Loan current (or, with respect to
the circumstances described in clause (viii), pursuant to a work-out implemented
by the Special Servicer) and thereafter made three consecutive full and timely
monthly payments, including pursuant to any workout of the Mortgage Loan, (y)
with respect to the circumstances described in clause (iii), (iv), and (v)
above, when such circumstances cease to exist in the good faith judgment of the
Special Servicer, and (z) with respect to the circumstances described in clause
(vi) or (vii) above, when such default is cured or other event is rendered, in
each case, if at that time no circumstance exists (as described above) that
would cause the Mortgage Loan to continue to be characterized as a Specially
Serviced Mortgage Loan.
"Startup Day": The day designated as such pursuant to Section 2.06(a)
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan, the
principal balance as of the Cut-off Date of such Mortgage Loan (or in the case
of a Replacement Mortgage Loan as of the related date of substitution), as
reduced on each Distribution Date (to not less than zero) by (i) all payments
(or Advances in lieu thereof) of, and all other collections allocated as
provided in Section 1.02 to, principal of or with respect to such Mortgage Loan
that are 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. The Stated Principal Balance of any
Mortgage Loan with respect to which the Servicer or Special Servicer has made a
Final Recovery Determination is zero.
"Substitution Shortfall Amount": In connection with the substitution of
one or more Replacement Mortgage Loans for one or more Removed Mortgage Loans,
the amount, if any, by which the Repurchase Price or aggregate Repurchase Price,
as the case may be, for such Removed 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).
50
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
the Upper-Tier REMIC, the Middle-Tier REMIC and Lower-Tier REMIC under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
or any other governmental taxing authority under any applicable provisions of
federal, state or local tax laws in respect of the Trust fund, any of its
assets, any Certificate, Middle-Tier Interest or Lower-Tier Interest, or any
Trust REMIC..
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of assignment
of any Ownership Interest in a Class R, Class MR or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv)
all revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to this
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guaranties given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and Reserve
Accounts (to the extent such assets are not assets of the respective Borrowers),
the Collection Account, the Distribution Account, the Middle-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase
Agreement; and (xi) the proceeds of the foregoing (other than any interest
earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower).
"Trust REMICs": The Lower-Tier REMIC the Middle-Tier REMIC and the
Upper-Tier REMIC.
51
"Trustee": LaSalle National Bank, a national banking association, in
its capacity as trustee, or its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the Trustee Fee Rate multiplied by (ii) the Stated Principal
Balance of such Mortgage Loan as of the Due Date (after giving effect to all
payments of principal on such Mortgage Loan on such Due Date) in the month
preceding the month in which such Distribution Date occurs.
"Trustee Fee Rate": A rate equal to 0.002% per annum.
"Uncertificated Accrued Interest": With respect to any Lower-Tier
Regular Interest, for any Distribution Date, one month's interest (calculated on
the basis of a 360-day year consisting of twelve 30-day months or, if the
related Mortgage Loan or REO Loan accrues interest on a different basis, on such
alternative basis) at the Lower-Tier Regular Interest's Pass-Through Rate for
such Distribution Date, accrued on the Lower-Tier Balance of such Lower-Tier
Regular Interest immediately prior to such Distribution Date. With respect to
any Middle-Tier Regular Interest, for any Distribution Date, one month's
interest (calculated on the basis of a 360-day year consisting of twelve 30-day
months at the Middle-Tier Regular Interest's Pass-Through Rate for such
Distribution Date, accrued on the Middle-Tier Balance of such Middle-Tier
Regular Interest immediately prior to such Distribution Date. The Uncertificated
Accrued Interest in respect of any Lower-Tier Regular Interest and any
Middle-Tier Regular Interest for any Distribution Date shall be deemed to accrue
during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any Lower-Tier
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such Lower-Tier Regular Interest for such Distribution Date,
reduced (but not to less than zero) by the product of (i) any Net Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which is the Uncertificated Accrued
Interest in respect of such Lower-Tier Regular Interest and the denominator of
which is the total Uncertificated Accrued Interest in respect of all outstanding
Lower-Tier Regular Interests as of such Distribution Date. With respect to any
Middle-Tier Regular Interest for any Distribution Date, an amount equal to (i)
the Uncertificated Accrued Interest in respect of such Middle-Tier Regular
Interest for such Distribution Date, reduced (but not to less than zero) by (ii)
the portion, if any, of the Net Prepayment Interest Shortfall, if any, for such
Distribution Date allocated to such Middle-Tier Regular Interest, which shall be
allocated in the same manner as such Net Prepayment Interest Shortfall is
allocated among the related Classes of Principal Balance Certificates.
"Underwriters": DBS, ▇▇▇▇▇▇ Brothers Inc. and ▇.▇. ▇▇▇▇▇▇ Securities
Inc.
"Unscheduled Payments": With respect to a Mortgage Loan and a
Collection Period, all Net Liquidation Proceeds and Net Insurance Proceeds
payable under such Mortgage Loan, the Repurchase Price of any Mortgage Loan that
is repurchased or purchased pursuant to Sections 2.03(d), 2.03(e), 3.18 or 9.01,
the Substitution Shortfall Amount with respect to any
52
substitution pursuant to Section 2.03(g) and any other payments under or with
respect to such Mortgage Loan not scheduled to be made, including Principal
Prepayments received by the Servicer, but excluding Prepayment Premiums, during
such Collection Period.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO
Property, as the case may be, conducted subsequent to any appraisal performed on
or prior to the Cut-off Date and in accordance with Appraisal Institute
standards, the costs of which shall be paid as a Property Advance by the
Servicer. Updated Appraisals shall be conducted by an MAI appraiser selected by
the Servicer after consultation with the Special Servicer.
"Upper-Tier Distribution Account": The trust account or accounts
created and maintained either as a separate trust account or accounts or as a
subaccount or subaccounts of the Distribution Account by the Trustee pursuant to
Section 3.05(d), which shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM
1999-1 Commercial Mortgage Pass-Through Certificates, Upper-Tier Distribution
Account" and which must be an Eligible Account or a subaccount of an Eligible
Account.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Middle-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in applicable Treasury
Regulations), or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, an estate whose income is
subject to United States federal income tax regardless of its source, or a trust
if for taxable years beginning after December 31, ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ is able to exercise primary supervision over the administration of such
trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which have
elected to be treated as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificateholder or Class of
Certificateholders. At all times during the term of this Agreement the
percentage of Voting Rights assigned to each Class shall be: (a) 98% to be
allocated among the Certificateholders of the respective Classes of Regular
Certificates (other than the Class X Certificates) in proportion to the
Certificate Balances of their Certificates, (b) 2% to be allocated among the
Certificateholders of the Class X Certificates, and (c) 0%, in the case of the
Class Q-l, Class Q-2, Class R, Class MR and Class LR Certificates. Voting Rights
allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests in such Class
evidenced by their respective Certificates. The Certificate Balance of each
Class of Certificates (other than the Class J, Class K and Class L 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 Amounts allocated to such Class on such Distribution Date. To the
extent that the aggregate of the
53
Appraisal Reduction Amounts for any Distribution Date exceed such Certificate
Balance, such excess will be applied to notionally reduce the Certificate
Balance of the next most subordinate Class of Certificates on the next
Distribution Date. Any such reductions will be applied in the following order of
priority: first, to the Class H Certificates, second to the Class G
Certificates; third, to the Class F Certificates; fourth, to the Class E
Certificates: fifth, to the Class D Certificates; sixth, to the Class C
Certificates; seventh, to the Class B Certificates; and finally, to the Class A
(provided in each case that no Certificate Balance in respect of any such Class
may be notionally reduced below zero).
"Watch List": A report substantially containing the content described
in Exhibit M-6 attached hereto, as of the close of business on the Determination
Date immediately preceding the respective Distribution Date, setting forth,
among other things, any Mortgage Loan that is in jeopardy of becoming a
Specially Serviced Mortgage Loan.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to any
Distribution Date, a per annum rate equal to the fraction (expressed as a
percentage) the numerator of which is the sum for all Mortgage Loans of the
products of (i) the Net Mortgage Pass-Through Rate for each such Mortgage Loan
as of the immediately preceding Distribution Date and (ii) the Stated Principal
Balance of each such Mortgage Loan and the denominator of which is the sum of
the Stated Principal Balances of all such Mortgage Loans, as of the immediately
preceding Distribution Date.
"Weighted Average Pass-Through Rate": With respect to any Interest
Accrual Period, a fraction (expressed as a percentage), the numerator of which
is the sum of the products of (A) the Pass-Through Rate with respect to each
Class of Certificates having a Pass-Through Rate (other than the Class X
Certificates) and (B) the Certificate Balance of such Class as of the first day
of such Interest Accrual Period, and the denominator of which is the sum of the
Certificate Balances of each Class included in clause (A) above as of such date
(provided in the case any reductions in Certificate Balance as a result of
distributions or allocations of Realized Losses to such Class, respectively,
occurring in an Interest Accrual Period shall be deemed to have been made on the
first day of such Interest Accrual Period).
"Withheld Amount": With respect to (a) each Distribution Date occurring
in (i) January of each calendar year that is not a leap year and (ii) February
of each calendar year, an amount equal to one day's interest at the Mortgage
Rate (less the Servicing Fee Rate and the Trustee Fee Rate) as of the Due Date
on the respective Stated Principal Balance of each Mortgage Loan 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": An amount equal to 1.0% of each collection of interest
and principal (including scheduled payments, prepayments, Balloon Payments and
payments at maturity) received on a Specially Serviced Mortgage Loan that
becomes a Corrected Mortgage Loan for so long as it remains a Corrected Mortgage
Loan, pursuant to Section 3.12(c).
54
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, the following provisions shall
apply:
(a) All calculations of interest with respect to the Mortgage Loans
(other than the Actual/360 Mortgage Loans) and of Advances in respect thereof
provided for herein shall be made on the basis of a 360-day year consisting of
twelve 30-day months. All calculations of interest with respect to the
Actual/360 Mortgage Loans and of Advances provided in respect thereof for herein
shall be made as set forth in such Mortgage Loans with respect to the
calculation of the related Mortgage Rate. All Servicing Fees and Trustee Fee
calculated as a percentage will accrue on the basis of a 360-day year consisting
of twelve 30-day months.
(b) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Servicer or the Trustee; provided, however,
that for purposes of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be received on the
date they are applied in accordance with Section 3.01(b) to reduce the
outstanding principal balance of such Mortgage Loan on which interest accrues.
(c) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred and is continuing in excess of Monthly Payments shall be
applied to Default Interest and other amounts due on such Mortgage Loan prior to
the application to late fees.
SECTION 1.03. Certain Constructions.
For purposes of the definition of "Special Servicing Fee", Section
3.19, Section 3.12, Section 3.25, Section 3.30 and Section 4.06(d), references
to the most or next most subordinate Class of Certificates outstanding at any
time shall mean the most or next most subordinate Class of Certificates then
outstanding as among the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class X, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K and Class L
Certificates. For such purposes, the Class A-1, Class A-2 and Class X
Certificates collectively shall be considered to be one Class. For purposes of
this Agreement, each Class of Certificates other than the Class Q-l, Class Q-2,
Class LR, Class MR and Class R Certificates shall be deemed to be outstanding
only to the extent its respective Certificate Balance has not been reduced to
zero. For purposes of this Agreement, the Class Q-1, Class Q-2, Class R, Class
MR and Class LR Certificates shall be outstanding so long as the Trust Fund has
not been terminated pursuant to Section 9.01 or any other Class of Certificates
remains outstanding. For purposes of this Agreement, the Class X Certificates
(and each Class X Component) shall be deemed to be outstanding until their
Notional Balance (or portion thereof allocable to such Class X Component) has
been reduced to zero.
55
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase Agreement.
The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent herein provided) all the right, title and
interest of the Depositor in and to the Mortgage Loans, including all rights to
payment in respect thereof, except as set forth below, and any security interest
thereunder (whether in real or personal property and whether tangible or
intangible) in favor of the Depositor, and all Reserve Accounts, Lock-Box
Accounts, Cash Collateral Accounts and all other assets to the extent included
or to be included in the Trust Fund for the benefit of the Certificateholders.
Such transfer and assignment includes all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date. In connection with such
transfer and assignment, the Depositor shall make a cash deposit to the
Collection Account in an amount equal to the Cash Deposit. The Depositor,
concurrently with the execution and delivery hereof, does also hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent provided herein) all the right, title and interest of the Depositor
in, to and under the Mortgage Loan Purchase Agreement to the extent related to
any Mortgage Loan. The Depositor shall cause the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts to be transferred to and held in the
name of the Servicer on behalf of the Trustee as successor to the Mortgage Loan
Seller.
In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, the Custodian (on behalf of the Trustee),
with copies to the Servicer and the Special Servicer, the following documents or
instruments with respect to each Mortgage Loan so assigned (provided, however,
the documents specified in item (ix) shall be delivered only to the Servicer):
(i) the original 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 Deutsche Mortgage & Asset Receiving
Corporation, COMM 1999-1 Commercial Mortgage Pass-Through
Certificates, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof
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;
56
(iii) an original assignment of the 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) (A) an original or copy of any related security agreement (if
such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof 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; and (B) an
original assignment of any related security agreement (if such
item is a document separate from the Mortgage) 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;
(v) (A) stamped or certified copies 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 Borrower
at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Mortgage Loan
Seller (or its agent) at the time the Mortgage Files were
delivered to the Trustee and (B) if any such security interest
is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Mortgage
Loan 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;
(vi) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance policy
issued as of the date of 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;
(viii) (A) the original or a copy of the related Assignment of Leases,
Rents and Profits (if such item is a document separate from the
Mortgage) and, if applicable, the originals or copies of any
intervening assignments thereof showing a complete chain of
assignment from the Originator of the Mortgage Loan to the most
recent assignee of record thereof prior to the
57
Trustee, if any, in each case with evidence of recording
thereon; and (B) an original assignment of any related
Assignment of Leases, Rents and Profits (a "Reassignment of
Assignment of Leases, Rents and Profits") (if such item is a
document separate from the 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;
(ix) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage
Loans, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of
contracts and the assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a
copy thereof; with respect to the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts, if any, a copy of the
UCC-l financing statements, if any, submitted for filing with
respect to the Mortgage Loan Seller's security interest in the
Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts
and all funds contained therein (and UCC-3 financing statements
assigning such security interest to the Trustee on behalf of the
Certificateholders);
(xiv) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of
recording thereon if appropriate, in those instances where the
terms or provisions of the Mortgage, the Note or any related
security document have been modified or the Mortgage Loan has
been assumed;
(xv) the original or a copy of any guaranty of the obligations of the
Borrower under the Mortgage Loan together with (A) if
applicable, the original 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;
58
(xvi) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the related
Borrower if the Mortgage, Note or other document or instrument
referred to above was signed on behalf of the Borrower pursuant
to such power of attorney; and
(xvii) any other written agreements related to the Mortgage Loan.
On or promptly following the Closing Date, the Trustee (in the case of
the Mortgage Loans sold to the Depositor by the Mortgage Loan Seller) or the
Servicer (in the case of the Mortgage Loans sold to the Mortgage Loan Seller by
Banc One Mortgage Capital Markets, LLC), shall, to the extent possession of
recorded copies of each Mortgage and the documents described in Sections
2.01(iv), (v), (viii), (xii), (xiii) and (xiv) have been delivered to it, at the
expense of the Depositor, (1) prepare and record (a) each Assignment of Mortgage
referred to in Section 2.01(iii) which has not yet been submitted for recording
and (b) each Reassignment of Assignment of Leases, Rents and Profits referred to
in Section 2.01(viii) (if not otherwise included in the related Assignment of
Mortgage) which has not yet been submitted for recordation; and (2) prepare and
file each UCC financing statement referred to in Section 2.01(v) or (xiii) which
has not yet been submitted for filing. The Servicer shall upon delivery promptly
prepare and submit (and in no event later than 30 Business Days following the
receipt of the related documents in the case of clause 1(a) above and 60 days
following the receipt of the applicable documents in the case of clauses 1(b)
and 2 above) for recording or filing, as the case may be, in the appropriate
public recording office, each such document. In the event that any such document
is lost or returned unrecorded because of a defect therein, the Servicer, at the
expense of the Mortgage Loan Seller (as set forth in the Mortgage Loan Purchase
Agreement), shall use its best efforts to promptly prepare a substitute document
for signature by the Depositor or the Mortgage Loan Seller, as applicable, and
thereafter the Servicer shall cause each such document to be duly recorded. The
Servicer shall, promptly upon receipt of the original recorded copy (and in no
event later than five Business Days following such receipt) deliver such
original to the Custodian. Notwithstanding anything to the contrary contained in
this Section 2.01, in those instances where the public recording office retains
the original Mortgage, Assignment of Mortgage or Reassignment of Assignment of
Leases, Rents and Profits, if applicable, after any has been recorded, the
obligations hereunder of the Depositor shall be deemed to have been satisfied
upon delivery to the Custodian of a copy of such Mortgage, Assignment of
Mortgage or Reassignment of Assignment of Leases, Rents and Profits, if
applicable, certified by the public recording office to be a true and complete
copy of the recorded original thereof.
If the Mortgage Loan Seller cannot deliver, or cause to be delivered,
as to any Mortgage Loan, the original or a copy of the related lender's title
insurance policy referred to in Section 2.01(vii) solely because such policy has
not yet been issued, the delivery requirements of this Section 2.01 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 the
Mortgage Loan Seller has caused to be delivered to the Custodian a commitment
for title insurance "marked-up" at the closing of such Mortgage Loan, and the
Mortgage Loan Seller shall deliver to the Custodian, promptly following the
receipt thereof, the original related lender's title insurance policy (or a copy
thereof). The Servicer shall promptly cause the UCC's referred to in Section
59
2.01(v) to be filed in the applicable public recording office and upon filing
will promptly deliver to the Custodian the related UCC, with evidence of filing
thereon. The Mortgage Loan Seller pursuant to the Mortgage Loan Purchase
Agreement shall reimburse the Servicer for all out-of-pocket expenses incurred
and filing fees paid by the Servicer in connection with its obligations under
this paragraph with respect to their respective Mortgage Loans. Copies of
recorded or filed Assignments, Reassignments, and UCC's shall be delivered to
the Trustee by the Servicer.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Depositor, the Trustee
or the Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
SECTION 2.02. Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified recorded
document described in Section 2.01 on the Closing Date, the Depositor shall use
its best efforts, promptly upon receipt thereof and in any case not later than
45 days from the Closing Date (except as described below with respect to the
items described in Section 2.01(ii), (v), (viii)(A), (xiv) and (xvi) and the
UCCs referred to in Section 2.01(xiii)) to deliver such original or certified
recorded documents to the Custodian (unless the Depositor is delayed in making
such delivery by reason of the fact that such documents shall not have been
returned by the appropriate recording office in which case it shall notify the
Custodian and the Trustee in writing of such delay).
If the Depositor cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in Section 2.01(ii), (v), (viii)(A), (xiv) and (xvi) and the UCCs
referred to in Section 2.01 (xiii), with evidence of recording 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, or because
such original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of Section 2.01 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 a copy of such document or instrument
(without evidence of recording or filing thereon, but certified (which
certificate may relate to multiple documents and/or instruments) by the Mortgage
Loan Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Custodian,
and either the original of such missing document or instrument, or a copy
thereof, with evidence of recording or filing, as the case may be, thereon, is
delivered to the Custodian within 90 days of the Closing Date (or within such
longer period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as the Mortgage Loan Seller
has provided the Trustee with evidence of such recording or filing, as the case
may be, or has certified to the Trustee as to the occurrence of such recording
or filing, as the case may be, and is, as certified to the Trustee no less often
than quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy).
60
By its execution and delivery of this Agreement, the Trustee
acknowledges the assignment to it of the Mortgage Loans in good faith without
notice of adverse claims and declares that the Custodian holds and will hold
such documents and all others delivered to it constituting the Mortgage File (to
the extent the documents constituting the Mortgage File are actually delivered
to the Custodian) for any Mortgage Loan assigned to the Trustee hereunder in
trust, upon the conditions herein set forth, for the use and benefit of all
present and future Certificateholders. With the exception of any Notes listed by
the Trustee on an exception report and delivered to the Depositor on the Closing
Date, the Trustee hereby acknowledges the receipt of the Notes. The Trustee
agrees to review each Mortgage File within 90 days after the later of (a) the
Trustee's receipt of such Mortgage File or (b) execution and delivery of this
Agreement, to ascertain that all documents (other than documents referred to in
clause (ix) of Section 2.01 which shall be delivered to the Servicer) referred
to in Section 2.01 above (in the case of the documents referred to in Section
2.01(iv), (v), (vi), (vii) (in the case of any endorsement thereto), (viii) and
(x) through (xvii), as identified to it in writing by the Mortgage Loan Seller)
and any original recorded documents referred to in the first sentence of this
Section included in the delivery of a Mortgage File have been received, have
been executed, appear to be what they purport to be, purport to be recorded or
filed (as applicable) and have not been torn, mutilated or otherwise defaced,
and that such documents relate to the Mortgage Loans identified in the Mortgage
Loan Schedule. In so doing, the Trustee may rely on the purported due execution
and genuineness of any such document and on the purported genuineness of any
signature thereon. If at the conclusion of such review any document or documents
constituting a part of a Mortgage File have not been executed or received, have
not been recorded or filed (if required), are unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule, appear not to be what they purport to
be or have been torn, mutilated or otherwise defaced, the Trustee shall promptly
so notify the Depositor and the Mortgage Loan Seller by providing a written
report, setting forth for each affected Mortgage Loan, with particularity, the
nature of the defective or missing document. The Depositor shall or shall cause
the Mortgage Loan Seller to deliver an executed, recorded or undamaged document,
as applicable, or, if the failure to deliver such document in such form has a
material adverse effect on the security provided by the related Mortgaged
Property, the Depositor shall or shall cause the Mortgage Loan Seller to
repurchase the related Mortgage Loan in the manner provided in Section 2.03.
None of the Servicer, the Special Servicer and Trustee shall be responsible for
any loss, cost, damage or expense to the Trust Fund resulting from any failure
to receive any document constituting a portion of a Mortgage File noted on such
a report or for any failure by the Depositor to use its best efforts to deliver
any such document.
In reviewing any Mortgage File pursuant to the preceding paragraph or
Section 2.01, the Servicer shall have no responsibility to cause the Trustee to,
and the Trustee will have no responsibility to, determine whether any document
or opinion is legal, valid, binding or enforceable, whether the text of any
assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Trustee is the assignee or endorsee), whether
any document has been recorded in accordance with the requirements of any
applicable jurisdiction, whether a blanket assignment is permitted in any
applicable jurisdiction, or whether any Person executing any document or
rendering any opinion is authorized to do so or whether any signature thereon is
genuine.
61
The Trustee shall hold that portion of the Trust Fund delivered to the
Trustee consisting of "instruments" (as such term is defined in Section 9-105(i)
of the Uniform Commercial Code as in effect in Illinois on the date hereof) in
Illinois and, except as otherwise specifically provided in this Agreement, shall
not remove such instruments from Illinois, as applicable, unless it receives an
Opinion of Counsel (obtained and delivered at the expense of the Person
requesting the removal of such instruments from Illinois) that in the event the
transfer of the Mortgage Loans to the Trustee is deemed not to be a sale, after
such removal, the Trustee will possess a first priority perfected security
interest in such instruments.
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage Loans.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) The Depositor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and
has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby,
including, but not limited to, the power and authority to sell,
assign and transfer the Mortgage Loans in accordance with this
Agreement;
(iii) This Agreement has been duly and validly executed and delivered
by the Depositor and assuming the due authorization, execution
and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Depositor hereunder
are the legal, valid and binding obligations of the Depositor,
enforceable in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors'
rights generally, or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law);
(iv) The execution and delivery of this Agreement and the performance
of its obligations hereunder by the Depositor will not conflict
with any provision of its certificate of incorporation or
bylaws, or any law or regulation to which the Depositor is
subject, or conflict with, result in a breach of or constitute a
default under (or an event which with notice or lapse of time or
both would constitute a default under) any of the terms,
conditions or provisions of any agreement or instrument to which
the Depositor is a party or by which it is bound, or any law,
order or decree applicable to the Depositor, or result in the
creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely
62
affect the ability of the Depositor to carry out the
transactions contemplated by this Agreement;
(v) The certificate of incorporation of the Depositor provides that
the Depositor is permitted to engage in only the following
activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge and
otherwise deal with the following: (I) "fully-modified
pass-through" certificates ("GNMA Certificates") issued and
guaranteed as to timely payment of principal and interest
by the Government National Mortgage Association ("GNMA"), a
wholly-owned corporate instrumentality of the United States
within the Department of Housing and Urban Development
organized and existing under Title III of the National
Housing Act of 1934; (II) Guaranteed Mortgage Pass-Through
Certificates ("FNMA Certificates") issued and guaranteed as
to timely payment of principal and interest by FNMA; (III)
Mortgage Participation Certificates ("FHLMC Certificates")
issued and guaranteed as to timely payment of interest and
ultimate or full payment of principal by FHLMC; (IV) any
other participation certificates, pass-through certificates
or other obligations or interests backed directly or
indirectly by mortgage loans and issued or guaranteed by
GNMA, FNMA or FHLMC (collectively with the GNMA
Certificates, FNMA Certificates and FHLMC Certificates, the
"Agency Securities");(V) mortgage-backed securities, which
securities need not be issued or guaranteed, in whole or in
part, by any governmental entity, issued by one or more
private entities (hereinafter referred to as "Private
Securities"); (VI) mortgage loans secured by first, second
or more junior liens on one-to-four family residential
properties, multifamily properties that are either rental
apartment buildings or projects containing five or more
residential units or commercial properties, regardless of
whether insured or guaranteed in whole or in part by any
governmental entity, or participation interests or stripped
interests in such mortgage loans ("Mortgage Loans"); (VII)
conditional sales contracts and installment sales or loan
agreements or participation interests therein secured by
manufactured housing ("Contract"); and (VIII) receivables
of third-parties or other financial assets of
third-parties, either fixed or revolving, that by their
terms convert into cash within a finite time period ("Other
Assets");
(B) to loan its funds to any person under loan agreements and
other arrangements which are secured by Agency Securities,
Private Securities, Mortgage Loans, Contracts and/or Other
Assets;
63
(C) to authorize, issue, sell and deliver bonds or other
evidences of indebtedness that are secured by Agency
Securities, Private Securities, Mortgage Loans, Contracts
and/or Other Assets;
(D) to authorize, issue, sell and deliver certificates
evidencing beneficial ownership interests in pools of
Agency Securities, Private Securities, Mortgage Loans,
Contracts and/or Other Assets; and
(E) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of
Delaware that are incident to the foregoing and necessary
or convenient to accomplish the foregoing.
Capitalized terms defined in this clause (v) shall apply only to such
clause.
(vi) There is no action, suit, proceeding or investigation pending or
threatened against the Depositor in any court or by or before
any other governmental agency or instrumentality which would
materially and adversely affect the ability of the Depositor to
carry out its obligations under this Agreement; and
(vii) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or
body, is required for the execution, delivery and performance by
the Depositor of or compliance by the Depositor with this
Agreement, or if required, such approval has been obtained prior
to the Cut-off Date.
(viii) The Trustee, if not the owner of the related Mortgage Loan, will
have a valid and perfected security interest of first priority
in each of the Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to
each Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the Trustee,
the Note and the Mortgage were not subject to an assignment or
pledge, and the Depositor had good title to, and was the sole
owner of, the Mortgage Loan and had full right to transfer and
sell the Mortgage Loan to the Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest;
(ii) The Depositor is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of
any nature encumbering such Mortgage Loan;
64
(iii) The related Assignment of Mortgage constitutes the legal, valid
and binding assignment of such Mortgage from the Depositor to
the Trustee, and any related Reassignment of Assignment of
Leases, Rents and Profits constitutes the legal, valid and
binding assignment from the Depositor to the Trustee;
(iv) No claims have been made by the Depositor under the lender's
title insurance policy, and the Depositor has not done anything
which would impair the coverage of such lender's title insurance
policy;
(v) All of the representations and warranties of the Mortgage Loan
Seller contained in the Mortgage Loan Purchase Agreement are
true and correct as of the Cut-off Date;
(vi) Each Mortgage Loan is directly secured by an interest in Real
Property, and (2) either (i) substantially all of the proceeds
of such Mortgage Loan were used to acquire or improve or protect
an interest in real property that, at the origination date, was
the only security for the Mortgage Loan (in the case of a
Mortgage Loan that has not been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code) or
(ii) the fair market value of such real property was at least
equal to 80% of the adjusted issue price of the Mortgage Loan
(a) at origination (or, if the Mortgage Loan has been modified
in a manner that constituted a deemed exchange under Section
1001 of the Code after origination, the date of the last such
modification) or (b) at the Closing Date; provided that for
purposes of this clause (ii) the fair market value of the real
property interest must first be reduced by (A) the amount of any
lien on the real property interest that is senior to the
Mortgage Loan (unless such senior lien also secures a Mortgage
Loan, in which event the computation described in (a) and (b) of
this clause (ii) shall be made on an aggregate basis) and (B) a
proportionate amount of any lien that is in parity with the
Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which
event the computation described in (a) and (b) of this clause
(ii) shall be made on an aggregate basis); and
(vii) The information set forth with respect to such Mortgage Loan on
the Mortgage Loan Schedule is true and correct in all material
respects as of the dates respecting which such information is
given, or if no date is specified, as of the Closing Date.
(c) It is understood and agreed that the representations and warranties
set forth in this Section 2.03 shall survive delivery of the respective Mortgage
Files to the Trustee until the termination of this Agreement, and shall inure to
the benefit of the Certificateholders, the Servicer and the Special Servicer.
65
(d) Upon discovery by the Custodian, the Servicer, the Special Servicer
or the Trustee of a breach of the representation and warranty set forth in
Section 2.03(b)(vi) or that any Mortgage Loan otherwise fails to constitute a
Qualified Mortgage, such Person shall give prompt notice thereof to the
Depositor, and the Depositor shall correct such condition, substitute for or
repurchase such Mortgage Loan (or cause the Mortgage Loan Seller to cure such
condition, substitute for or repurchase such Mortgage Loan) at the Repurchase
Price within 90 days after receipt of such notice; it being understood and
agreed that none of such Persons has an obligation to conduct any investigation
with respect to such matters. It is understood and agreed that the obligations
of the Depositor as described in this Section 2.03(d) to cure, repurchase or
substitute for a Mortgage Loan which fails to constitute a Qualified Mortgage
shall be the sole remedies available to the Trustee against the Depositor
respecting a breach of a representation or warranty set forth in Section
2.03(b)(vi).
(e) Upon discovery by the Custodian, the Servicer, the Special Servicer
or the Trustee of a breach of any representation or warranty of the Mortgage
Loan Seller in the Mortgage Loan Purchase Agreement with respect to any Mortgage
Loan, or that any document required to be included in the Mortgage File does not
conform to the requirements of Section 2.01 (a "Defect"), such Person shall give
prompt notice thereof to the Mortgage Loan Seller and the Mortgage Loan Seller
shall, to the extent the Mortgage Loan Seller is obligated to cure or repurchase
the related Mortgage Loan under the terms of the Mortgage Loan Purchase
Agreement, either cure such Defect or breach or repurchase said Mortgage Loan at
the Repurchase Price within 90 days of the receipt of notice of the Defect or
breach as provided in the Mortgage Loan Purchase Agreement; it being understood
and agreed that none of the Custodian, the Servicer, the Special Servicer, and
the Trustee has an obligation to conduct any investigation with respect to such
matters (except, in the case of the Mortgage Files, to the extent provided in
Section 2.01); provided, however, that in lieu of effecting any such repurchase,
within two years of the Startup Day, the Mortgage Loan Seller will be permitted
to deliver a Qualifying Substitute Mortgage Loan and to pay cash equal to the
applicable Substitution Shortfall Amount, subject to the terms of the Mortgage
Loan Purchase Agreement and this Agreement. The failure of the Servicer, the
Special Servicer or Trustee to notify the Mortgage Loan Seller shall not
constitute a waiver of any cure or repurchase obligation.
As to any Qualifying Substitute Mortgage Loan, the Trustee shall direct
the Mortgage Loan Seller to deliver to the Trustee for such Qualifying
Substitute Mortgage Loan (with a copy to the Servicer), the related Mortgage
File with the related Note endorsed as required by Section 2.01(i) hereof.
Monthly Payments due with respect to Qualifying Substitute Mortgage Loans in the
month of substitution shall not be part of the Trust Fund and will be retained
by the Servicer and remitted by the Servicer to the Mortgage Loan Seller on the
next succeeding Distribution Date. For the month of substitution, distributions
to Certificateholders will include the Monthly Payment due on the related
Removed Mortgage Loan for such month and thereafter the Mortgage Loan Seller
shall be entitled to retain all amounts received in respect of such Removed
Mortgage Loan.
In any month in which the Mortgage Loan Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Removed Mortgage Loans, the
Servicer
66
will determine the applicable Substitution Shortfall Amount. The Trustee shall
direct the Mortgage Loan Seller to deposit cash equal to such amount into the
Collection Account concurrently with the delivery of the Mortgage Files for such
Qualifying Substitute Mortgage Loans, without any reimbursement thereof The
Trustee shall also direct the Mortgage Loan Seller to give written notice to the
Depositor and the Servicer of such deposit. The Trustee shall amend the Mortgage
Loan Schedule to reflect the removal of each Removed 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 Loans shall be subject to the
terms of this Agreement in all respects.
(f) Upon receipt by the Servicer from the Depositor or the Mortgage
Loan Seller of the Repurchase Price for the Removed Mortgage Loan, the Servicer
shall deposit such amount in the Collection Account, and the Trustee, pursuant
to Section 3.11, shall, upon receipt of a certificate of a Servicing Officer
certifying as to the receipt by the Servicer of the Repurchase Price and the
deposit of the Repurchase Price into the Collection Account pursuant to this
Section 2.03(f), release or cause to be released to the Depositor or the
Mortgage Loan Seller the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be prepared by the Servicer to vest in the
Depositor or the Mortgage Loan Seller any Mortgage Loan released pursuant
hereto, and any rights of the Depositor in, to and under the Mortgage Loan
Purchase Agreement as it related to such Removed Mortgage Loan that was
initially transferred to the Trust Fund under Section 2.01, and the Trustee and
the Servicer shall have no further responsibility with regard to such Mortgage
File.
(g) Upon a substitution of a Mortgage Loan, the Trustee, pursuant to
Section 3.11, shall, upon receipt of the Mortgage File for such Qualifying
Substitute Mortgage Loan and receipt of a certificate of a Servicing Officer
certifying as to the receipt by the Servicer of a copy of the Mortgage File for
such Qualifying Substitute Mortgage Loans and the applicable Substitution
Shortfall Amount and the deposit of the Substitution Shortfall Amount into the
Collection Account pursuant to this Section 2.03(g), release or cause to be
released to the Depositor or the Mortgage Loan Seller the related Mortgage File
of the related Removed Mortgage Loan and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be prepared by the Servicer to vest in the
Depositor or the Mortgage Loan Seller any Removed Mortgage Loan released
pursuant hereto, and any rights of the Depositor in, to and under the Mortgage
Loan Purchase Agreement as it related to such Removed Mortgage Loan that was
initially transferred to the Trust Fund under Section 2.01, and the Trustee and
the Servicer shall have no further responsibility with regard to such Mortgage
File.
(h) In the event that any litigation is commenced which alleges facts
which, in the judgment of the Depositor, could constitute a breach of any of the
Depositor's representations and warranties relating to the Mortgage Loans, the
Depositor hereby reserves the right to conduct the defense of such litigation at
its expense.
67
(i) If for any reason the Mortgage Loan Seller or the Depositor fails
to fulfill its obligations under this Section 2.03 with respect to any Mortgage
Loan, the Servicer shall use reasonable efforts in enforcing any obligation of
the Mortgage Loan Seller to cure, repurchase or substitute such Mortgage Loan
under the terms of the Mortgage Loan Purchase Agreement.
SECTION 2.04. Representations, Warranties and Covenants of the
Servicer, Special Servicer and Trustee.
(a) The Servicer, as Servicer, hereby represents, warrants and
covenants that as of the Closing Date or as of such date specifically provided
herein:
(i) The Servicer is a limited liability company, duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has all licenses necessary to carry on its
business as now being conducted and is in compliance with the
laws of each state (within the United States of America) in
which any Mortgaged Property is located to the extent necessary
to comply with its duties and responsibilities hereunder with
respect to each Mortgage Loan in accordance with the terms of
this Agreement;
(ii) The Servicer has the full power, authority and legal right to
execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the
Servicer and its performance and compliance with the terms of
this Agreement will not violate the Servicer's certificate of
formation or operating agreement, or constitute a default (or an
event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the
Servicer is a party or which may be applicable to the Servicer
or any of its assets;
(iii) This Agreement has been duly and validly authorized, executed
and delivered by the Servicer and, assuming due authorization,
execution and delivery by the other parties hereto, constitutes
a legal, valid and binding obligation of the Servicer,
enforceable against it in accordance with the terms of this
Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and all requisite limited
liability action has been taken by the Servicer to make this
Agreement and all agreements contemplated hereby valid and
binding upon the Servicer in accordance with their terms;
(iv) The Servicer is not in violation of, and the execution and
delivery of this Agreement by the Servicer and its performance
and compliance with the
68
terms of this Agreement will not constitute a violation with
respect to, any order or decree of any court binding on the
Servicer or any law, order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, or result
in the creation or imposition of any lien, charge or encumbrance
which, in any such event, would have consequences that would
materially and adversely affect the condition (financial or
otherwise) or operation of the Servicer or its properties or
impair the ability of the Trust Fund to realize on the Mortgage
Loans;
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Servicer which, either in any one
instance or in the aggregate, would result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Servicer, or would, if adversely
determined, materially impair the ability of the Servicer to
carry on its business substantially as now conducted, or in any
material liability on the part of the Servicer, or which would
draw into question the validity of this Agreement or the
Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated
herein, or which would be likely to impair materially the
ability of the Servicer to perform under the terms of this
Agreement; and
(vi) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or
body, is required for the execution, delivery and performance by
the Servicer of or compliance by the Servicer with this
Agreement, or if required, such approval has been obtained prior
to the Cut-off Date.
(vii) The Servicer hereby covenants, to its best knowledge, which may
be based upon information obtained from vendors who have
responded to Servicer's supplier inquiries and/or from
information obtained by Servicer from sources which Servicer
reasonably believes are reliable, that by August 31, 1999, any
custom-made software or hardware designed or purchased or
licensed by Servicer, which 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 December 31, 1999 as a result of the changing of the
date from 1999 to 2000, including leap year calculations, when
used for the purpose for which it was intended, assuming that
all other products, including other software or hardware, when
used in combination with such software or hardware designed or
purchased or licensed by the Servicer property exchange date
data.
(b) The Special Servicer, as Special Servicer, hereby represents,
warrants and covenants that as of the Closing Date or as of such date
specifically provided herein:
69
(i) The Special Servicer is a limited liability company, duly
organized, validly existing and in good standing under the laws
of the State of Delaware and has all licenses necessary to carry
on its business as now being conducted and is in compliance with
the laws of each state (within the United States of America) in
which any Mortgaged Property is located to the extent necessary
to comply with its duties and responsibilities hereunder with
respect to each Mortgage Loan in accordance with the terms of
this Agreement;
(ii) The Special Servicer has the full power, authority and legal
right to execute and deliver this Agreement and to perform in
accordance herewith; the execution and delivery of this
Agreement by the Special Servicer and its performance and
compliance with the terms of this Agreement will not violate the
Special Servicer's certificate of formation or operating
agreement or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract,
agreement or other instrument to which the Special Servicer is a
party or which may be applicable to the Special Servicer or any
of its assets;
(iii) This Agreement has been duly and validly authorized, executed
and delivered by the Special Servicer and, assuming due
authorization, execution and delivery by the other parties
hereto, constitutes a legal, valid and binding obligation of the
Special Servicer, enforceable against it in accordance with the
terms of this Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and all requisite limited
liability action has been taken by the Special Servicer to make
this Agreement and all agreements contemplated hereby valid and
binding upon the Special Servicer in accordance with their
terms;
(iv) The Special Servicer is not in violation of, and the execution
and delivery of this Agreement by the Special Servicer and its
performance and compliance with the terms of this Agreement will
not constitute a violation with respect to, any law, order or
decree of any court binding on the Special Servicer or any order
or regulation of any federal, state, municipal or governmental
agency having jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance which, in any such
event, would have consequences that would materially and
adversely affect the condition (financial or otherwise) or
operation of the Special Servicer or its properties or impair
the ability of the Trust Fund to realize on the Mortgage Loans;
70
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Special Servicer which, either in any one
instance or in the aggregate, would result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Special Servicer, or in any material
impairment of the right, or would, if adversely determined,
materially impair the ability of the Special Servicer to carry
on its business substantially as now conducted, or in any
material liability on the part of the Special Servicer, or which
would draw into question the validity of this Agreement or the
Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Special Servicer
contemplated herein, or which would be likely to impair
materially the ability of the Special Servicer to perform under
the terms of this Agreement; and
(vi) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or
body, is required for the execution, delivery and performance by
the Special Servicer of or compliance by the Special Servicer
with this Agreement, or if required, such approval has been
obtained prior to the Cut-off Date.
(vii) 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 December 31,
1999 as a result of the changing of the date from 1999 to 2000,
including leap year calculations, when used for the purpose for
which it was intended, assuming that all other products,
including other software or hardware, when used in combination
with such software or hardware designed or purchased or licensed
by the Special Servicer property exchange date data.
(c) It is understood and agreed that the representations and warranties
set forth in this Section shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian on behalf of the Trustee until the
termination of this Agreement, and shall inure to the benefit of the Trustee,
the Depositor and the Servicer or Special Servicer, as the case may be. Upon
discovery by the Depositor, the Servicer, the Special Servicer, the Automobile
Adviser or a Responsible Officer of the Trustee (or upon written notice thereof
from any Certificateholder) of a breach of any of the representations and
warranties set forth in this Section which materially and adversely affects the
interests of the Certificateholders, the Servicer, Special Servicer,
71
Automobile Adviser or the Trustee in any Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties hereto and the
Mortgage Loan Seller.
(d) The Trustee hereby represents and warrants that as of the
Closing Date:
(i) The Trustee is a national banking association duly organized,
validly existing, and in good standing under the laws of the
United States and has full power, authority and legal right to
own its properties and conduct its business as presently
conducted and to execute, deliver and perform the terms of this
Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Trustee and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a legal, valid
and binding instrument enforceable against the Trustee in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in
general and by general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at
law).
(iii) Neither the execution and delivery of this Agreement by the
Trustee nor the consummation by the Trustee of the transactions
herein contemplated to be performed by the Trustee, nor
compliance by the Trustee with the provisions hereof, will
conflict with or result in a breach of, or constitute a default
under, any of the provisions of any applicable law (subject to
the appointment in accordance with such applicable law of any
co-trustee or separate trustee required pursuant to this
Agreement), governmental rule, regulation, judgment, decree or
order binding on the Trustee or its properties or the
organizational documents of the Trustee or the terms of any
material agreement, instrument or indenture to which the Trustee
is a party or by which it is bound.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans and
the delivery of the Mortgage Files to the Custodian (to the extent the documents
constituting the Mortgage Files are actually delivered to the Custodian),
subject to the provisions of Section 2.01 and Section 2.02 and, concurrently
with such delivery, (i) acknowledges the issuance of the Lower-Tier Regular
Interests and the Class LR Certificate and hereby declares that it holds the
Lower-Tier Regular Interests on behalf of the Middle-Tier REMIC and the Holders
of the Class LR Certificates (ii) acknowledges the issuance of the Middle-Tier
Regular Interests and the Class MR Certificates, and declares that it holds the
Middle-Tier Regular Interests and other assets of the Middle-Tier REMIC on
behalf of the Upper-Tier REMIC and the Holders of the Class MR Certificates, and
(iii) has caused to be executed and caused to be authenticated and delivered to
72
or upon the order of the Depositor, or as directed by the terms of this
Agreement, Class A-1, Class A-2, Class X (and acknowledges the issuance of each
Class X Component thereof), Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class Q-l, Class Q-2, Class R, Class MR
and Class LR Certificates in authorized denominations, in each case registered
in the names set forth in such order or so directed in this Agreement and duly
authenticated by the Authenticating Agent, which Certificates (described in the
preceding clause (iii)), Lower-Tier Regular Interests and Middle-Tier Regular
Interests evidence ownership of the entire Trust Fund.
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The 221 Classes of Lower-Tier Regular Interests (designated as the
Class 1 Lower-Tier Interest through the Class 221 Lower-Tier Interest) issued
hereunder are hereby designated as the "regular interests," within the meaning
of Section 860G(a)(2) of the Code, of the Lower-Tier REMIC, and the Class LR
Certificates are hereby designated as the sole class of "residual interests,"
within the meaning of Section 860G(a)(2) of the Code, of the Lower-Tier REMIC.
The Class A-1M, Class A-2M, Class B-M, Class C-M, Class ▇-▇, Class E-M, Class
F-M, Class G-M, Class H-M, Class ▇-▇, Class K-M, Class ▇-▇ Interests are hereby
designated as "regular interests" within the meaning of Section 860G(a)(1) of
the Code, in the Middle-Tier REMIC and the Class MR Certificates are hereby
designated as the sole Class of "residual interests" in the Middle-Tier REMIC
within the meaning of Section 860G(a)(2) of the Code. The Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K
and Class L Certificates and each Class X Component represented by the Class X
Certificates are hereby designated as "regular interests" within the meaning of
Section 860G(a)(1) of the Code in the Upper-Tier REMIC and the Class R
Certificates are hereby designated as the sole Class of "residual interests" in
the Upper-Tier REMIC within the meaning of Section 860G(a)(2) of the Code. Each
Class X Certificate represents an interest in each of the twelve separate Class
X Components which are Classes of regular interests in the Upper-Tier REMIC, and
each Class X Component is entitled to a "specified portion" of the interest
payments on the Middle-Tier Regular Interests, within the meaning of Treasury
Regulations Section l.860G-1(a)(2). The Closing Date is hereby designated as the
"Startup Day" of the Lower-Tier REMIC, the Middle-Tier REMIC and the Upper-Tier
REMIC within the meaning of Section 860G(a)(9) of the Code. The "latest possible
maturity date" of the Lower-Tier Regular Interests, the Middle-Tier Regular
Interests and the Regular Certificates for purposes of Section 860G(a)(l) of the
Code is the Scheduled Final Distribution Date. The initial Lower-Tier Balance
and the Pass-Through Rate of each Class of the Lower-Tier Regular Interests is
set forth in Section 4.0l (a)(i). The initial Middle-Tier Balance and the
Pass-Through Rate of each Class of Middle-Tier Regular Interests also is set
forth in Section 4.01(a).
(b) The Class Q-l Certificates represent an undivided beneficial
interests in the portion of the Trust Fund consisting of the Default Interest
collected on the Mortgage Loans and held from time to time in the Default
Interest Distribution Account, subject to the obligations to pay the Advance
Interest Amount on the related Mortgage Loans. The Class Q-2 Certificates
represent an undivided beneficial interests in the portion of the Trust Fund
consisting of the Excess Interest collected on the Mortgage Loans and held from
time to time in the Excess
73
Interest Distribution Account. The Class Q-l and Class Q-2 Certificates do not
represent regular or residual interests in the Upper-Tier REMIC, the Middle-Tier
REMIC or the Lower-Tier REMIC.
(c) None of the Depositor, the Trustee, the Servicer, the Fiscal Agent
or the Special Servicer shall enter into any arrangement by which the Trust Fund
will receive a fee or other compensation for services other than as specifically
contemplated herein.
ARTICLE III.
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Administration of the
Mortgage Loans.
(a) The Servicer and the Special Servicer, each as an independent
contractor servicer, shall service and administer the Mortgage Loans on behalf
of the Trust Fund and the Trustee (as trustee for the Certificateholders) in
accordance with the Servicing Standard.
The Servicer's or Special Servicer's liability for actions and
omissions in its capacity as Servicer or Special Servicer, as the case may be,
hereunder is limited as provided herein (including, without limitation, pursuant
to Section 6.03 hereof). To the extent consistent with the foregoing and subject
to any express limitations set forth in this Agreement, the Servicer and Special
Servicer shall seek to maximize the timely and complete recovery of principal
and interest on the Notes; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Servicer or Special
Servicer of the collectability of the Mortgage Loans. Subject only to the
Servicing Standard, the Servicer and Special Servicer shall have full power and
authority, acting alone or through sub-servicers (subject to paragraph (c) of
this Section 3.01 and to Section 3.02), to do or cause to be done any and all
things in connection with such servicing and administration that it may deem
consistent with the Servicing Standard and, in its reasonable judgment, in the
best interests of the Certificateholders, including, without limitation, with
respect to each Mortgage Loan, to prepare, execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien on each Mortgaged Property and related collateral; (ii) any
modifications, waivers, consents or amendments to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties. Notwithstanding the foregoing, neither the
Servicer nor the Special Servicer shall modify, amend, waive or otherwise
consent to any change of the terms of any Mortgage Loan except under the
circumstances described in Sections 3.09, 3.10, 3.28 and 3.30 hereof. The
Servicer and Special Servicer shall service and administer the Mortgage Loans in
accordance with applicable law and shall provide to the Borrowers any reports
required to be provided to them thereby. Subject to Section 3.11, the Trustee
shall, upon
74
the receipt of a written request of a Servicing Officer, execute and deliver to
the Servicer and Special Servicer any powers of attorney and other documents
prepared by the Servicer and Special Servicer and necessary or appropriate (as
certified in such written request) to enable the Servicer and Special Servicer
to carry out their servicing and administrative duties hereunder.
(b) Unless otherwise provided in the related Note, the Servicer shall
apply any partial Principal Prepayment received on a Mortgage Loan on a date
other than a Due Date to the principal balance of such Mortgage Loan as of the
Due Date immediately following the date of receipt of such partial Principal
Prepayment. Unless otherwise provided in the related Note, the Servicer shall
apply any amounts received on U.S. Treasury obligations (which shall not be
redeemed by the Servicer prior to the maturity thereof) in respect of a Mortgage
Loan being defeased pursuant to its terms to the principal balance of and
interest on such Mortgage Loan as of the Due Date immediately following the
receipt of such amounts.
(c) Each of the Servicer and the Special Servicer may enter into
sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided, that (i) any such agreement shall be
consistent with the provisions of this Agreement and (ii) no sub-servicer
retained by the Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan without the approval of
the Servicer or the Special Servicer, as applicable, which approval shall be
given or withheld in accordance with the procedures set forth in Sections 3.09,
3.10, 3.28 or 3.30, (iii) such agreement shall be consistent with the Servicing
Standard and (iv) such third party shall be acceptable to each Rating Agency as
confirmed by a letter from each Rating Agency that such agreement will not cause
a downgrade, withdrawal or qualification of the then-current ratings on the
Certificates. Any such sub-servicing agreement may permit the sub-servicer to
delegate its duties to agents or subcontractors so long as the related
agreements or arrangements with such agents or subcontractors are consistent
with the provisions of this Section 3.01(c).
Any sub-servicing agreement entered into by the Servicer or the Special
Servicer, as applicable, shall provide that it may be assumed or terminated by
the Trustee or the Servicer, respectively, if the Trustee or the Servicer,
respectively, has assumed the duties of the Servicer or the Special Servicer,
respectively, or any successor Servicer or Special Servicer, as applicable,
without cost or obligation to the assuming or terminating party or the Trust
Fund, upon the assumption by such party of the obligations of the Servicer or
the Special Servicer, as applicable, pursuant to Section 7.02.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Servicer or the Special Servicer, as applicable, and such
sub-servicer alone, and the Trustee, the Trust Fund and the Certificateholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the sub-servicer, except as
set forth in Section 3.01(d) or to the extent that the Trust Fund is required to
indemnify any such sub-servicer.
(d) If the Trustee or any successor Servicer assumes the obligations of
the Servicer, or if the Servicer or any successor Special Servicer assumes the
obligations of the Special Servicer, in each case in accordance with Section
7.02, the Trustee, the Servicer or such
75
successor, as applicable, to the extent necessary to permit the Trustee, the
Servicer or such successor, as applicable, to carry out the provisions of
Section 7.02, shall, without act or deed on the part of the Trustee, the
Servicer or such successor, as applicable, succeed to all of the rights and
obligations of the Servicer or the Special Servicer, as applicable, under any
sub-servicing agreement entered into by the Servicer or the Special Servicer, as
applicable, pursuant to Section 3.01(c), subject to the right of termination by
the Trustee or Servicer, as applicable, set forth in Section 3.01(c). In such
event, the Trustee, the Servicer or the successor Servicer or the Special
Servicer, as applicable, shall be deemed to have assumed all of the Servicer's
or the Special Servicer's interest, as applicable, therein (but not any
liabilities or obligations in respect of acts or omissions of the Servicer or
the Special Servicer, as applicable, prior to such deemed assumption) and to
have replaced the Servicer or the Special Servicer, as applicable, as a party to
such sub-servicing agreement to the same extent as if such sub-servicing
agreement had been assigned to the Trustee, the Servicer or such successor
Servicer or successor Special Servicer, as applicable, except that the Servicer
or the Special Servicer, as applicable, shall not thereby be relieved of any
liability or obligations under such sub-servicing agreement that accrued prior
to the succession of the Trustee, the Servicer or the successor Servicer or
successor Special Servicer, as applicable.
If the Trustee, the Servicer or any successor Servicer or Special
Servicer, as applicable, assumes the servicing obligations of the Servicer or
the Special Servicer, as applicable, then upon request of the Trustee, the
Servicer or such successor Servicer or Special Servicer, as applicable, the
Servicer or Special Servicer shall at its own expense (except in the event that
the Servicer is terminated pursuant to Section 6.04(c), in which event, at the
expense of the Certificateholders effecting such termination) deliver to the
Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, all documents and records relating to any sub-servicing agreement
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it, if any, and will otherwise shall use its best
efforts to effect the orderly and efficient transfer of any sub-servicing
agreement to the Trustee, the Servicer or the successor Servicer or Special
Servicer, as applicable.
SECTION 3.02. Liability of the Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Servicer or
Special Servicer and any Person acting as sub-servicer (or its agents or
subcontractors) or any reference to actions taken through any Person acting as
sub-servicer or otherwise, the Servicer or Special Servicer, as applicable,
shall remain obligated and primarily liable to the Trustee and
Certificateholders for the servicing and administering of the Mortgage Loans in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such sub-servicing agreements or
arrangements or by virtue of indemnification from the Depositor or any other
Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Servicer or Special
Servicer, as applicable, alone were servicing and administering the Mortgage
Loans. Each of the Servicer and the Special Servicer shall be entitled to enter
into an agreement with any sub-servicer providing for indemnification of the
Servicer or Special Servicer, as applicable, by such sub-servicer, and nothing
contained in
76
this Agreement shall be deemed to limit or modify such indemnification, but no
such agreement for indemnification shall be deemed to limit or modify this
Agreement.
SECTION 3.03. Collection of Certain Mortgage Loan Payments.
(a) The Servicer or the Special Servicer (with respect to Specially
Serviced Mortgage Loans), as applicable, shall use reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans it
is obligated to service hereunder, and shall follow the Servicing Standard with
respect to such collection procedures. With respect to each Specially Serviced
Mortgage Loan, the Special Servicer shall use its reasonable efforts to collect
income statements and rent rolls from Borrowers as required by the Loan
Documents and the terms hereof and shall provide copies thereof to the Servicer
as provided herein. The Servicer shall provide at least six months' notice to
the Special Servicer and Borrowers of Balloon Payments coming due. Consistent
with the foregoing, the Servicer or Special Servicer (with respect to Specially
Serviced Mortgage Loans), as applicable, may in its discretion waive any late
payment charge in connection with any delinquent Monthly Payment or Balloon
Payment with respect to any Mortgage Loan. In addition, the Special Servicer
shall be entitled to take such actions with respect to the collection of
payments on the Mortgage Loans as are permitted or required under Section 3.28
hereof.
(b) In the event that the Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Excess
Interest in any Collection Period, the Servicer or Special Servicer, as
applicable, will promptly notify the Trustee.
(c) The Servicer or the Special Servicer, as applicable, shall on each
Distribution Date make payment to the holder of the Retained Interest in an
amount equal to one-twelfth of the per annum rate set forth on Exhibit N
attached hereto based on the then-outstanding principal balance of the related
Mortgage Loan. In the event that the amount collected by the Servicer or Special
Servicer, as applicable, in respect of any Collection Period is less than the
interest portion of the Monthly Payment, such interest shortfall shall be
allocated pro rata between the Retained Interest and the related Mortgage Loan
held by the Trust. If amounts representing such interest shortfall are
thereafter collected by the Servicer or Special Servicer, as applicable, such
late payments of interest shall be allocated pro rata between the Retained
Interest and the related Mortgage Loan held by the Trust.
SECTION 3.04. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage
Loan), the Servicer shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of taxes, assessments and other similar
items that are or may become a lien on the related Mortgaged Property and the
status of insurance premiums payable with respect thereto. From time to time,
the Servicer shall (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills with respect to
such Mortgaged Properties prior to the applicable penalty or termination date,
in each case
77
employing for such purpose Escrow Payments as allowed under the terms of the
related Mortgage Loan. If a Borrower fails to make any such payment on a timely
basis or collections from the Borrower are insufficient to pay any such item
before the applicable penalty or termination date, the Servicer shall advance
the amount of any shortfall as a Property Advance unless the Servicer determines
in its good faith business judgment that such Advance would be a Nonrecoverable
Advance. The Servicer shall be entitled to reimbursement of Advances, with
interest thereon at the Advance Rate, that it makes pursuant to the preceding
sentence from amounts received on or in respect of the related Mortgage Loan
respecting which such Advance was made or if such Advance has become a
Nonrecoverable Advance, to the extent permitted by Section 3.06 of this
Agreement. No costs incurred by the Servicer in effecting the payment of taxes
and assessments on the Mortgaged Properties shall, for the purpose of
calculating distributions to Certificateholders, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
(b) The Servicer shall segregate and hold all funds collected and
received pursuant to any Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Payments shall be deposited within one (1) Business Day
after receipt. The Servicer shall also deposit into each Escrow Account any
amounts representing losses on Permitted Investments pursuant to Section 3.07(b)
and any Insurance Proceeds or Liquidation Proceeds which are required to be
applied to the restoration or repair of any Mortgaged Property pursuant to the
related Mortgage Loan. Escrow Accounts shall be Eligible Accounts (except to the
extent the related Mortgage Loan requires it to be held in an account that is
not an Eligible Account) and shall be entitled "Banc One Mortgage Capital
Markets, LLC, as Servicer, in trust for LaSalle National Bank, as Trustee in
trust for Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM
1999-1 Commercial Mortgage Pass-Through Certificates, and Various Borrowers".
Withdrawals from an Escrow Account may be made by the Servicer only:
(i) to effect timely payments of items constituting Escrow Payments
for the related Mortgage;
(ii) to transfer funds to the Collection Account to reimburse the
Servicer, the Special Servicer, the Trustee or the Fiscal Agent,
as applicable, for any Advance (with interest thereon at the
Advance Rate) relating to Escrow Payments, but only from amounts
received with respect to the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan
and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement;
78
(v) to pay from time to time to the related Borrower any interest or
investment income earned on funds deposited in the Escrow
Account if such income is required to be paid to the related
Borrower under law or by the terms of the Mortgage Loan, or
otherwise to the Servicer; or
(vi) to remove any funds deposited in an Escrow Account that were not
required to be deposited therein.
SECTION 3.05. Collection Account; Distribution Account; Interest
Reserve Account; Middle-Tier Distribution Account and
Upper-Tier Distribution Account.
(a) The Servicer shall establish and maintain the Collection Account in
the Trustee's name, for the benefit of the Certificateholders and the Trustee as
the Holder of the Lower-Tier Regular Interests. The Collection Account shall be
established and maintained as an Eligible Account. The Servicer shall deposit or
cause to be deposited in the Collection Account (in the case of Default Interest
or Excess Interest, in separate sub-accounts of the Collection Account, which
the Servicer shall hold for the Trustee for the benefit of the Class Q-1 and
Class Q-2 Certificateholders apart from any amounts in the Collection Account
held for the Trustee for the benefit of REMIC Certificateholders) within one
Business Day following receipt the following payments and collections received
or made by it on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans,
including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and
the interest portion of all Unscheduled Payments, Prepayment
Premiums, Default Interest and Excess Interest;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted
Investments with respect to funds held in the Collection
Account;
(iv) all Net REO Proceeds withdrawn from an REO Account pursuant to
Section 3.17(b);
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses, to the extent not permitted to
be retained by the Servicer or Special Servicer as provided
herein;
(vi) any other amounts required by the provisions of this Agreement
to be deposited into the Collection Account by the Servicer or
Special Servicer; and
(vii) any Servicer Prepayment Interest Shortfalls.
79
The foregoing requirements for deposits in the Collection Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
(subject to Section 3.12 hereof), Assumption Fees, loan modification fees, loan
service transaction fees, extension fees, demand fees, beneficiary statement
charges and similar fees need not be deposited in the Collection Account by the
Servicer and, to the extent permitted by applicable law, the Servicer or the
Special Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Mortgage Loans as additional compensation. In the event that the 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.
(b) The Trustee shall establish and maintain the Distribution Account
in the name of the Trustee, in trust for the benefit of the Certificateholders
and the Trustee as the Holder of the Lower-Tier Regular Interests. The
Distribution Account shall be established and maintained as an Eligible Account.
With respect to each Distribution Date, upon receipt from the Servicer, the
Trustee shall deposit in the Distribution Account the amount of Available Funds,
to be distributed pursuant to Section 4.01 hereof on such Distribution Date.
(c) The Trustee shall establish and maintain the Interest Reserve
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests. The Interest Reserve Account shall be established and maintained as
an Eligible Account.
On each Servicer Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Trustee shall calculate the Withheld Amount. On each such Servicer
Remittance 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 calculated in accordance with the previous sentence. 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 Servicer Remittance 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.
The 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 3.12, net interest and
investment income earned in respect of amounts in the Interest Reserve Account.
(d) The Trustee shall establish and maintain the Middle-Tier
Distribution Account in the name of the Trustee, in trust for the benefit of the
Upper-Tier REMIC. The Middle-Tier Distribution Account shall be established and
maintained as an Eligible Account or a subaccount of an Eligible Account. With
respect to each Distribution Date, the Trustee shall withdraw from the
Distribution Account (and, if required by Section 3.05(c) with respect to such
80
date, from the Interest Reserve Account) and deposit in the Middle-Tier
Distribution Account the Lower-Tier Distribution Amount and Prepayment Premiums
to be distributed in respect of the Lower-Tier Regular Interests and Class LR
Certificates pursuant to Sections 4.01(a)(ii) and (c)(ii) hereof on such date.
The Trustee shall also establish and maintain the Upper-Tier Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders. The Upper-Tier Distribution Account shall be established and
maintained as an Eligible Account or a sub-account of an Eligible Account. With
respect to each Distribution Date, the Trustee shall withdraw from the
Middle-Tier Distribution Account and deposit in the Upper-Tier Distribution
Account on or before such date the Middle-Tier Distribution Amount and
Prepayment Premiums to be distributed in respect of the Middle-Tier Regular
Interests pursuant to Section 4.0l(a)(iii) and Section 4.0l(c)(ii) hereof on
such date.
(e) Prior to the Servicer Remittance Date relating to any Collection
Period in which Default Interest is received, the Trustee shall establish and
maintain the Default Interest Distribution Account in the name of the Trustee in
trust for the benefit of the Holders of the Class Q-l Certificates. The Default
Interest Distribution Account shall be established and maintained as an Eligible
Account. On or before the Servicer Remittance Date related to each Distribution
Date, the Servicer shall remit to the Trustee for its deposit in the Default
Interest Distribution Account an amount equal to (i) the amount of the aggregate
Default Interest received during the preceding Collection Period, minus (ii) any
portions thereof withdrawn from the Collection Account pursuant to clause (iii)
of Section 3.06 (such amount, if any, the "Net Default Interest" for such
Distribution Date).
(f) Prior to the Servicer Remittance Date relating to any Collection
Period in which Excess Interest is received, the Trustee shall establish and
maintain the Excess Interest Distribution Account in the name of the Trustee in
trust for the benefit of the Holders of the Class Q-2 Certificates. The Excess
Interest Distribution Account shall be established and maintained as an Eligible
Account. On or before the Servicer Remittance Date related to the applicable
Distribution Date, the Servicer shall remit to the Trustee for its deposit in
the Excess Interest Distribution Account an amount equal to the Excess Interest
received during the applicable Collection Period. Following the distribution of
Excess Interest to Certificateholders on the first Distribution Date after which
there are no longer any Mortgage Loans outstanding which pursuant to their terms
could pay Excess Interest, the Trustee shall terminate the Excess Interest
Distribution Account.
(g) Funds in the Collection Account, the Distribution Account, the
Interest Reserve Account, the Middle-Tier Distribution Account, the Upper-Tier
Distribution Account, the Default Interest Distribution Account and the Excess
Interest Distribution Account may be invested in Permitted Investments in
accordance with the provisions of Section 3.07. The Servicer shall give written
notice to the Trustee of the location and account number of the Collection
Account and shall notify the Trustee in writing prior to any subsequent change
thereof.
81
SECTION 3.06. Permitted Withdrawals from the Collection Account.
The Servicer may make withdrawals from the Collection Account only as
described below (the order set forth below not constituting an order of priority
for such withdrawals):
(i) to remit to the Trustee for deposit the amounts required to be
deposited in the Distribution Account, the Interest Reserve
Account, the Default Interest Distribution Account and the
Excess Interest Distribution Account, pursuant to Sections 3.05
(c), 3.05(d), 3.05(e), 3.05(f) and 4.06;
(ii) to pay or reimburse the Trustee, the Fiscal Agent, the Servicer
and the Special Servicer for Advances (provided, that the
Trustee and the Fiscal Agent shall have priority with respect to
such payment or reimbursement), the Servicer's right to
reimburse any such Person pursuant to this clause (ii) being
limited to (x) any collections on or in respect of the
particular Mortgage Loan or REO Property with respect to which
such Advance was made, or (y) any other amounts in the
Collection Account in the event that such Advances or any
Advance Interest Amount have been deemed to be Nonrecoverable
Advances or are not reimbursed from recoveries in respect of the
related Mortgage Loan or REO Property after a Final Recovery
Determination;
(iii) (A) to pay to the Servicer, the Trustee or the Fiscal Agent the
Advance Interest Amount relating to P&I Advances and (B) to pay
to the Servicer, Special Servicer, Trustee or Fiscal Agent any
Advance Interest Amounts not relating to any P&I Advances, in
each case, first, out of any collected Default Interest
(provided that in the case of both (A) and (B), the Trustee and
the Fiscal Agent shall have priority with respect to such
payments);
(iv) to pay on or before each Servicer Remittance Date to the
Servicer and the Special Servicer, as applicable, as
compensation, the aggregate unpaid Servicing Compensation and
Special Servicing Compensation (if any, including any Workout
Fee due to a previous Special Servicer pursuant to Section
3.12(c)), respectively, in respect of the immediately preceding
month, to be paid, in the case of the Servicing Fee, from
interest received on the related Mortgage Loan, and to pay from
time to time to the Servicer or the Special Servicer in
accordance with Section 3.07(b) any interest or investment
income earned on funds deposited in the Collection Account) (the
Servicer may rely on a certification of the Special Servicer as
to amounts of Special Servicing Compensation to be withdrawn
pursuant to this clause (iv));
82
(v) to remit to the Distribution Account, an amount equal to the
Trustee Fee in respect of the immediately preceding month to be
paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Mortgage Loan
Seller with respect to each Mortgage Loan or REO Property that
has previously been purchased or repurchased by it pursuant to
Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01,
all amounts received thereon during the related Collection
Period and subsequent to the date as of which the amount
required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other
clause of this Section 3.06, to reimburse or pay the Servicer,
the Trustee, the Special Servicer, the Depositor or the Fiscal
Agent, as applicable, for unpaid Servicing Fees, Special
Servicing Compensation, and other unpaid items incurred by such
Person pursuant to the second sentence of Section 3.07(c),
Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section
3.17(a), (b) and (c), Section 3.18(a), the fourth paragraph of
Section 3.22, 3.28, Section 6.03, Section 7.04, Section
8.01(c)(v), Section 8.05(d) or Section 10.07, or any other
provision of this Agreement pursuant to which such Person is
entitled to reimbursement or payment from the Trust Fund, in
each case only to the extent reimbursable under such Section, it
being acknowledged that this clause (vii) shall not be deemed to
modify the substance of any such Section, including the
provisions of such Section that set forth the extent to which
one of the foregoing Persons is or is not entitled to payment or
reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate,
non-interest bearing accounts any amount reasonably determined
by the Trustee to be necessary to pay any applicable federal,
state or local taxes imposed on the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC under the
circumstances and to the extent described in Section 4.05;
(ix) to withdraw any amount deposited into the Collection Account
that was not required to be deposited therein; and
(x) to clear and terminate the Collection Account pursuant to
Section 9.01.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account pursuant to subclauses (ii)-(vii) above.
The Servicer shall pay to the Trustee, the Fiscal Agent or the Special
Servicer from the Collection Account (to the extent permitted by clauses
(i)-(viii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent
or the Special Servicer therefrom, promptly
83
upon receipt of a certificate of a Responsible Officer of the Trustee or the
Fiscal Agent or a certificate of a Servicing Officer, as applicable, describing
the item and amount to which such Person is entitled. The Servicer may rely
conclusively on any such certificate and shall have no duty to recalculate the
amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer and the Servicer
shall in all cases have a right prior to the Certificateholders to any funds on
deposit in the Collection Account from time to time for the reimbursement or
payment of the Servicing Compensation (including investment income), or Trustee
Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their
respective expenses hereunder to the extent such fees and expenses are to be
reimbursed or paid from amounts on deposit in the Collection Account pursuant to
this Agreement (and to have such amounts paid directly to third party
contractors for any invoices approved by the Trustee, the Servicer or the
Special Servicer, as applicable) and any federal, state or local taxes imposed
on the Upper-Tier REMIC, the Middle-Tier REMIC or Lower-Tier REMIC.
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the Lock-Box Accounts, the Cash Collateral
Accounts and the Reserve Accounts.
(a) The Servicer (or with respect to any REO Account, the Special
Servicer) may direct any depository institution maintaining the Collection
Account, the Interest Reserve Account, any Borrower Accounts (subject to the
second succeeding sentence), and any REO Account (each, for purposes of this
Section 3.07, an "Investment Account"), to invest the funds in such Investment
Account in one or more Permitted Investments that bear interest or are sold at a
discount, and that mature, unless payable on demand, no later than the Business
Day preceding the date on which such funds are required to be withdrawn from
such Investment Account pursuant to this Agreement. Any investment of funds on
deposit in an Investment Account by the Servicer or the Special Servicer shall
be documented in writing and shall provide evidence that such investment is a
Permitted Investment which matures at or prior to the time required hereby or is
payable on demand. In the case of any Escrow Account, Lock-Box Account, Cash
Collateral Account or Reserve Account (the "Borrower Accounts"), the Servicer
shall act upon the written request of the related Borrower or Manager to the
extent the Servicer is required to do so under the terms of the respective
Mortgage Loan or related documents, provided that in the absence of appropriate
written instructions from the related Borrower or Manager meeting the
requirements of this Section 3.07. the Servicer shall have no obligation to, but
will be entitled to, direct the investment of funds in such accounts in
Permitted Investments. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment Account shall
be made in the name of the Trustee (in its capacity as such) or in the name of a
nominee of the Trustee. The Trustee shall have sole control (except with respect
to investment direction which shall be in the control of the Servicer or the
Special Servicer, with respect to any REO Accounts, as an independent contractor
to the Trust Fund) over each such investment and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Trustee or its agent (which shall initially be the Servicer), together with any
document of transfer, if any, necessary to transfer title to such investment to
the Trustee or its
84
nominee. The Trustee shall have no responsibility or liability with respect to
the investment directions of the Servicer, the Special Servicer, any Borrower or
Manager or any losses resulting therefrom, whether from Permitted Investments or
otherwise. The Servicer shall have no responsibility or liability with respect
to the investment directions of the Special Servicer, any Borrower or Manager or
any losses resulting therefrom, whether from Permitted Investments or otherwise.
In the event amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Servicer (or the
Special Servicer) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (1) all amounts then payable thereunder
and (2) the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Servicer (or the Special Servicer) that
such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
related Investment Account.
(b) All income and gain realized from investment of funds deposited in
any Investment Account shall be for the benefit of the Servicer (except with
respect to the investment of funds deposited in (i) any Borrower Account, which
shall be for the benefit of the related Borrower to the extent required under
the Mortgage Loan or applicable law or (ii) any REO Account, which shall be for
the benefit of the Special Servicer) and, if held in the Collection Account or
REO Account shall be subject to withdrawal by the Servicer or the Special
Servicer, as applicable, in accordance with Section 3.06 or Section 3.17(b), as
applicable. The Servicer, or with respect to any REO Account, the Special
Servicer, shall deposit from its own funds into the Collection Account, the
Interest Reserve Account or any REO Account, as applicable, the amount of any
loss incurred in respect of any such Permitted Investment immediately upon
realization of such loss; provided, however, that the Servicer or Special
Servicer, as applicable, may reduce the amount of such payment to the extent it
forgoes any investment income in such Investment Account otherwise payable to
it. The Servicer shall also deposit from its own funds in any Borrower Account
the amount of any loss incurred in respect of Permitted Investments, except to
the extent that amounts are invested at the direction of or for the benefit of
the Borrower under the terms of the Mortgage Loan or applicable law.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and upon the request of Holders of Certificates
representing greater than 50% of the Percentage Interests of any Class shall,
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings. In the
event the Trustee takes any such action, the Trust Fund shall pay or reimburse
the Trustee for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Trustee in connection
85
therewith. In the event that the Trustee does not take any such action, the
Servicer may take such action at its own cost and expense.
SECTION 3.08. Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage.
(a) The Servicer on behalf of the Trustee, as mortgagee, shall cause
the related Borrower to maintain, to the extent required by each Mortgage Loan
(other than REO Mortgage Loans), and if the Borrower does not so maintain, shall
itself maintain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) to the extent the Trustee as mortgagee has an insurable
interest and to the extent available at commercially reasonable rates, (i) fire
and hazard insurance with extended coverage on each related Mortgaged Property
in an amount which is at least equal to the lesser of (A) one hundred percent
(100%) of the then "full replacement cost" of the improvements and equipment
(excluding foundations, footings and excavation costs), without deduction for
physical depreciation, and (B) the outstanding principal balance of the related
Mortgage Loan, or such greater amount as is necessary to prevent any reduction
in such policy by reason of the application of co-insurance and to prevent the
Trustee thereunder from being deemed a co-insurer, (ii) insurance providing
coverage against at least 6 months (or such longer period or with such extended
period endorsement as provided in the related Mortgage or other loan document)
of rent interruptions and (iii) such other insurance as is required in the
related Mortgage Loan; provided that, if and to the extent that a Mortgage Loan
so permits, the related Borrower or the Servicer as described above shall be
required to exercise its best efforts to obtain the required insurance coverage
from a Qualified Insurer. The Special Servicer shall maintain fire and hazard
insurance with extended coverage on each REO Property (subject to the provisions
of this Agreement concerning Nonrecoverable Advances) as described above. If the
Special Servicer does not maintain the insurance described in the preceding
sentence or the required flood insurance described below, the Servicer shall, as
soon as practicable after receipt of notice of such failure, maintain such
insurance, and if the Servicer does not maintain such insurance, the insurance
required in the first sentence of this Section 3.08(a) or the required flood
insurance described below (if the related Borrower fails to maintain such
insurance), the Trustee shall, as soon as practicable after receipt of notice of
such failure, maintain such insurance and if the Trustee does not maintain such
insurance, the Fiscal Agent shall do so, provided that, in each such case, such
obligation will be subject to the provisions of this Agreement concerning
Nonrecoverable Advances. The Special Servicer shall maintain, with respect to
each REO Property (i) public liability insurance providing such coverage against
such risks as the Special Servicer determines, consistent with the related
Mortgage and the Servicing Standard, to be in the best interests of the Trust
Fund, (ii) insurance providing coverage against 24 months of rent interruptions
and (iii) such other insurance as is required pursuant to the terms of the
related Mortgage Loan. All insurance for an REO Property shall be from a
Qualified Insurer. Any amounts collected by the Servicer or the Special Servicer
under any such policies (other than amounts required to be applied to the
restoration or repair of the related Mortgaged Property or amounts to be
released to the Borrower in accordance with the terms of the related Mortgage)
shall be deposited into the Collection Account pursuant to Section 3.05, subject
to withdrawal pursuant to Section 3.06. Any cost incurred by the Servicer,
Special Servicer, Trustee or Fiscal Agent in maintaining any such insurance
shall not, for the purpose of calculating
86
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so permit. It is understood and agreed that no other additional insurance other
than flood insurance or earthquake insurance (subject to the conditions set
forth below) is to be required of any Borrower or to be maintained by the
Servicer other than pursuant to the terms of the related Mortgage and pursuant
to such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance.
If the improvements on the Mortgaged Property (other than an REO
Property) are located in a federally designated special flood hazard area, the
Servicer will use its best efforts to cause the related Borrower to maintain, to
the extent required by each Mortgage Loan, and if the related Borrower does not
so maintain, will itself obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) flood insurance in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan, (ii) the maximum amount of such
insurance required by the terms of the related Mortgage and as is available for
the related property under the National Flood Insurance Act of 1968, as amended,
if available and (iii) 100% of the replacement cost of the improvements located
in the special flood hazard area on the related Mortgaged Property, except to
the extent that self-insurance is permitted under the related Mortgage Loan. If
an REO Property (i) is located in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards or (ii)
is related to a Mortgage Loan pursuant to which earthquake insurance was in
place at the time of origination and continues to be available at commercially
reasonable rates, the Special Servicer will obtain (subject to the provisions of
this Agreement concerning Nonrecoverable Advances) flood insurance and/or
earthquake insurance in respect thereof providing substantially the same
coverage as described in the preceding sentences or, with respect to earthquake
insurance, in the amount required by the Mortgage Loan or, if not specified, in
place at origination. If at any time during the term of this Agreement a
recovery under a flood or fire and hazard insurance policy in respect of an REO
Property is not available but would have been available if such insurance were
maintained thereon in accordance with the standards applied to Mortgaged
Properties described herein, the Special Servicer shall (subject to the
provisions of this Agreement concerning Nonrecoverable Advances) either (i)
immediately deposit into the Collection Account from its own funds the amount
that would have been recovered or (ii) apply to the restoration and repair of
the property from its own funds the amount that would have been recovered, if
such application would be consistent with the Servicing Standard; provided,
however, that the Special Servicer shall not be responsible for any shortfall in
insurance proceeds resulting from an insurer's refusal or inability to pay a
claim.
In the case of any insurance otherwise required to be maintained
pursuant to this Section that is not being so maintained because the Servicer or
the Special Servicer, as applicable, has determined that it is not available at
commercially reasonable rates, the Servicer or the Special Servicer, as
applicable, shall deliver an Officers' Certificate to the Trustee and each
Rating Agency which details the steps that were taken in seeking such insurance
and the factors which led to the determination that such insurance was not so
available.
87
Costs to the Servicer, Special Servicer, the Trustee or the Fiscal
Agent of maintaining insurance policies pursuant to this Section 3.08 shall be
paid by the Servicer or Special Servicer as a Property Advance and shall be
reimbursable to the Servicer, Special Servicer, the Trustee or the Fiscal Agent
with interest at the Advance Rate, which reimbursement shall be effected under
Section 3.06(ii).
The Servicer (or the Special Servicer, with respect to the Specially
Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the
Trustee and the Certificateholders, claims under each related insurance policy
maintained pursuant to this Section 3.08(a) in a timely fashion in accordance
with the terms of such policy and to take such reasonable steps as are necessary
to receive payment or to permit recovery thereunder.
All insurance policies required hereunder shall name the Trustee
or the Servicer or the Special Servicer, on behalf of the Trustee as the
mortgagee, as loss payee.
(b) (I) If the Servicer or the Special Servicer, as applicable, obtains
and maintains a blanket or mortgage impairment insurance policy insuring against
fire and hazard losses on all of the Mortgaged Properties (other than REO
Properties) as to which the related Borrower has not maintained insurance
required by the related Mortgage Loan or on all of the REO Properties, as the
case may be, it shall conclusively be deemed to have satisfied its respective
obligations concerning the maintenance of insurance coverage set forth in
Section 3.08(a). Any such blanket insurance policy shall be maintained with a
Qualified Insurer. A blanket insurance policy may contain a deductible clause,
in which case the Servicer or the Special Servicer, as applicable, shall, in the
event that (i) there shall not have been maintained on the related Mortgaged
Property a policy otherwise complying with the provisions of Section 3.08(a),
and (ii) there shall have been one or more losses that would have been covered
by such a policy had it been maintained, immediately deposit into the Collection
Account from its own funds the amount not otherwise payable under the blanket
policy because of such deductible clause to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Mortgage Loan,
or, in the absence of any such deductible limitation, the deductible limitation
that is consistent with the Servicing Standard. In connection with its
activities as Servicer or the Special Servicer hereunder, as applicable, the
Servicer or the Special Servicer, respectively, agrees to prepare and present,
on behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy which it maintains in a timely fashion in accordance with the
terms of such policy and to take such reasonable steps as are necessary to
receive payment or permit recovery thereunder.
(II) If the Servicer or the Special Servicer, as applicable, causes any
Mortgaged Property or REO Property to be covered by a master force placed
insurance policy, such policy shall be issued by a Qualified Insurer and provide
no less coverage in scope and amount for such Mortgaged Property or REO Property
than the insurance required to be maintained pursuant to Section 3.08(a) in
which case the Servicer or Special Servicer shall conclusively be deemed to have
satisfied its respective obligations to maintain insurance pursuant to Section
3.08(a). Such policy may contain a deductible clause, in which case the Servicer
or the Special Servicer, as applicable, shall, in the event that (i) there shall
not have been
88
maintained on the related Mortgaged Property or REO Property a policy otherwise
complying with the provisions of Section 3.08(a), and (ii) there shall have been
one or more losses that would have been covered by such a policy had it been
maintained, immediately deposit into the Collection Account from its own funds
the amount not otherwise payable under such policy because of such deductible to
the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, or, in the absence of any such
deductible limitation, the deductible limitation that is consistent with the
Servicing Standard.
(c) The Servicer and the Special Servicer shall maintain a fidelity
bond in the form and amount that would meet the servicing requirements of
prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer and the Special Servicer each shall be
deemed to have complied with this provision if one of its respective Affiliates
has such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Servicer and the Special Servicer,
as applicable. In addition, the Servicer and the Special Servicer shall keep in
force during the term of this Agreement a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its obligations to service the Mortgage Loans
hereunder in the form and amount that would meet the servicing requirements of
prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer shall cause each and every
sub-servicer for it to maintain, or cause to be maintained by any agent or
contractor servicing any Mortgage Loan on behalf of such sub-servicer, a
fidelity bond and an errors and omissions insurance policy that satisfy the
requirements for the fidelity bond and the errors and omissions policy to be
maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds
and policies of errors and omissions insurance obtained under this Section
3.08(c) shall be issued by a Qualified Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property,
or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the related mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer or Special Servicer, as applicable, on behalf of the Trust Fund shall
not be required to enforce such due-on-sale clause and in connection therewith
shall not be required to (x) accelerate payments thereon or (y) withhold its
consent to such an assumption if (x) such provision is not exercisable under
applicable law or such exercise is reasonably likely to result in meritorious
legal action by the Borrower or (y) the Servicer or Special Servicer, as
applicable, determines, in accordance with
89
the Servicing Standard, that granting such consent would be likely to result in
a greater recovery, on a present value basis (discounting at the related
Mortgage Rate) than would enforcement of such clause. If the Servicer or Special
Servicer, as applicable, determines that granting of such consent would likely
result in a greater recovery or such provision is not legally enforceable, the
Servicer or Special Servicer, as applicable, is authorized to take or enter into
an assumption agreement from or with the Person to whom the related Mortgaged
Property has been or is about to be conveyed, and to release the original
Borrower from liability upon the Mortgage Loan and substitute the new Borrower
as obligor thereon, provided, that (a) the credit status of the prospective new
Borrower is in compliance with the Servicer's or Special Servicer's regular
commercial mortgage origination or servicing standards and criteria (as
evidenced in writing by the Servicer or Special Servicer) and the terms of the
related Mortgage and (b)(i) as to any Mortgage Loan that represents more than 5%
of the then-current aggregate Stated Principal Balance of the Mortgage Loans
(taking into account for the purposes of this calculation (A) 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 Borrower or its Affiliate is a Borrower
with respect to one or more other Mortgage Loans, such other Mortgage Loans),
the Servicer or, with respect to Specially Serviced Mortgage Loans, the Special
Servicer, has received written confirmation from ▇▇▇▇▇'▇ and Fitch, and (ii) as
to any Mortgage Loan that is one of the ten largest Mortgage Loans in the Trust
Fund (based on its then unpaid principal balance), the Servicer or, with respect
to Specially Serviced Mortgage Loans, the Special Servicer, has received written
confirmation from Fitch, that such assumption or substitution would not, in and
of itself, cause a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates; provided, however, that if the Stated
Principal Balance of such Mortgage Loan is less than the lesser of (x) 5% of the
aggregate Stated Principal Balances of the Mortgage Loans and (y) $30,000,000,
such written confirmation shall not be required from ▇▇▇▇▇'▇. In connection with
each such assumption or substitution entered into by the Special Servicer, the
Special Servicer shall give prior notice thereof to the Servicer. The Servicer
or Special Servicer, as applicable, shall notify the Trustee that any such
assumption or substitution agreement has been completed by forwarding to the
Trustee (with a copy to the Servicer, if applicable) the original copy of such
agreement, which copies shall be added to the related Mortgage File and shall,
for all purposes, be considered a part of such Mortgage File to the same extent
as all other documents and instruments constituting a part thereof. The Special
Servicer shall have the right to consent (which consent shall not be
unreasonably withheld) to any assumption of a Mortgage Loan that is not a
Specially Serviced Mortgage Loan. If the Special Servicer shall fail to either
consent or deny its consent to any assumption of a Mortgage Loan proposed by the
Servicer within five Business Days of such proposal, then the assumption shall
be deemed to be approved.
(b) If any Mortgage Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of
any lien or other encumbrance on the related Mortgaged Property,
or
90
(ii) requires the consent of the related mortgagee to the creation of
any such lien or other encumbrance on the related Mortgaged
Property,
then the Servicer or Special Servicer, as applicable, on behalf of the Trust
Fund, shall not be required to enforce such due-on-encumbrance clause and in
connection therewith will not be required to (i) accelerate the payments on the
related Mortgage Loan or (ii) withhold its consent to such lien or encumbrance,
if the Servicer or Special Servicer, as applicable, (x) determines, in
accordance with the Servicing Standard, that such consent would be in the best
interests of the Trust Fund and (y)(I) as to any Mortgage Loan that represents
more than 5% of the then-current aggregate Stated Principal Balance of the
Mortgage Loans, receives prior written confirmation from ▇▇▇▇▇'▇ and Fitch, and
(II) as to any Mortgage Loan that is one of the ten largest Mortgage Loans in
the Trust Fund (based on its then unpaid principal balance), the Servicer or,
with respect to Specially Serviced Mortgage Loans, the Special Servicer, has
received written confirmation from Fitch, that granting such consent would not,
in and of itself, cause a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates. The Special Servicer shall
have the right to consent to any waiver of a due-on-encumbrance clause with
respect to any Mortgage Loan that is not a Specially Serviced Mortgage Loan.
(c) Nothing in this Section 3.09 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any
action pursuant to this Section 3.09, neither the Servicer nor the Special
Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or the related
Note, other than pursuant to Section 3.30.
(e) With respect to any Mortgage Loan which permits release of
Mortgaged Properties through defeasance:
(i) If such Mortgage Loan requires that the Servicer on behalf of
the Trustee purchase the required U.S. government obligations,
then the Servicer shall purchase such obligations in accordance
with the terms of such Mortgage Loan; provided, that the
Servicer shall not accept the amounts paid by the related
Borrower to effect defeasance until acceptable U.S. government
obligations have been identified.
(ii) If such Mortgage Loan permits the assumption of the obligations
of the related Borrower by a successor mortgagor, then prior to
permitting such assumption and to the extent not inconsistent
with such Mortgage Loan, the Servicer shall obtain written
confirmation from each Rating Agency that such assumption would
not, in and of itself, cause a downgrade,
91
qualification or withdrawal of the then-current ratings assigned
to the Certificates.
(iii) To the extent not inconsistent with such Mortgage Loan, the
Servicer shall require an Opinion of Counsel to the related
Borrower (which shall be an expense of the related Borrower) to
the effect that the Trustee has a first priority security
interest in the defeasance deposit and the U.S. government
obligations and the assignment thereof is valid and enforceable;
such opinion, together with any other certificates or documents
to be required in connection with such defeasance shall be in
form and substance acceptable to each Rating Agency.
(iv) To the extent not inconsistent with the Mortgage Loan, the
Servicer shall require a certificate at the related Borrower's
expense from an Independent certified public accountant
certifying that the U.S. government obligations comply with the
requirements of the related Loan Agreement or Mortgage.
(v) Prior to permitting release of any Mortgaged Properties to the
extent not inconsistent with the related Mortgage Loan, the
Servicer shall obtain written confirmation from each Rating
Agency that such release would not, in and of itself, result in
a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates.
(vi) Prior to permitting release of any Mortgaged Property, if the
related Mortgage Loan so requires and provides for the related
Borrower to pay the cost thereof, the Servicer shall require an
Opinion of Counsel of the related Borrower to the effect that
such release will not cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or Lower-Tier REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding or cause
a tax to be imposed on the Trust Fund under the REMIC
Provisions.
(vii) No defeasance shall occur prior to the second anniversary of the
Startup Day.
(viii) The Trustee shall at the expense of the Borrower (to the extent
permitted by the related Loan Documents) hold the U.S.
government obligations for the benefit of the
Certificateholders, and make payments of principal and interest
received on the government obligations to the Collection Account
in respect of the defeased Mortgage Loan according to the
payment schedule existing immediately prior to the defeasance.
(f) If the Mortgagee under a Mortgage Loan has the option, upon notice
that the Borrower intends to prepay the Mortgage Loan, to either require the
payment of a Yield
92
Maintenance Premium or the defeasance of the Mortgage Loan, the Master Servicer
is hereby directed to elect defeasance.
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans.
(a) Contemporaneously with the earliest of (i) the effective date of
any (A) modification of a Mortgage Rate, principal balance or amortization terms
of any Mortgage Loan, or any other term of a Mortgage Loan, (B) extension of the
Maturity Date of a Mortgage Loan as described below in Section 3.30, or (C)
consent to the release of any Mortgaged Property from the lien of the related
Mortgage other than pursuant to the terms of the related Mortgage Loan, (ii) the
occurrence of any Appraisal Reduction Event, (iii) a default in the payment of a
Balloon Payment, or (iv) the date on which the Special Servicer, consistent with
the Servicing Standard, requests that an Updated Appraisal be obtained, the
Servicer (after consultation with the Special Servicer) shall obtain an Updated
Appraisal; provided, however, that the Servicer shall not be required to obtain
an Updated Appraisal pursuant to clauses (i) through (iv) above with respect to
any Mortgaged Property for which there exists an appraisal which is less than
twelve months old. The Servicer shall obtain letter updates to each Updated
Appraisal annually and prior to the Special Servicer granting extensions beyond
one year or any subsequent extension after granting a one year extension with
respect to the same Mortgage Loan. For so long as any Mortgage Loan for which an
Updated Appraisal has been obtained is included in the Trust Fund, the Servicer
shall obtain a new Updated Appraisal with respect to an Updated Appraisal which
is more than two years old. The Servicer shall send all such letter updates and
Updated Appraisals to the Rating Agencies.
(b) The Special Servicer shall monitor such Specially Serviced Mortgage
Loan, evaluate whether the causes of the default 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 Borrower
if, in the Special Servicer's judgment, cure is likely, and take such other
actions (including without limitation, negotiating and accepting a discounted
payoff of a Mortgage Loan) as are consistent with the Servicing Standard. If, in
the Special Servicer's judgment, such corrective action has been unsuccessful,
no satisfactory arrangement can be made for collection of delinquent payments,
and the Specially Serviced Mortgage Loan has not been released from the Trust
Fund pursuant to any provision hereof, and except as otherwise specifically
provided in Section 3.09(a) and (b), the Special Servicer may, to the extent
consistent with the Asset Status Report and with the Servicing Standard,
accelerate such Specially Serviced Mortgage Loan and commence a foreclosure or
other acquisition with respect to the related Mortgaged Property or Properties,
provided, that the Special Servicer determines that such acceleration and
foreclosure are more likely to produce a greater recovery to Certificateholders
on a present value basis (discounting at the related Mortgage Rate) than would a
waiver of such default or an extension or modification in accordance with the
provisions of Section 3.30 hereof, provided further that the Special Servicer
shall consult with the Automobile Adviser pursuant to Section 3.31(a) before
taking any such action with respect to Automobile Loans. The Special Servicer
shall pay the costs and expenses in any such proceedings as an Advance unless
the Special Servicer determines, in its good faith judgment, that such Advance
would constitute a Nonrecoverable Advance. If the Special Servicer does not make
such Advance
93
in violation of the immediately preceding sentence, the Servicer shall make such
Advance, unless the Servicer determines, in its good faith judgment, that such
Advance would constitute a Nonrecoverable Advance. The Special Servicer or the
Servicer as applicable, shall be entitled to reimbursement of Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence to the
extent permitted by Section 3.06(ii), (iii) and (vii).
(c) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state where the Mortgaged
Property is located, the Special Servicer shall not be required to pursue a
deficiency judgment against the related Borrower or any other liable party if
the laws of the state do not permit such a deficiency judgment after a
non-judicial foreclosure or if the Special Servicer determines, in its best
judgment, that the likely recovery if a deficiency judgment is obtained will not
be sufficient to warrant the cost, time, expense and/or exposure of pursuing the
deficiency judgment and such determination is evidenced by an Officers'
Certificate delivered to the Trustee.
(d) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee (which shall not include the
Special Servicer) or a separate trustee or co-trustee on behalf of the Trustee
as holder of the Lower-Tier Regular Interests and the Middle-Tier Regular
Interests, and Certificateholders. Notwithstanding any such acquisition of title
and cancellation of the related Mortgage Loan, such Mortgage Loan shall (except
for purposes of Section 9.01) be considered to be an REO Mortgage Loan held in
the Trust Fund until such time as the related REO Property shall be sold by the
Trust Fund and shall be reduced only by collections net of expenses. Consistent
with the foregoing, for purposes of all calculations hereunder, so long as such
Mortgage Loan shall be considered to be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such
Note and, for purposes of determining the Stated Principal
Balance thereof, the related amortization schedule in effect at
the time of any such acquisition of title shall remain in
effect; and
(ii) subject to Section 1.02(b), Net REO Proceeds received in any
month shall be applied to amounts that would have been payable
under the related Note in accordance with the terms of such
Note. In the absence of such terms, Net REO Proceeds shall be
deemed to have been received first in payment of the accrued
interest (not including Excess Interest) that remained unpaid on
the date that the related REO Property was acquired by the Trust
Fund; second in respect of the delinquent principal installments
that remained unpaid on such date; and thereafter, Net REO
Proceeds received in any month shall be applied to the payment
of installments of principal and accrued interest on such
Mortgage Loan deemed to be due and payable in accordance with
the terms of such Note and such amortization schedule until such
principal has been paid in full and then to Excess Interest and
other amounts due under such Mortgage
94
Loan. If such Net REO Proceeds exceed the Monthly Payment then
payable, the excess shall be treated as a Principal Prepayment
received in respect of such Mortgage Loan.
(e) Notwithstanding any provision herein to the contrary, the Special
Servicer shall not acquire for the benefit of the Trust Fund any personal
property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(l) of the Code) so acquired by the
Special Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an
Opinion of Counsel (which opinion shall be an expense of the
Lower-Tier REMIC) to the effect that the holding of such
personal property by the Lower-Tier REMIC will not cause the
imposition of a tax on the Lower-Tier REMIC, the Middle-Tier
REMIC or Upper-Tier REMIC under the REMIC Provisions or cause
the Lower-Tier REMIC, the Middle-Tier REMIC or Upper-Tier REMIC
to fail to qualify as a REMIC at any time that any Certificate
is outstanding.
(f) Notwithstanding any provision to the contrary in this Agreement,
the Special Servicer shall not, on behalf of the Trust Fund, obtain title to any
direct or indirect partnership interest or other equity interest in any Borrower
pledged pursuant to any pledge agreement unless the Special Servicer shall have
requested and received an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund) to the effect that the holding of such partnership interest
or other equity interest by the Trust Fund will not cause the imposition of a
tax on the Lower-Tier REMIC, the Middle-Tier REMIC or Upper-Tier REMIC under the
REMIC Provisions or cause the Lower-Tier REMIC, the Middle-Tier REMIC or
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Certificate
is outstanding.
(g) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or the Certificateholders,
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an updated environmental assessment report prepared by an Independent
Person who regularly conducts environmental audits, that:
95
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an environmental
consultant, that it would be in the best economic interest of the Trust Fund
to take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any currently effective federal, state
or local law or regulation, or that, if any such Hazardous Materials are
present for which such action could be required, after consultation with an
environmental consultant, it would be in the best economic interest of the
Trust Fund to take such actions with respect to the affected Mortgaged
Property.
In the event that the environmental assessment first obtained by the
Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders. Any such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of this Section 3.10.
(h) The environmental assessment contemplated by Section 3.10(g) shall
be prepared within three months (or as soon thereafter as practicable) of the
determination that such assessment is required by any Independent Person who
regularly conducts environmental audits for purchasers of commercial property
where the Mortgaged Property is located, as determined by the Special Servicer
in a manner consistent with the Servicing Standard. The Servicer shall advance
the cost of preparation of such environmental assessments unless the Servicer
determines, in its good faith judgment, that such Advance would be a
Nonrecoverable Advance. The Servicer shall be entitled to reimbursement of
Advances (with interest at the Advance Rate) made pursuant to the preceding
sentence in the manner set forth in Section 3.06.
(i) If the Special Servicer determines pursuant to Section 3.10(g)(i)
that a Mortgaged Property is not in compliance with applicable environmental
laws but that it is in the best economic interest of the Trust Fund to take such
actions as are necessary to bring such Mortgaged Property in compliance
therewith, or if the Special Servicer determines pursuant to Section 3.10(g)(ii)
that the circumstances referred to therein relating to Hazardous Materials are
present but that it is in the best economic interest of the Trust Fund to take
such action with respect to the containment, clean-up or remediation of
Hazardous Materials affecting such Mortgaged Property as is required by law or
regulation, the Special Servicer shall take such action as it deems to be in the
best economic interest of the Trust Fund, but only if the Trustee has mailed
notice to the Holders of the Regular Certificates of such proposed action, which
notice shall be prepared by the Special Servicer, and only if the Trustee does
not receive, within 30 days of such notification, instructions from the Holders
of greater than 50% of the aggregate Voting Rights of such Classes directing the
Special Servicer not to take such action.
96
Notwithstanding the foregoing, if the Special Servicer reasonably determines
that it is likely that within such 30-day period irreparable environmental harm
to such Mortgage Property would result from the presence of such Hazardous
Materials and provides a prior written statement to the Trustee setting forth
the basis for such determination, then the Special Servicer may take such action
to remedy such condition as may be consistent with the Servicing Standard. None
of the Trustee, the Servicer or the Special Servicer shall be obligated to take
any action or not take any action pursuant to this Section 3.10(i) at the
direction of the Certificateholders unless the Certificateholders agree to
indemnify the Trustee, the Servicer and the Special Servicer with respect to
such action or inaction. The Special Servicer shall advance the cost of any such
compliance, containment, clean-up or remediation unless the Special Servicer
determines, in its good faith judgment, that such Advance would constitute a
Nonrecoverable Advance.
(j) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed or
regarding any cancellation of indebtedness with respect to any Mortgage Loan.
The Special Servicer shall deliver a copy of any such report to the Trustee and
to the Servicer.
(k) The costs of any Updated Appraisal obtained pursuant to this
Section 3.10 shall be paid by the Servicer as an Advance and shall be
reimbursable from the Collection Account.
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Servicer shall immediately notify the Trustee
or the Custodian by a certification (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.05 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File.
Any expense incurred in connection with any instrument of satisfaction or deed
of reconveyance that is not paid by the related Borrower shall be chargeable to
the Trust Fund. The Servicer agrees to enforce any provision in the Mortgage
Loan documents that require the Borrower to pay such amounts.
From time to time upon request of the Servicer or Special Servicer and
delivery to the Trustee and the Custodian of a Request for Release, the Trustee
shall promptly cause the Custodian to release the Mortgage File (or any portion
thereof) designated in such Request for Release to the Servicer or Special
Servicer, as applicable. Upon return of the foregoing to the Custodian, or in
the event of a liquidation or conversion of the Mortgage Loan into an REO
Property, or in the event of a substitution of a Mortgage Loan pursuant to
Section 2.03, receipt by the Trustee of a certificate of a Servicing Officer
stating that such Mortgage Loan was liquidated and that all amounts received or
to be received in connection with such liquidation which are required to be
deposited into the Collection Account or Distribution Account have been so
deposited, or that such Mortgage Loan has become an REO Property, or that the
Servicer has
97
received a Qualifying Substitute Mortgage Loan and the applicable Substitution
Shortfall Amount, the Custodian shall deliver a copy of the Request for Release
to the Servicer or Special Servicer, as applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation.
(a) As compensation for its activities hereunder, the Servicer shall be
entitled with respect to each Mortgage Loan to the Servicing Fee, which shall be
payable from amounts on deposit in the Collection Account as set forth in
Section 3.06(iv). The Servicer's rights to the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Servicer's responsibilities and obligations under this Agreement. In
addition, the Servicer shall be entitled to receive, as additional Servicing
Compensation, to the extent permitted by applicable law and the related Mortgage
Loans, any late payment charges, loan service transaction fees, demand fees,
beneficiary statement charges or similar items and all Assumption Fees, loan
modification fees and extension fees (but not including any Prepayment
Premiums), in each case to the extent received and not required to be deposited
or retained in the Collection Account pursuant to Section 3.05; provided,
however, that the Servicer shall not be entitled to apply or retain any amounts
as additional compensation, any late payment charges with respect to any
Mortgage Loan with respect to which a default or event of default thereunder has
occurred and is continuing unless and until such default or event of default has
been cured and all delinquent amounts (including any Default Interest) due with
respect to such Mortgage Loan have been paid. The Servicer shall also be
entitled pursuant to, and to the extent provided in, Sections 3.06(iv) and
3.07(b) to withdraw from the Collection Account and to receive from the Interest
Reserve Account and any Borrower Accounts (to the extent not payable to the
related Borrower under the Mortgage Loan or applicable law), Net Prepayment
Interest Excess, if any, and any interest or other income earned on deposits
therein. Notwithstanding the foregoing, the aggregate Master Servicing Fee
attributable to the Mortgage Loans and investment income earned on any Principal
Prepayments during the related Collection Period and due to the Servicer on any
Distribution Date shall be reduced by the amount of any Net Prepayment Interest
Shortfalls.
98
As compensation for its activities hereunder on each Distribution
Date, the Trustee shall be entitled with respect to each Mortgage Loan to the
Trustee Fee, which shall be payable from amounts on deposit in the Collection
Account as set forth in Section 3.06(v). The Trustee shall pay the routine fees
and expenses of the Certificate Registrar, the Paying Agent, the Custodian and
the Authenticating Agent. The Trustee's rights to the Trustee Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Trustee's responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder,
including all fees of any sub-servicers retained by it. Except as otherwise
provided herein, the Trustee shall pay all expenses incurred by it in connection
with its activities hereunder.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled with respect to each Specially Serviced Mortgage Loan
and REO Mortgage Loan to the Special Servicing Compensation, which shall be
payable from amounts on deposit in the Collection Account as set forth in
Section 3.06(iv). The Special Servicer's rights to the Special Servicing Fee may
not be transferred in whole or in part except in connection with the transfer of
all of the Special Servicer's responsibilities and obligations under this
Agreement. In addition, the Special Servicer shall be entitled to receive, as
Special Servicing Compensation, (i) to the extent permitted by applicable law
and the related Loan Documents, any late payment charges, Assumption Fees, loan
modification fees, extension fees, loan service transaction fees, demand fees,
beneficiary statement charges and other similar fees relating to any Specially
Serviced Mortgage Loan or REO Mortgage Loan, and (ii) any interest or other
income earned on deposits in the REO Accounts.
Except as otherwise provided herein, the Special Servicer shall
pay all expenses incurred by it in connection with its servicing activities
hereunder.
(c) In addition, a Workout Fee will be payable to the Special
Servicer with respect to each Mortgage Loan that ceases to be a Specially
Serviced Mortgage Loan pursuant to the definition thereof. As to each such
Mortgage Loan, the Workout Fee will be payable out of each collection of
interest and principal (including scheduled payments, prepayments, Balloon
Payments and payments at maturity) received on such Mortgage Loan for so long as
it remains a Corrected Mortgage Loan. The Workout Fee with respect to any such
Mortgage Loan will cease to be payable if such loan again becomes a Specially
Serviced Mortgage Loan 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 ceases to be a Specially Serviced Mortgage Loan. If the
Special Servicer is terminated (other than for cause) or resigns with respect to
any or all of its servicing duties, it shall retain the right to receive any and
all Workout Fees payable with respect to Mortgage Loans that cease to be
Specially Serviced Mortgage Loans during the period that it had responsibility
for servicing Specially Serviced Mortgage Loans and that had ceased being
Specially Serviced Mortgage Loans at the time of such termination or resignation
(and the successor Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such loan ceases to be
payable in accordance with the preceding sentence.
99
A Liquidation Fee will be payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan as to which the Special
Servicer obtains a full or discounted payoff from the related Borrower and,
except as otherwise described below, with respect to any Specially Serviced
Mortgage Loan or REO Property as to which the Special Servicer recovered any
Liquidation Proceeds. As to each such Specially Serviced Mortgage Loan and REO
Property, the Liquidation Fee will be payable from the related payment or
proceeds. Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the purchase of any Specially Serviced Mortgage Loan
or REO Property by the Servicer, the Special Servicer, the Mortgage Loan Seller
or any holder of Certificates evidencing a majority interest in the Controlling
Class or the purchase of all of the Mortgage Loans and REO Properties by the
Servicer or the Depositor in connection with the termination of the Trust Fund.
If however, Liquidation Proceeds are received with respect to any
Specially Serviced Mortgage Loan to which the Special Servicer is properly
entitled to a Workout Fee, such Workout Fee will be payable based on and out of
the portion of such Liquidation Proceeds that constitute principal and/or
interest.
(d) [Intentionally Left Blank].
(e) The Servicer, Special Servicer and Trustee shall be
entitled to reimbursement from the Trust Fund for the costs and expenses
incurred by them in the performance of their duties under this Agreement which
are "unanticipated expenses incurred by the REMIC" within the meaning of
Treasury Regulations Section 1.860G-l(b)(3)(iii). Such expenses shall include,
by way of example and not by way of limitation, environmental assessments,
Updated Appraisals and appraisals in connection with foreclosure, the fees and
expenses of any administrative or judicial proceeding and expenses expressly
identified as reimbursable in Section 3.06(vii).
(f) No provision of this Agreement or of the Certificates
shall require the Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to expend or risk their own funds or otherwise incur any financial
liability in the performance of any of their duties hereunder or thereunder, or
in the exercise of any of their rights or powers, if, in the good faith business
judgment of the Servicer, Special Servicer, Trustee or Fiscal Agent, as the case
may be, repayment of such funds would not be ultimately recoverable from late
payments, Net Insurance Proceeds, Net Liquidation Proceeds and other collections
on or in respect of the Mortgage Loans, or from adequate indemnity from other
assets comprising the Trust Fund against such risk or liability.
If the Servicer, the Special Servicer or the Trustee receives a
request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Servicer's, the Special Servicer's or the
Trustee's good faith business judgment require the assistance of Independent
legal counsel or other consultant to the Servicer, the Special Servicer or the
Trustee, the cost of which would not be an expense of the Trust Fund hereunder,
then the Servicer, the Special Servicer or the Trustee, as the case may be,
shall not be required to take any action in response to such request or inquiry
unless the Borrower or such Certificateholder or
100
such other Person, as applicable, makes arrangements for the payment of the
Servicer's, the Special Servicer's or the Trustee's expenses associated with
such counsel (including, without limitation, posting an advance payment for such
expenses) satisfactory to the Servicer, the Special Servicer or the Trustee, as
the case may be, in its sole discretion. Unless such arrangements have been
made, the Servicer, the Special Servicer or the Trustee, as the case may be,
shall have no liability to any Person for the failure to respond to such request
or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account
Statements.
(a) The Servicer shall deliver to the Trustee, the Automobile
Adviser and the Special Servicer, no later than 3:00 p.m. Central time two
Business Days prior to the Servicer Remittance Date prior to each Distribution
Date, the Servicer Remittance Report with respect to the related Distribution
Date (which shall include, without limitation, the amount of Available Funds for
such related Collection Period) including a written statement of anticipated P&I
Advances for the related Distribution Date. The Servicer's responsibilities
under this Section 3.13(a) with respect to REO Loans shall be subject to the
satisfaction of the Special Servicer's obligations under Section 3.26. The
Servicer shall by 11:00 a.m. Central time deliver to the Trustee on the Servicer
Remittance Date information on the available funds received after the
Determination Date from the subservicer in a file format agreeable to the
Trustee and the Servicer.
(b) For so long as the Servicer makes deposits into and
withdrawals from the Collection Account, not later than fifteen days after each
Distribution Date, the Servicer shall forward to the Trustee and the Fiscal
Agent a statement prepared by the Servicer setting forth the status of the
Collection Account as of the close of business on the last Business Day of the
related month and showing the aggregate amount of deposits into and withdrawals
from the Collection Account of each category of deposit specified in Section
3.05 and each category of withdrawal specified in Section 3.06 for the related
Collection Period. The Trustee and its agents and attorneys may at any time
during normal business hours, upon reasonable notice, inspect and copy the
books, records and accounts of the Servicer solely relating to the Mortgage
Loans and the performance of its duties hereunder.
(c) Beginning in May 1999, no later than 12:00 noon Central
time on each Servicer Remittance Date, the Servicer shall deliver or cause to be
delivered to the Trustee and the Automobile Adviser the following reports with
respect to the Mortgage Loans (and, if applicable, the related REO Properties),
providing the required information as of the immediately preceding 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 and/or data
files. 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
Servicer at least four Business Days prior to the related Servicer Remittance
Date in the form required by Section 3.13(f) or shall be provided by means of
such reports so delivered by the Special Servicer to the Servicer in the form so
required. In the absence of manifest error, the
101
Servicer shall be entitled to conclusively rely upon, without investigation or
inquiry, the information and reports delivered to it by the Special Servicer,
and the Trustee shall be entitled to conclusively rely upon the Servicer's
reports and the Special Servicer's reports without any duty or obligation to
recompute, verify or recalculate any of the amounts and other information stated
therein.
(d) The Servicer shall deliver or cause to be delivered to the
Trustee and the Automobile Adviser the following materials, in each case to the
extent that such materials or the information on which they are based have been
received by the Servicer:
(i) At least annually by May 31st, beginning in 1999, with
respect to each Mortgage Loan and REO Mortgage Loan (to the extent
prepared by and received from the Special Servicer in the case of any
Specially Serviced Mortgage Loan or 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
Borrower is required by the Mortgage to deliver, or otherwise agrees to
provide such information and, with respect to operating statements and
rent rolls for Specially Serviced Mortgage Loans and REO Properties,
only to the extent requested by the Special Servicer) for the related
Mortgaged Property or REO Property as of the end of the preceding
calendar year. The Servicer shall use its best reasonable efforts to
obtain said annual operating statements and rent rolls with respect to
each of the Mortgage Loans other than Specially Serviced Mortgage Loans
or REO Mortgage Loans, which efforts shall include a letter sent to the
related Borrower (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.
(ii) Within thirty days after receipt by the Servicer (or
the Special Servicer in the case of a Specially Serviced Mortgage Loan
or REO Property) of any annual operating statements with respect to any
Mortgaged Property or REO Property (to the extent prepared by and
received from the Special Servicer in the case of any Specially Serviced
Mortgage Loan or REO Property), an Operating Statement Analysis
Worksheet for such Mortgaged Property (with the annual operating
statements attached thereto as an exhibit).
The Servicer shall maintain one Operating Statement Analysis
report for each Mortgaged Property and REO Property (to the extent prepared by
and received from the Special Servicer in the case of any REO Property or any
Mortgaged Property constituting security for a Specially Serviced Mortgage
Loan). The Operating Statement Analysis report for each Mortgaged Property
(other than any such Mortgaged Property which is REO Property or constitutes
security for a Specially Serviced Mortgage Loan) is to be updated by the
Servicer and such updated report delivered to the Trustee within thirty days
after receipt by the Servicer of updated operating statements for such Mortgaged
Property. The Servicer will use the "Normalized" column from the Operating
Statement Analysis Worksheet to update the Operating Statement Analysis report
and will use any operating statements received with respect to any
102
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.
The Special Servicer will be required pursuant to Section 3.13(g)
to deliver to the Servicer the information required pursuant to this Section
3.13(d) with respect to Specially Serviced Mortgage Loans and REO Mortgage Loans
on or before May 10th of each year, commencing on May 10, 1999, and within ten
days after its receipt of any operating statement for any related Mortgaged
Property or REO Property.
(e) No later than 12:00 noon Central time on the Servicer
Remittance Date, beginning in May, 1999, the Servicer shall prepare and deliver
to the Trustee, the Automobile Adviser (with respect to Automobile Loans) and
the Special Servicer, a Watch List of all Mortgage Loans that the Servicer has
determined are in jeopardy of becoming Specially Serviced Mortgage Loans. For
this purpose, Mortgage Loans that are in jeopardy of becoming Specially Serviced
Mortgage Loans shall include, without limitation: (i) Mortgage Loans having a
current Debt Service Coverage Ratio that is 80% or less of the Debt Service
Coverage Ratio as of the Cut-off Date or having a current Debt Service Coverage
Ratio that is less than l.00x, (ii) Mortgage Loans as to which any required
inspection of the related Mortgaged Property conducted by the Servicer indicates
a problem that the Servicer determines can reasonably be expected to materially
and adversely affect the cash flow generated by such Mortgaged Property, (iii)
Mortgage Loans which have come to the Servicer's attention in the performance of
its duties under this Agreement (without any expansion of such duties by reason
hereof) that (A) any tenant occupying 25% or more of the space in the related
Mortgaged Property has vacated (without being replaced by a comparable tenant
and lease) or been the subject of bankruptcy or similar proceedings or (B)
relate to a Borrower or an affiliate that is the subject of a bankruptcy or
similar proceeding, (iv) Mortgage Loans that are at least 30 days delinquent in
payment, and (v) Mortgage Loans that are within 60 days of maturity.
The Special Servicer shall report to the Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Servicer and the Special Servicer shall provide to each other and to the
Trustee written notice of any event that comes to their knowledge with respect
to a Mortgage Loan or REO Property that the Servicer or the Special Servicer,
respectively, determines, in accordance with Servicing Standards, would have a
material adverse effect on such Mortgage Loan or REO Property, which notice
shall include an explanation as to the reason for such material adverse effect.
(f) At least four Business Days prior to each Servicer
Remittance Date, the Special Servicer shall deliver, or cause to be delivered,
to the Servicer and, upon the request of any of the Trustee, the Automobile
Adviser, the Depositor, the Controlling Class or any 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 Determination Date (or, upon the reasonable
request of the Servicer, data files in a form acceptable to the Servicer): (i) a
Delinquent Loan Status Report; (ii) an Historical
103
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) a Watch List. Such reports or data
shall be presented in writing and on a computer readable magnetic medium or
other electronic format acceptable to the Servicer.
(g) The Special Servicer shall deliver or cause to be
delivered to the Servicer and, upon the request of any of the Trustee, the
Automobile Adviser, the Depositor, the Controlling Class 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 May 10 of each year, commencing
with May 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 to obtain said annual operating statements and rent
rolls with respect to each Mortgaged Property constituting security for
a Specially Serviced Mortgage Loan and each REO Property, which efforts
shall include a letter sent to the related Borrower 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 Operating
Statement Analysis Worksheet for such Mortgaged Property or REO Property
(with the annual operating statements attached thereto as an exhibit);
provided, however, that, upon consent of the Servicer, the Special
Servicer may instead provide data files in a form acceptable to the
Mortgage Loan Seller.
The Special Servicer shall maintain one Operating Statement
Analysis report for each Mortgaged Property securing a Specially Serviced
Mortgage Loan and REO Property. The Operating Statement Analysis report for each
Mortgaged Property which constitutes security for a Specially Serviced Mortgage
Loan or is a REO Property is to be updated by the Special Servicer and such
updated report delivered to the Servicer within ten days after receipt by the
Special Servicer of updated operating statements for each such Mortgaged
Property; provided, however, that, upon consent of the Servicer, the Special
Servicer may instead provide data files in a form acceptable to the Servicer.
The Special Servicer shall provide each such report to the Servicer in the then
applicable CSSA format. The Special Servicer will use the "Normalized" column
from the Operating Statement Analysis Worksheet to update the Operating
Statement Analysis report and will use any operating statements received with
respect to any Mortgaged Property which constitutes security for a Specially
Serviced Mortgage Loan or is a REO Property to update the Operating Statement
Analysis report for such Mortgaged Property.
104
(h) The Trustee shall be entitled to rely conclusively on and
shall not be responsible for the content or accuracy of any information provided
to it by the Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
The Servicer and the Special Servicer (the "reporting person")
each shall deliver to the Trustee, the Depositor and to the Rating Agencies on
or before April 15 of each year, beginning with April 15, 2000, an Officers'
Certificate stating, as to each signatory thereof, (i) that a review of the
activities of the reporting person during the preceding calendar year (or such
shorter period from the Closing Date to the end of the related calendar year)
and of its performance under this Agreement has been made under such officer's
supervision, (ii) that, to the best of such officer's knowledge, based on such
review, the reporting person has fulfilled all of its obligations under this
Agreement throughout such year (or such shorter period), or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer, the nature and status thereof and what action it proposes
to take with respect thereto, (iii) that, to the best of such officer's
knowledge, each related sub-servicer has fulfilled its obligations under its
sub-servicing agreement in all material respects, or, if there has been a
material default in the fulfillment of such obligations, specifying each such
default known to such officer and the nature and status thereof, and (iv)
whether it has received any notice regarding qualification, or challenging the
status, of the Upper-Tier REMIC, the Middle-Tier REMIC or Lower-Tier REMIC as a
REMIC or of the Grantor Trust as a grantor trust from the IRS or any other
governmental agency or body.
SECTION 3.15. Annual Independent Public Accountants'
Servicing Report.
On or before April 15 of each year, beginning with April 15,
2000, the Servicer and the Special Servicer (the "reporting person") each at the
reporting person's expense shall cause a firm of nationally recognized
Independent public accountants (who may also render other services to the
reporting person) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to the
Trustee, the Depositor and to the Rating Agencies, to the effect that such firm
has examined certain documents and records relating to the servicing of similar
mortgage loans under similar agreements and that, on the basis of such
examination conducted substantially in compliance with generally accepted
auditing standards and the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages serviced for FHLMC, such servicing
has been conducted in compliance with similar agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
generally accepted auditing standards and the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program for Mortgages serviced for FHLMC
require it to report, in which case such exceptions and errors shall be so
reported. Each reporting person shall obtain from the related accountants, or
shall prepare, an electronic version of each Accountant's Statement and provide
such electronic version to the Trustee for filing in accordance with the
procedures set forth in Section 3.22 hereof. With respect to any electronic
version of an Accountant's Statement prepared by the reporting person, the
reporting person shall
105
receive written confirmation from the related accountants that such electronic
version is a conformed copy of the original Accountant's Statement.
SECTION 3.16. Access to Certain Documentation.
The Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the
Servicer or Special Servicer. Nothing in this Section 3.16 shall detract from
the obligation of the Servicer and Special Servicer to observe any applicable
law prohibiting disclosure of information with respect to the Borrowers, and the
failure of the Servicer and Special Servicer to provide access as provided in
this Section 3.16 as a result of such obligation shall not constitute a breach
of this Section 3.16.
SECTION 3.17. Title and Management of REO Properties and
REO Account Properties.
(a) In the event that title to any Mortgaged Property is
acquired for the benefit of Certificateholders in foreclosure, by deed in lieu
of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or
certificate of sale shall be taken in the name of the Trustee, or its nominee
(which shall not include the Servicer), or a separate trustee or co-trustee, on
behalf of the Trust Fund. The Special Servicer, after consultation with the
Automobile Adviser with respect to Automobile Loans as provided in Section
3.31(a), on behalf of the Trust Fund, shall dispose of any REO Property prior to
the close of the third calendar year following the year in which the Trust Fund
acquires ownership of such REO Property for purposes of Section 860G(a)(8) of
the Code, unless (i) the Special Servicer on behalf of the Lower-Tier REMIC has
applied for an extension of such period pursuant to Sections 856(e)(3) and
860G(a)(8)(A) of the Code, in which case the Special Servicer shall sell such
REO Property within the applicable extension period or (ii) the Special Servicer
seeks and subsequently receives an Opinion of Counsel (which opinion shall be an
expense of the Trust Fund), addressed to the Special Servicer and Trustee, to
the effect that the holding by the Trust Fund of such REO Property for an
additional specified period will not cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) at any time that any Certificate is outstanding, in which
event such period shall be extended by such additional specified period subject
to any conditions set forth in such Opinion of Counsel. The Special Servicer, on
behalf of the Trust Fund, shall dispose of any REO Property held by the Trust
Fund prior to the last day of such period (taking into account extensions) by
which such REO Property is required to be disposed of pursuant to the provisions
of the immediately preceding sentence in a manner provided under Section 3.18
hereof. The Special Servicer shall manage, conserve, protect and operate each
REO Property for the Certificateholders solely for
106
the purpose of its prompt disposition and sale in a manner which does not
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a)).
(b) The Special Servicer shall have full power and authority,
in consultation with the Automobile Adviser with respect to Automobile Loans (to
the extent provided in Section 3.31(a)) subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which the
Special Servicer manages and operates similar property owned or managed by the
Special Servicer or any of its Affiliates, all on such terms and for such period
as the Special Servicer deems to be in the best interests of Certificateholders,
and, in connection therewith, the Special Servicer shall agree to the payment of
management fees that are consistent with general market standards. Consistent
with the foregoing, the Special Servicer shall cause or permit to be earned with
respect to such REO Property any "net income from foreclosure property," within
the meanings of Section 860G(c) of the Code, which is subject to tax under the
REMIC Provisions, only if it has determined, and has so advised the Trustee in
writing, that the earning of such income on a net after-tax basis could
reasonably be expected to result in a greater recovery on behalf of
Certificateholders than an alternative method of operation or rental of such REO
Property that would not be subject to such a tax.
The Special Servicer shall segregate and hold all revenues
received by it with respect to any REO Property separate and apart from its own
funds and general assets and shall establish and maintain with respect to any
REO Property a segregated custodial account (each, an "REO Account"), each of
which shall be an Eligible Account and shall be entitled "LaSalle National Bank,
as Trustee, in trust for Holders of Deutsche Mortgage & Asset Receiving
Corporation, COMM 1999-1 Commercial Mortgage Pass-Through Certificates, REO
Account." The Special Servicer shall be entitled to withdraw for its account any
interest or investment income earned on funds deposited in an REO Account to the
extent provided in Section 3.07(b). The Special Servicer shall deposit or cause
to be deposited in the REO Account within one Business Day after receipt of REO
Proceeds), and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of such REO Property and for other
Property Protection Expenses with respect to such REO Property, including:
(i) all insurance premiums due and payable in respect of any
REO Property;
(ii) all real estate taxes and assessments in respect of any
REO Property that may result in the imposition of a lien
thereon;
(iii) all costs and expenses reasonable and necessary to
protect, maintain, manage, operate, repair and restore any
REO Property; and
(iv) any taxes imposed on the Upper-Tier REMIC, the Middle-Tier
REMIC or Lower-Tier REMIC in respect of net income from
foreclosure property in accordance with Section 4.05.
107
To the extent that such REO Proceeds are insufficient for the purposes set
forth in clauses (i) through (iii) above the Special Servicer shall advance the
amount of such shortfall unless the Special Servicer determines, in its good
faith judgment, that such Advance would be a Nonrecoverable Advance. If the
Special Servicer does not make such Advance in violation of the immediately
preceding sentence, the Servicer shall make such Advance; if the Servicer does
not make any such Advance, the Trustee shall make such Advance; and if the
Trustee fails to make any such Advance, the Fiscal Agent shall make such
Advance, unless in each case, the Servicer, the Trustee or the Fiscal Agent
determines that such Advance would be a Nonrecoverable Advance. The Trustee and
the Fiscal Agent shall be entitled to rely, conclusively, on any determination
by the Servicer that an Advance, if made, would be a Nonrecoverable Advance. The
Trustee and the Fiscal Agent, in determining whether or not a proposed Advance
would be a Nonrecoverable Advance, shall be subject to the standards applicable
to the Servicer hereunder. The Special Servicer, Servicer, the Trustee or the
Fiscal Agent, as applicable, shall be entitled to reimbursement of such Advances
(with interest at the Advance Rate) made pursuant to the preceding sentence, to
the extent set forth in Section 3.06(ii). The Special Servicer shall withdraw
from each REO Account and remit to the Servicer for deposit into the Collection
Account on a monthly basis prior to or on the related Due Date the Net REO
Proceeds received or collected from each REO Property, except that in
determining the amount of such Net REO Proceeds, the Special Servicer may retain
in each REO Account reasonable reserves for repairs, replacements and necessary
capital improvements and other related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any
New Lease, if the New Lease by its terms will give rise to
any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any New
Lease, other than amounts that will constitute Rents from
Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the repair or maintenance thereof or the
completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of
such building or other improvement was completed before
default on the related Mortgage Loan became imminent, all
within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate
any REO Property on any date more than 90 days after its
date of acquisition by the Trust Fund, unless such Person
is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined
108
without regard to the exception applicable for purposes of Section 860D(a) of
the Code) at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
The Special Servicer shall be required to contract with an
Independent Contractor (acceptable to each Rating Agency as evidenced by written
confirmation that contracting with such Independent Contractor would not, in and
of itself cause a downgrade, qualification or withdrawal of the then-current
ratings assigned to any Class of Certificates), the fees and expenses of which
shall be an expense of the Trust Fund and payable out of REO Proceeds, for the
operation and management of any REO Property, within 90 days of the Trust Fund's
acquisition thereof (unless the Special Servicer shall have provided the Trustee
with an Opinion of Counsel that the operation and management of any REO Property
other than through an Independent Contractor shall not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Code Section
860G(a)(8)) (which opinion shall be an expense of the Trust Fund), provided
that:
(i) the terms and conditions of any such contract shall be
reasonable and customary for the area and type of property
and shall not be inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs
and expenses incurred in connection with the operation and
management of such REO Property, including those listed
above, and remit all related revenues (net of such costs
and expenses) to the Special Servicer as soon as
practicable, but in no event later than thirty days
following the receipt thereof by such Independent
Contractor;
(iii) none of the provisions of this Section 3.17(b) relating to
any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the
Special Servicer of any of its duties and obligations to
the Trust Fund or the Trustee on behalf of the
Certificateholders with respect to the operation and
management of any such REO Property; and
(iv) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing
all duties and obligations in connection with the
operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for it related to
its duties and obligations hereunder for indemnification of the Special Servicer
by such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification.
(c) Promptly following any acquisition by the Trust Fund of an
REO Property, the Special Servicer shall notify the Servicer thereof, and, upon
receipt of such notice, the
109
Servicer shall obtain an Updated Appraisal thereof, but only in the event that
any Updated Appraisal with respect thereto is more than 12 months old, in order
to determine the fair market value of such REO Property and shall notify the
Depositor, the Special Servicer and the Trustee hereto of the results of such
appraisal. Any such appraisal shall be conducted in accordance with Appraisal
Institute standards and the cost thereof shall be an expense of the Trust Fund.
The Servicer shall obtain a new Updated Appraisal or a letter update every 12
months thereafter.
(d) When and as necessary, the Special Servicer shall send to
the Trustee a statement prepared by the Special Servicer setting forth the
amount of net income or net loss, as determined for federal income tax purposes,
resulting from the operation and management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any other amount not constituting Rents from Real Property in respect
of, any REO Property in accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Specially Serviced Mortgage Loans
and REO Properties.
(a) If the Special Servicer has determined to sell any
Specially Serviced Mortgage Loan in accordance with Section 3.10 (after
consultation with the Automobile Adviser in the case of Automobile Loans), the
Special Servicer shall promptly notify, in writing, the Servicer and the
Trustee, and the Trustee shall so notify, in writing, within 10 days after
receipt of its notice, the Holders of the Controlling Class. The Holder or
Holders of the majority of the Voting Rights (the "Majority Certificateholder")
of the Controlling Class may at its (or their) option purchase from the Trust
Fund, at a price equal to the Repurchase Price, any such Specially Serviced
Mortgage Loan. The Repurchase Price for any Specially Serviced Mortgage Loan
purchased hereunder shall be deposited into the Collection Account, and the
Trustee, upon receipt of an Officers' Certificate from the Servicer to the
effect that such deposit has been made, shall release or cause to be released to
the Majority Certificateholder of the Controlling Class (or any designee
thereof) the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Majority Certificateholder of the Controlling Class
(or any designee thereof) ownership of such Specially Serviced Mortgage Loan.
(b) If the Majority Certificateholder of the Controlling Class
has not purchased any such Specially Serviced Mortgage Loan within 15 days of
its having received notice in respect thereof pursuant to the immediately
preceding subsection (a), either the Special Servicer or, subject to the Special
Servicer's prior rights in such regard, the Servicer may at its option, within
15 Business Days after receipt of such notice, purchase such Specially Serviced
Mortgage Loan from the Trust Fund, at a price equal to the Repurchase Price. The
Repurchase Price for any Specially Serviced Mortgage Loan purchased hereunder
shall be deposited into the Collection Account, and the Trustee, upon receipt of
an Officers' Certificate from the Servicer to the effect that such deposit has
been made, shall release or cause to be released to the Servicer or the Special
Servicer, as applicable, the related Mortgage File, and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty,
110
as shall be necessary to vest in the Servicer or the Special Servicer as
applicable, such Specially Serviced Mortgage Loan.
(c) The Special Servicer may offer to sell any Specially
Serviced Mortgage Loan not otherwise purchased by the Majority Certificateholder
of the Controlling Class, the Servicer or the Special Servicer pursuant to
subsection (a) or (b) above, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would produce a greater
recovery to Certificateholders on a present value basis than would liquidation
of the related Mortgaged Property. Such offering shall be made in a commercially
reasonable manner (which, for purposes hereof includes an offer to sell without
representation or warranty other than customary warranties of title, loan
status, condition and similar customary matters, if liability for breach thereof
is limited to recourse against the Trust Fund) for a period of not less than 10
days or more than 90 days. Unless the Special Servicer determines that
acceptance of any offer would not be in the best economic interests of the Trust
Fund, the Special Servicer shall accept the highest cash offer received from any
Person that constitutes a fair price for such Mortgage Loan. In the absence of
any offer determined as provided below to be fair, the Special Servicer shall
proceed with respect to such Specially Serviced Mortgage Loan in accordance with
Section 3.10 and, otherwise, in accordance with the Servicing Standard.
The Special Servicer shall use reasonable efforts to solicit
offers for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.17(a). The
Special Servicer shall accept the first (and, if multiple bids are
contemporaneously received, highest) cash bid received from any Person that
constitutes a fair price for such REO Property. If the Special Servicer
determines, in its good faith and reasonable judgment, that it will be unable to
realize a fair price for any REO Property within the time constraints imposed by
Section 3.17(a), then the Special Servicer shall dispose of such REO Property
upon such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances and, in
connection therewith, shall accept the highest outstanding cash bid, regardless
of from whom received.
The Special Servicer shall give the Trustee and the Servicer not
less than five Business Days' prior written notice of its intention to sell any
defaulted Specially Serviced Mortgage Loan or Mortgage Loan or REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
defaulted Specially Serviced Mortgage Loan or any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any
defaulted Specially Serviced Mortgage Loan or REO Property, as the case may be,
for purposes of Section 3.18(c), shall be determined by the Special Servicer, if
the highest bidder is a Person other than the Special Servicer, and by the
Trustee, if the highest bidder is the Special Servicer; provided, however, that
no bid from an Interested Person shall constitute a fair price unless (i) it is
the highest bid received and (ii) at least two other bids are received from
independent third parties. In determining whether any offer received from an
Interested Person represents a fair price for any such Mortgage Loan or REO
Property, the Trustee shall be supplied with and shall rely on the most recent
appraisal or Updated Appraisal conducted in accordance with this Agreement
within the preceding 12-month period or in the absence of any such appraisal, on
a narrative appraisal
111
prepared by an appraiser selected by the Special Servicer if the Special
Servicer is not making an offer with respect to a Mortgage Loan or REO Property
(or by the Servicer if the Special Servicer is making such an offer). The cost
of any such narrative appraisal shall be covered by, and shall be reimbursable
as, a Property Advance. In determining whether any offer from a Person other
than an Interested Person constitutes a fair price for any such Mortgage Loan or
REO Property, the Special Servicer shall take into account (in addition to the
results of any appraisal, updated appraisal or narrative appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair price
for any such Specially Serviced Mortgage Loan or REO Property, any appraiser
shall be instructed to take into account, as applicable, among other factors,
the period and amount of any delinquency on the affected Specially Serviced
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.17(a).
The Repurchase Price for any Specially Serviced Mortgage Loan or REO Property
shall in all cases be deemed a fair price.
(e) Subject to subsections (a) through (e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any defaulted
Specially Serviced Mortgage Loan or REO Property, and the collection of all
amounts payable in connection therewith. In connection therewith, the Special
Servicer may charge for its own account prospective offerors, and may retain,
fees that approximate the Special Servicer's actual costs in the preparation and
delivery of information pertaining to such sales or exchanging offers without
obligation to deposit such amounts into the Collection Account. Any sale of a
defaulted Specially Serviced Mortgage Loan or any REO Property shall be final
and without recourse to the Trustee or the Trust Fund (except such recourse to
the Trust Fund imposed by those representations and warranties typically given
in such transactions, any prorations applied thereto and any customary closing
matters), and if such sale is consummated in accordance with the terms of this
Agreement, none of the Special Servicer, the Servicer, the Depositor, the Fiscal
Agent or the Trustee shall have any liability to any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
(f) Any sale of a defaulted Specially Serviced Mortgage
Loan or any REO Property shall be for cash only.
(g) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in its
reasonable and good faith judgment, that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations or the
terms offered by the prospective buyer making the lower offer are more
favorable).
112
SECTION 3.19. Additional Obligations of the Servicer and
Special Servicer; Inspections.
(a) The Servicer (or, with respect to Specially Serviced
Mortgage Loans and REO Properties, the Special Servicer) shall inspect or cause
to be inspected (at its own expense) each Mortgaged Property at such times and
in such manner as are consistent with the Servicing Standard, but in any event
shall inspect each Mortgaged Property with an Allocated Loan Amount of (A)
$2,000,000 or more at least once every 12 months and (B) less than $2,000,000 at
least once every 24 months, in each case commencing in March 2000 (or at such
other frequency as each Rating Agency shall have confirmed in writing to the
Servicer will not result a downgrade, qualification or withdrawal of the
then-current ratings assigned to any Class of the Certificates). The Servicer or
Special Servicer, as applicable, shall send to the Rating Agencies (and in the
case of Automobile Properties, the Automobile Adviser) and the Underwriters
within 20 days of completion, each inspection report, unless the Rating Agencies
or the Underwriters, as applicable, notify the Servicer or Special Servicer, as
applicable, that it does not want such reports.
(b) With respect to each Mortgage Loan, the Servicer (or the
Special Servicer, in the case of a Specially Serviced Mortgage Loan) shall
enforce the Trustee's rights with respect to the Manager under the related Loan
Documents and Management Agreement.
SECTION 3.20. Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Servicer and must be a corporation organized and doing business under the laws
of the United States of America or any state, having a principal office and
place of business in a state and city acceptable to the Servicer, having a
combined capital and surplus of at least $15,000,000, authorized under such laws
to do a trust business and subject to supervision or examination by federal or
state authorities. The Trustee shall serve as the initial Authenticating Agent
and the Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Depositor and the Servicer. The Trustee may at any time terminate the agency of
the Authenticating Agent by giving written notice of termination to the
Authenticating Agent, the Depositor and the Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 3.20, the Trustee may
113
appoint a successor Authenticating Agent, which shall be acceptable to the
Servicer and the Depositor, and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
3.20.
The Authenticating Agent shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Any reasonable compensation paid to the Authenticating Agent shall be an
unreimbursable expense of the Trustee.
SECTION 3.21. Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a
portion of the Mortgage Files on behalf of the Trustee, by entering into a
Custodial Agreement with any Custodian who is not the Trustee. The Trustee
agrees to comply with the terms of each Custodial Agreement and to enforce the
terms and provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have a combined capital and
surplus of at least $10,000,000, shall have a long-term debt rating of at least
"BBB" from Fitch and "Baa2" from ▇▇▇▇▇'▇, unless the Trustee shall have received
prior written confirmation from each Rating Agency that the appointment of such
Custodian would not cause such Rating Agency to withdraw, qualify or downgrade
any of its then-current ratings on the Certificates, and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File. Each
Custodial Agreement may be amended only as provided in Section 10.07. Any
reasonable compensation paid to the Custodian shall be an unreimbursable expense
of the Trustee. The Trustee shall serve as the initial Custodian. The Custodian
shall maintain a fidelity bond in the form and amount that are customary for
securitizations similar to the securitization evidenced by this Agreement, with
Trustee named as loss payee. The Custodian shall be deemed to have complied with
this provision if one of its Affiliates has such fidelity bond coverage and, by
the terms of such fidelity bond, the coverage afforded thereunder extends to the
Custodian. In addition, the Custodian shall keep in force during the term of
this Agreement a policy or policies of insurance covering loss occasioned by the
errors and omissions of its officers and employees in connection with its
obligations hereunder in the form and amount that are customary for
securitizations similar to the securitization evidenced by this Agreement, with
the Trustee named as loss payee. All fidelity bonds and policies of errors and
omissions insurance obtained under this Section 3.21 shall be issued by a
Qualified Insurer.
SECTION 3.22. Reports to the Securities and Exchange
Commission; Available Information.
(a) The Servicer and the Trustee shall prepare and the Trustee
shall sign and file, on behalf of the Depositor, any and all Exchange Act
Reports; provided, however, that (i) the Depositor shall prepare, sign and file
with the Commission the initial Form 8-K relating to the Trust Fund and (ii) the
Special Servicer shall prepare and sign on behalf of the Depositor any
114
Exchange Act Report which includes an Annual Compliance Report relating to the
Special Servicer. Each Exchange Act Report consisting of a monthly Distribution
Date Statement, Comparative Financial Status Report, Delinquent Loan Status
Report, Historical Loss Estimate Report, Historical Loan Modification Report,
REO Status Report, Operating Statement Analysis, Operating Statement Analysis
Worksheet, Watch List, or report pursuant to Section 4.02(b)(i) shall be
prepared as an exhibit or exhibits to a Form 8-K. Each Exchange Act Report
consisting of an Annual Compliance Report shall be prepared as exhibits to an
Annual Report on Form 10-K and shall identify the aggregate number of Holders of
Public Certificates and Direct Participants holding positions in Public
Certificates as of December 31 (or the nearest Business Day if such date is not
a Business Day) of the related year based on information provided by the
Trustee. The Trustee shall provide the Servicer and the Special Servicer with a
list of Certificateholders and Direct Participants holding Public Certificates
as of December 31 of the related year no later than two Business Days prior to
the date on which the Servicer or Special Servicer, as applicable, is required
to deliver the related Exchange Act Report to the Trustee. For each Exchange Act
Report, the Servicer or the Special Servicer, as applicable, shall prepare (i) a
manually-signed paper version of such report and (ii) an electronic version of
such report, which version shall be prepared as a Microsoft Word for Windows
file (or in such other format as the Trustee, the Depositor and the Servicer or
the Special Servicer may agree), that is suitable for filing via the SEC ▇▇▇▇▇
system. Exchange Act Reports consisting of (i) a monthly Distribution Date
Statement, a Comparative Financial Status Report, Delinquent Loan Status Report,
Historical Loss Estimate Report, Historical Loan Modification Report, REO Status
Report, Operating Statement Analysis, Operating Statement Analysis Worksheet,
Watch List, or report pursuant to Section 4.02(b)(i) shall be filed within ten
days after each Distribution Date; and (ii) an Annual Compliance Report shall be
filed on or prior to April 15 of each calendar year. Manually-signed copies of
each Exchange Act Report shall be delivered to the Trustee.
All reports and notices to be filed by the Trustee, other than
the monthly Distribution Date Statements, shall be delivered by the Servicer to
the Trustee no later than 3 days after each Distribution Date, and shall be in
an 80 column text format suitable for ▇▇▇▇▇ filing, or in such other format that
is acceptable to the Trustee from time to time.
If information for any Exchange Act Report is incomplete by the
date on which such report is required to be filed under the Exchange Act, the
Trustee or, with respect to any Annual Compliance Report relating to the Special
Servicer, the Special Servicer, shall prepare and execute a Form 12b-25 under
the Exchange Act and shall deliver an electronic version of such form to the
Trustee. The Trustee or the Special Servicer, as applicable, shall file the
related report in electronic form when such information is available.
If the requirements of Section 15(d) of the Exchange Act have not
been met, the Trustee shall suspend filing reports with the Commission as of
fiscal year 2000 and shall file a Form 15 with the Commission no later than
January 31, 2000.
The Trustee shall solicit any and all proxies of the
Certificateholders whenever such proxies are required to be solicited pursuant
to the Exchange Act.
(b) [Intentionally Left Blank].
115
(c) The Servicer shall, in accordance with such reasonable
rules and procedures as it may adopt (which may include the requirement that an
agreement be executed that provides that such information shall be used solely
for purposes of evaluating the investment characteristics of the Certificates
and in accordance with applicable law governing securities, to the extent the
Servicer deems such an agreement to be necessary or appropriate), also make
available any additional information relating to the Mortgage Loans, the
Mortgaged Properties or the Borrowers, for review by the Depositor, the
Automobile Adviser (only with respect to Automobile Loans), the Underwriters,
the Rating Agencies and any other Persons to whom the Servicer believes such
disclosure is appropriate, in each case except to the extent doing so is
prohibited by applicable law or by any related Loan Documents related to a
Mortgage Loan.
(d) The Servicer and the Special Servicer shall make available
at its offices during normal business hours, or send to the requesting party at
the expense of each such requesting party (other than the Rating Agencies, the
Automobile Adviser and the Depositor) for review by the Depositor, the Trustee,
the Rating Agencies, the Underwriters, the Automobile Adviser and any other
Persons to whom the Servicer or the Special Servicer, as applicable, believes
such disclosure to be appropriate the following items: (i) all financial
statements, occupancy information, rent rolls, retail sales information, average
daily room rates and similar information received by the Servicer or the Special
Servicer, as applicable, from each Borrower, (ii) the inspection reports
prepared by or on behalf of the Servicer or the Special Servicer, as applicable,
in connection with the property inspections pursuant to Section 3.19, (iii) any
and all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Servicer or the Special Servicer, as applicable and (iv) any
and all officer's certificates and other evidence delivered to the Trustee and
the Depositor to support the Servicer's determination that any Advance was, or
if made would be, a Nonrecoverable Advance. Copies of any and all of the
foregoing items shall be available, to the extent in their possession, from the
Servicer or the Special Servicer, as applicable, or the Trustee, as applicable,
upon request.
(e) Notwithstanding the obligations of the Servicer set forth
in the preceding provisions of this Section 3.22, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(f) Notwithstanding any provisions in this Agreement to the
contrary, the Trustee shall not be required to review the content of any
Exchange Act Report for compliance with applicable securities laws or
regulations, completeness, accuracy or otherwise, and the Trustee shall have no
liability with respect to any Exchange Act Report filed with the Commission or
delivered to Certificateholders. None of the Servicer, the Automobile Adviser,
the Special Servicer and the Trustee shall be responsible for the accuracy or
completeness of any information supplied by a Borrower or a third party for
inclusion in any Form 8-K, and each of the Servicer, the Automobile Adviser, the
Special Servicer and the Trustee, and each of their respective directors,
officers, employees and agents shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
any legal action relating to any misstatement or omission or alleged
misstatement or omission therein. None of the Trustee, the Special Servicer and
the Servicer shall have any responsibility or liability with
116
respect to any Exchange Act Report filed by the Depositor, and each of the
Servicer, the Special Servicer and the Trustee shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to any misstatement or omission or
alleged misstatement or omission therein.
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts.
The Servicer shall administer each Lock-Box Account, Cash
Collateral Account, Escrow Account and Reserve Account in accordance with the
related Mortgage or Loan Agreement, Cash Collateral Account Agreement or
Lock-Box Agreement, if any.
SECTION 3.24. Property Advances.
(a) The Servicer or, with respect to Specially Serviced
Mortgage Loans, REO Mortgage Loans and REO Properties, the Special Servicer (or,
to the extent provided in Section 3.24(b), the Trustee or the Fiscal Agent) to
the extent specifically provided for in this Agreement, shall make any Property
Advances as and to the extent otherwise required pursuant to the terms hereof.
For purposes of distributions to Certificateholders and compensation to the
Servicer, Special Servicer or Trustee, Property Advances shall not be considered
to increase the principal balance of any Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so provide.
(b) The Servicer shall notify the Trustee and the Fiscal
Agent, and the Special Servicer shall notify the Servicer, the Trustee and the
Fiscal Agent, in writing promptly upon, and in any event within one Business Day
after, becoming aware that it will be unable to make any Property Advance
required to be made pursuant to the terms hereof, and in connection therewith,
shall set forth in such notice the amount of such Property Advance, the Person
to whom it is to be paid, and the circumstances and purpose of such Property
Advance, and shall set forth therein information and instructions for the
payment of such Property Advance, and, on the date specified in such notice for
the payment of such Property Advance, or, if the date for payment has passed or
if no such date is specified, then within five Business Days following such
notice, the Trustee (or with respect to a Property Advance required to be made
by the Special Servicer, the Servicer, and if the Servicer so fails, the
Trustee), subject to the provisions of Section 3.24(c), shall pay the amount of
such Property Advance in accordance with such information and instructions. If
the Trustee fails to make any Property Advance required to be made under this
Section 3.24, the Fiscal Agent, subject to the provisions of Section 3.24(c),
shall make such Advance on the same day the Trustee was required to make such
Property Advance and, thereby, the Trustee shall not be in default under this
Agreement.
(c) None of the Servicer, the Trustee, the Fiscal Agent or the
Special Servicer shall be obligated to make a Property Advance as to any
Mortgage Loan or REO Property if the Servicer, the Trustee, the Fiscal Agent or
the Special Servicer, as applicable, determines that such Advance will be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent (or the Servicer with
respect to a Property Advance required to be made by the Special Servicer) shall
be
117
entitled to rely, conclusively, on any determination by the Servicer or Special
Servicer, as applicable, that a Property Advance, if made, would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent, in determining whether
or not a Property Advance previously made is, or a proposed Property Advance, if
made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Servicer hereunder.
(d) The Servicer, the Special Servicer, the Trustee and/or the
Fiscal Agent, as applicable, shall be entitled to the reimbursement of Property
Advances made by any of them to the extent permitted pursuant to Section
3.06(ii) of this Agreement, together with any related Advance Interest Amount in
respect of such Property Advances, and the Servicer and Special Servicer hereby
covenant and agree to promptly seek and effect the reimbursement of such
Property Advances from the related Borrowers to the extent permitted by
applicable law and the related Loan Documents.
SECTION 3.25. Appointment of Special Servicer.
(a) Banc One Mortgage Capital Markets, LLC is hereby appointed
as the initial Special Servicer to service each Specially Serviced Mortgage
Loan.
(b) Certificateholders representing greater than 50% of the
Percentage Interests of the Controlling Class (including any Certificates held
by the Special Servicer or its Affiliates) shall be entitled to remove the
Special Servicer with or without cause and to appoint a successor Special
Servicer, provided that each Rating Agency confirms to the Trustee in writing
that such appointment, in and of itself, would not cause a downgrade,
qualification or withdrawal of the then-current ratings assigned to any Class of
Certificates. If there is a Special Servicer Event of Default, the Special
Servicer shall be removed and replaced pursuant to Sections 7.01(c) and 7.02.
(c) The appointment of any such successor Special Servicer,
shall not relieve the Servicer, the Trustee or the Fiscal Agent of their
respective obligations to make Advances as set forth herein; provided, however,
the Servicer shall not be liable for any actions or any inaction of such
successor Special Servicer. Any termination fee payable to the terminated
Special Servicer (and it is acknowledged that there is no such fee payable in
the event of a termination of the Servicer as Special Servicer or in the event
of a termination for breach of this Agreement) shall be paid by the
Certificateholders so terminating the Special Servicer and shall not in any
event be an expense of the Trust Fund.
(d) No termination of the Special Servicer and appointment of
a successor Special Servicer shall be effective until the successor Special
Servicer has assumed all of its responsibilities, duties and liabilities
hereunder pursuant to a writing satisfactory to the Trustee and each Rating
Agency, as evidenced in writing, and the Trustee has received written
confirmation from each Rating Agency that such appointment would not cause any
Rating Agency to qualify, withdraw or downgrade any of its then-current ratings
on any Certificates. Any successor Special Servicer shall make the
representations and warranties provided for in Section 2.04(b) mutatis mutandis.
118
SECTION 3.26. Transfer of Servicing Between Servicer and
Special Servicer; Record Keeping; Asset
Status Report.
(a) Upon the occurrence of any event specified in the
definition of Specially Serviced Mortgage Loan with respect to any Mortgage
Loan, the Servicer shall immediately give notice thereof, to the Special
Servicer and shall use its best efforts to provide the Special Servicer with all
information, documents (but excluding the original documents constituting the
Mortgage File) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its duties hereunder
with respect thereto without acting through a sub-servicer. The Servicer shall
use its best efforts to comply with the preceding sentence within five Business
Days of the date such Mortgage Loan becomes a Specially Serviced Mortgage Loan
and in any event shall continue to act as Servicer and administrator of such
Mortgage Loan until the Special Servicer has commenced the servicing of such
Mortgage Loan, which shall occur upon the receipt by the Special Servicer of the
information, documents and records referred to in the preceding sentence. With
respect to each Mortgage Loan that becomes a Specially Serviced Mortgage Loan,
the Servicer shall instruct the related Borrower to continue to remit all
payments in respect of such Mortgage Loan to the Servicer. The Servicer or
Special Servicer, as applicable, may agree that, notwithstanding the preceding
sentence, with respect to each Mortgage Loan that becomes a Specially Serviced
Mortgage Loan, the Servicer shall instruct the related Borrower to remit all
payments in respect of such Mortgage Loan to the Special Servicer, provided that
the payee in respect of such payments shall remain the Servicer. The Special
Servicer shall remit to the Servicer any such payments received by it pursuant
to the preceding sentence within one Business Day of receipt. The Servicer shall
forward any notices it would otherwise send to the Borrower of a Specially
Serviced Mortgage Loan to the Special Servicer who shall send such notice to the
related Borrower.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan, the Special Servicer shall immediately give
notice thereof to the Servicer, and upon giving such notice, such Mortgage Loan
shall cease to be a Specially Serviced Mortgage Loan in accordance with the
first proviso of the definition of Specially Serviced Mortgage Loan, the Special
Servicer's obligation to service such Mortgage Loan shall terminate and the
obligations of the Servicer to service and administer such Mortgage Loan as a
Mortgage Loan that is not a Specially Serviced Mortgage Loan shall resume. In
addition, if the related Borrower has been instructed, pursuant to the preceding
paragraph, to make payments to the Special Servicer, upon such determination,
the Special Servicer shall instruct the related Borrower to remit all payments
in respect of such Specially Serviced Mortgage Loan directly to the Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the
Special Servicer shall provide to the Trustee originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (to the extent such documents are in the possession of the Special
Servicer) and copies of any additional related Mortgage Loan information,
including correspondence with the related Borrower, and the Special Servicer
shall
119
promptly provide copies of all of the foregoing to the Servicer as well as
copies of any analysis or internal review prepared by or for the benefit of the
Special Servicer.
(c) Not later than the Business Day preceding each date on
which the Servicer is required to furnish a report under Section 3.13(a) to the
Trustee, the Special Servicer shall deliver to the Trustee, with a copy to the
Servicer, a written statement describing, on a Mortgage Loan by Mortgage Loan
basis, (i) the amount of all payments on account of interest received on each
Specially Serviced Mortgage Loan, the amount of all payments on account of
principal, including Principal Prepayments, on each Specially Serviced Mortgage
Loan, the amount of Net Insurance Proceeds and Net Liquidation Proceeds received
with respect to each Specially Serviced Mortgage Loan, and the amount of net
income or net loss, as determined from management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any rental income that does not constitute Rents from Real Property
with respect to the REO Property relating to each applicable Specially Serviced
Mortgage Loan, in each case in accordance with Section 3.17 and (ii) such
additional information relating to the Specially Serviced Mortgage Loans as the
Servicer or Trustee reasonably requests to enable it to perform its duties under
this Agreement. Such statement and information shall be furnished to the
Servicer in writing and/or in such electronic media as is acceptable to the
Servicer.
(d) Notwithstanding the provisions of the preceding subsection
(c), the Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and shall provide the Special Servicer
with any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Servicer
with any information reasonably required by the Servicer to perform its duties
under this Agreement.
(e) The Servicer shall furnish to the Special Servicer a
current copy of any "watch list" that it maintains with respect to the Mortgage
Loans.
(f) No later than 30 days after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the Special Servicer shall deliver to each
Rating Agency and the Directing Certificateholder (and with respect to any
Automobile Loan, the Automobile Adviser) and upon request, the Underwriters, 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) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent with
the Servicing Standard, that are applicable to the exercise of remedies
as aforesaid and to the enforcement of any related guaranties or other
collateral for the related Mortgage Loan and whether outside legal
counsel has been retained;
120
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such
Specially Serviced Mortgage Loan might be returned to performing status
and returned to the Servicer for regular servicing or otherwise realized
upon;
(v) the appraised value of the Mortgaged Property together
with the assumptions used in the calculation thereof; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
If within 15 Business Days of receiving an Asset Status Report,
the Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law or the terms of the
applicable Loan Documents. If the Directing Certificateholder disapproves such
Asset Status Report within such 15 Business Day-period, the Special Servicer
will revise such Asset Status Report and deliver to the Directing
Certificateholder, the Rating Agencies and the Servicer (and with respect to any
Automobile Loan, the Automobile Adviser) a new Asset Status Report as soon as
practicable, but in no event later than 5 days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.26(f) until the Directing Certificateholder shall fail to
disapprove such revised Asset Status Report in writing within 5 Business Days of
receiving such revised Asset Status Report or until the Special Servicer makes
one of the determinations described below. In any event, if the Directing
Certificateholder does not approve an Asset Status Report within 25 Business
Days from the first submission of an Asset Status Report, the Special Servicer
may act upon the form of Asset Status Report that it deems appropriate and in
compliance with the Servicing Standard. The Directing Certificateholder is
required to act as promptly as possible in order to finalize the Asset Status
Report. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a 10 Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and it has made a
reasonable effort to contact the Directing Certificateholder and (ii) in any
case, shall determine whether such affirmative disapproval is not in the best
interest of all the Certificateholders pursuant to the Servicing Standard. Upon
making such determination, the Special Servicer shall notify the Fiscal Agent
and the Trustee of such rejection and deliver to the Fiscal Agent and the
Trustee a proposed notice to Certificateholders which shall include a copy of
the Asset Status Report, and the Trustee shall send such notice to all
Certificateholders. If the majority of such Certificateholders, as determined by
Voting Rights, fail, within 5 days of the Trustee's sending such notice, to
reject such Asset Status Report, the
121
Special Servicer shall implement the same. If the Asset Status Report is
rejected by the Certificateholders, the Special Servicer shall revise such Asset
Status Report as described above in this Section 3.26(f). The Trustee shall be
entitled to reimbursement from the Trust Fund for the reasonable expenses of
providing such notices. The Special Servicer shall be required to provide two
Business Days prior notice to and consult with the Directing Certificateholder
prior to foreclosing on or otherwise acquiring any REO Property, selling any
Defaulted Mortgage Loan or REO Property, effecting any modification that would
result in a Specially Serviced Mortgage Loan becoming a Modified Mortgage Loan
or accepting substitute or additional collateral for any Mortgage Loan.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standard and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standard.
No direction of the Directing Certificateholder shall (a) require
or cause the Special Servicer to violate the terms of a Specially Serviced
Mortgage Loan, applicable law or any provision of this Agreement, including the
Special Servicer's obligation to act in accordance with the Servicing Standard
and to maintain the REMIC status of each of the Lower-Tier REMIC, the
Middle-Tier REMIC and the Upper-Tier REMIC, or (b) result in the imposition of a
"prohibited transaction" or "contribution" tax under the REMIC Provisions, or
(c) expose the Servicer, the Special Servicer, the Depositor, the Mortgage Loan
Seller, the Trust Fund, the Trustee or their officers, directors, employees,
agents or "control persons" within the meaning assigned to such term in the Act,
to any claim, suit or liability or (d) materially expand the scope of the
Special Servicer's or the Servicer's responsibilities under this Agreement.
SECTION 3.27. [RESERVED].
SECTION 3.28. Limitations on and Authorizations of the
Servicer and Special Servicer with Respect
to Certain Mortgage Loans.
(a) Prior to taking any action with respect to a Mortgage Loan
secured by Mortgaged Properties located in a "one-action" state, the Servicer or
Special Servicer, as applicable, shall consult with legal counsel, the fees and
expenses of which shall be an expense of the Trust Fund.
(b) With respect to any Mortgage Loan which permits the
related Borrower, with the consent or grant of a waiver by mortgagee, to incur
additional indebtedness or to amend or modify the related Borrower's
organizational documents, then the Special Servicer may only consent to either
such action, or grant a waiver with respect thereto, if the Special Servicer
determines (in respect of Automobile Properties, after consultation with the
Automobile Adviser) that such consent or waiver is likely to result in a greater
recovery on a present value basis (discounted at the related Mortgage Rate) than
would not consenting to such action, and the Special Servicer first obtains
written confirmation from each Rating Agency that such consent or
122
grant of a waiver would not, in and of itself, result in a downgrade,
qualification or withdrawal of any of the then-current ratings assigned to the
Certificates. The Servicer shall not be entitled or required to consent to, or
grant a waiver with respect to, any such action.
(c) [Intentionally Left Blank].
(d) With respect to all Mortgage Loans that provide that the
holder of the related Note may apply the Monthly Payment against principal,
interest and any other sums due in the order as the holder shall determine, the
Servicer shall apply such Monthly Payment to interest (other than Excess
Interest or Default Interest) under the related Mortgage Loan prior to
application to principal or any other sums due.
(e) With respect to the Mortgage Loans that have Anticipated
Repayment Dates, the Servicer (including the Servicer in its capacity as a
Certificateholder, if applicable), shall not take any enforcement action with
respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than requests for
collection, until the Maturity Date of the related Mortgage Loan.
(f) To the extent not inconsistent with the related Mortgage
Loan, the Servicer shall not consent to a change of franchise affiliation with
respect to a Mortgaged Property unless it obtains written confirmation from
Fitch and ▇▇▇▇▇'▇ that such consent would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates.
(g) With respect to the Mortgage Loans that have Anticipated
Repayment Dates, the 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 Servicer's determination to waive the right to such accrued Excess Interest
is reasonably likely to produce a greater payment 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. The
Servicer will have no liability to the Trust Fund, the Certificateholders or any
other person so long as such determination is based on such criteria. Other than
pursuant to Section 3.30, the Special Servicer shall have no right to waive the
payment of Excess Interest under the circumstances described in this Section
3.28(g).
(h) With respect to the Mortgage Loans that (i) require
earthquake insurance, or (ii) (A) at the date of origination were secured by
Mortgaged Properties on which the related Borrower maintained earthquake
insurance and (B) have provisions which enable the mortgagee to continue to
require the related Borrower to maintain earthquake insurance, the Servicer
shall require the related Borrower to maintain such insurance in the amount, in
the case of clause (i), required by the Mortgage Loan and in the amount, in the
case of clause (ii), maintained at origination, in each case, to the extent such
amounts are available at commercially reasonable rates. Any determination by the
Servicer that such insurance is not available at commercially
123
reasonable rates shall be subject to confirmation by Fitch that such
determination not to purchase such insurance will not result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates rated by Fitch.
(i) The Servicer shall send written notice to each Borrower
and the related Manager and clearing bank that, if applicable, the Servicer
and/or the Trustee has been appointed as the "Designee" of the "Lender" under
any related Lock-Box Agreement.
(j) [Intentionally Left Blank].
(k) [Intentionally Left Blank].
(l) [Intentionally Left Blank].
(m) If any Mortgage Loan provides that the "Lender" with
respect thereto is required to purchase U.S. government obligations on behalf of
the related Borrower in connection with any defeasance of the related Note, the
Servicer shall purchase such obligations and effectuate such defeasance, at the
Borrower's expense, in accordance with the provisions of the related Loan
Documents, consistent with the Servicing Standard; provided that in no event may
the Servicer effect such defeasance or accept a cash payment prior to the
identification of such obligations.
(n) Servicer shall promptly provide notice to the "licensor"
or "franchisor" with respect to the Mortgaged Properties that are hotel
properties to the effect that the related Mortgage Loan has been assigned to the
Trust Fund. In so doing, Servicer shall include in such notices the information
specified in the related "comfort" or "estoppel" letters executed by the related
"licensor or "franchisor". Trustee shall cooperate with Servicer in furnishing
any information required to be include in such notices.
(o) The Servicer (together with its employees, officer and
directors) shall not utilize the proprietary and nonpublic information that it
becomes aware of in servicing the Mortgage Loans to render advice in connection
with, solicit, or otherwise participate in the refinancing of any Mortgage Loans
(whether at maturity or otherwise, unless the Mortgage Loan Seller confirms in
writing that it will not pursue the refinancing of such Mortgaged Property).
Neither the Servicer nor the Special Servicer shall make its mortgage loan
servicing system available to Servicer's affiliates engaged in the commercial
mortgage origination business.
(p) [Intentionally Left Blank].
(q) [Intentionally Left Blank].
(r) [Intentionally Left Blank].
(s) Without limiting the obligations of the Servicer hereunder
with respect to the enforcement of a Borrower's obligations under the related
Loan Documents, the Servicer
124
agrees that it shall enforce the provisions of the Loan Documents with respect
to the collection of Prepayment Premiums.
(t) In the event that a Rating Agency shall charge a fee in
connection with providing confirmation hereunder that a proposed action will not
result in the downgrade, withdrawal, or qualification of any rating assigned to
any Class of Certificates, the Servicer shall require the related Borrower to
pay such fee to the full extent permitted under the applicable Loan Documents.
SECTION 3.29. [Intentionally Left Blank].
SECTION 3.30. Modification, Waiver, Amendment and
Consents.
(a) The Special Servicer may agree to any modification, waiver
or amendment of any term of, forgive interest on and principal of, capitalize
interest on, permit the release, addition or substitution of collateral
securing, and/or permit the release of the Mortgagor on or any guarantor of any
Mortgage Loan without the consent of the Trustee or any Certificateholder,
subject, however, to each of the following limitations, conditions and
restrictions:
(i) other than as provided in Section 3.03 and 3.09, the
Special Servicer shall not agree to any modification, waiver or
amendment of any term of, or take any of the other acts referenced in
this Section 3.30(a) with respect to, any Mortgage Loan that would
affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder or, in the Special
Servicer's good faith and reasonable judgment, materially impair the
security for such Mortgage Loan or reduce the likelihood of timely
payment of amounts due thereon or materially alter, substitute or
increase the security for such Mortgage Loan (other than the alteration
or construction of improvements thereon) or any guaranty or other credit
enhancement with respect thereto (other than the substitution of a
similar commercially available credit enhancement contract); provided,
however, that the Special Servicer may agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.30(a) with respect to a Specially Serviced Mortgage Loan
that would have any such effect, but only if, in the Special Servicer's
reasonable and good faith judgment, a material default on such Mortgage
Loan has occurred or a default in respect of payment on such Mortgage
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis, than would liquidation. Any
such action taken by the Special Servicer, as applicable, shall be
accompanied by an Officers' Certificate to such effect and to which is
attached the present value calculation which establishes the basis for
such determination, a copy of which shall be delivered to the Trustee
for delivery to the Rating Agencies;
(ii) the Special Servicer may not extend the Maturity Date
of any Mortgage Loan beyond the date that is two years prior to the
Rated Final Distribution
125
Date, or, in the case of a Mortgage Loan secured by Borrower's interest
in a ground lease, the date that is 10 years prior to the maturity date
of such lease;
(iii) the Special Servicer shall not make or permit any
modification, waiver or amendment of any term of any Mortgage Loan that
would (A) be a "significant modification" of such Mortgage Loan within
the meaning of Treasury Regulations Section l.860G-2(b) or (B) cause any
Mortgage Loan to cease to be a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (the Special Servicer shall not be
liable for decisions made under this subsection which were made in good
faith and in reliance on Opinions of Counsel who is Independent of the
Special Servicer);
(iv) the Special Servicer shall not permit any Mortgagor
to add or substitute any collateral for an outstanding Mortgage Loan,
which collateral constitutes real property, unless the Special Servicer
shall have first determined, in its reasonable and good faith judgment,
based upon a Phase I environmental assessment (and such additional
environmental testing as the Special Servicer deems necessary and
appropriate) prepared by an Independent Person who regularly conducts
environmental assessments (and such additional environmental testing),
at the expense of the Mortgagor, that such additional or substitute
collateral is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions present
with respect to such new collateral relating to the use, management or
disposal of any Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation would be required under
any then-applicable environmental laws and/or regulations; and
(v) the Special Servicer shall not release or substitute
any collateral securing an outstanding Mortgage Loan except as provided
in Section 3.10(i) and except in the case of a release where (A) the use
of the collateral to be released will not, in the Special Servicer's
good faith and reasonable judgment, materially and adversely affect the
net operating income being generated by or the use of the related
Mortgaged Property, (B) there is a corresponding principal paydown of
such Mortgage Loan in an amount at least equal to, or a delivery of
substitute collateral with an appraised value at least equal to, the
appraised value of the collateral to be released, (C) the remaining
Mortgaged Property and any substitute collateral is, in the Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Mortgage Loan and (D) such release and/or substitution would
not result in the downgrade, qualification or withdrawal of the rating
then assigned by any Rating Agency to any Class of Certificates (as
confirmed in writing by each Rating Agency);
provided that notwithstanding clauses (i) through (v) above, the Special
Servicer shall not be required to oppose the confirmation of a plan in any
bankruptcy or similar proceeding involving a Mortgagor if in its reasonable and
good faith judgment such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar. The Special Servicer may
not extend the Maturity Date on any Mortgage Loan except pursuant to this
Section 3.30(a) or as otherwise required under the related loan documents.
126
(b) The Special Servicer shall not have any liability to the
Trust Fund, the Certificateholders or any other Person if its analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.30(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer, and the
Special Servicer was not negligent in ascertaining the pertinent facts.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or such
modification, waiver or amendment so permit.
(d) Except for waivers of penalty charges and notice periods,
all material modifications, waivers and amendments of the Mortgage Loans entered
into pursuant to this Section 3.30 shall be in writing.
(e) The Special Servicer shall notify the Trustee and each
other and with respect to the Automobile Loans, the Automobile Adviser, in
writing, of any modification, waiver or amendment of any term of any Mortgage
Loan and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly (and
in any event within 10 Business Days) following the execution thereof.
(f) The Special Servicer may, as a condition to granting any
request by a Mortgagor for consent, modification, waiver or indulgence or any
other matter or thing, the granting of which is within its discretion pursuant
to the terms of the instruments evidencing or securing the related Mortgage Loan
and is permitted by the terms of this Agreement and applicable law, require that
such Mortgagor pay to it (i) as additional servicing compensation, a reasonable
or customary fee for the additional services performed in connection with such
request, and (ii) any related costs and expenses incurred by it. In no event
shall the Special Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
SECTION 3.31. Duties of Automobile Adviser.
(a) The Trustee, the Servicer and the Special Servicer will be
required to deliver to the Automobile Adviser all reports and other information
they receive with respect to any Automobile Property and Automobile Loan. The
Automobile Adviser will monitor such Automobile Loans and Automobile Properties
and will provide advice to the Servicer, the Special Servicer and the
Controlling Class with respect thereto, such advice to be given in accordance
with the Automobile Adviser Standard. The Special Servicer is required to
consult with the Automobile Adviser with respect to the preparation of each
Asset Status Report pertaining to any Automobile Loan or Automobile Property.
The Servicer and the Special
127
Servicer will be restricted from taking any material actions with respect to
Automobile Loans and the Automobile Properties without first providing notice
to, and consulting with, the Automobile Adviser. The Automobile Adviser in turn
will recommend to the Servicer or Special Servicer, as the case may be, with
notice to the Controlling Class, any action that should be taken (which
recommendation the Servicer or the Special Servicer, as applicable, may or may
not adopt) with respect to such Automobile Loan or Automobile Property, such
advice to be given in accordance with the Automobile Adviser Standard.
(b) All correspondence and communications with the Automobile
Adviser may be conducted with the officers or employees of the Automobile
Adviser whose names appear on a list of officers or employees furnished to the
Special Servicer by the Automobile Adviser, as such list may from time to time
be amended.
SECTION 3.32. Automobile Adviser; Elections.
(a) If an Automobile Loan becomes a Specially Serviced
Mortgage Loan or is placed on a "watch list" by a Rating Agency, the Holder or
Holders of the Regular Certificates (other than the Class X Certificates) with
an aggregate Certificate Balance equal to more than 50% of the aggregate
Certificate Balance of the Controlling Class will be required to elect, and
shall be deemed to have elected, the Automobile Adviser as their representative
as provided in this Section 3.32. Upon (i) the receipt by the Trustee of written
requests for an election of a Automobile Adviser from Certificateholders
representing more than 50% of the aggregate Certificate Balance of the
Certificates of the then Controlling Class, (ii) the resignation or removal of
the Person acting as Automobile Adviser, or (iii) a determination by the Trustee
that the Controlling Class has changed and the Automobile Loan is then a
Specially Serviced Mortgage Loan, an election of a successor Automobile Adviser
shall be held, commencing as soon as practicable thereafter. The Automobile
Adviser shall be elected for the purpose of advising the actions of the Servicer
and Special Servicer specified herein.
(b) After any such receipt, resignation, removal or
determination contemplated by Section 3.32(a), the Trustee shall call a meeting
of the Holders of the Controlling Class for the purpose of electing a Automobile
Adviser. Notice of any such meeting of such Holders shall be mailed or delivered
to each Holder of the Controlling Class by the Trustee not less than 10 days 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. Certificateholders
representing a majority (by Certificate Balance) of the Certificates of the
applicable Class or Classes, present in person or represented by proxy, shall
constitute a quorum for the nomination of a Automobile Adviser. At the meeting,
each such Holder shall be entitled to nominate one Person to act as Automobile
Adviser. The Trustee shall cause the election of the Automobile Adviser to be
held as soon thereafter as convenient.
(c) Each Holder of the Certificates of the Controlling Class
shall be entitled to vote in each election of the Automobile Adviser. The voting
in each election of the Automobile Adviser shall be in writing mailed, 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
128
(which have not been rescinded) from the Holders of Certificates representing
more than 50% of the aggregate Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Automobile Adviser. Such Person shall
promptly advise the Trustee of its address for delivery of notices purposes. In
the event that after the Closing Date a Automobile Adviser shall have resigned
and a successor Automobile Adviser shall not have been elected within 90 days,
the Servicer shall appoint a new Automobile Adviser, and notice of such
appointment, including the identity and address of the Automobile Adviser, shall
promptly be delivered to the Trustee by the Servicer.
Upon receipt of notice from either Rating Agency that, unless the
Automobile Adviser is replaced, the then-current ratings on the Certificates
will be qualified, withdrawn or downgraded, the Controlling Class shall appoint
a successor Automobile Adviser, or, if the Controlling Class fails to appoint
such successor within 90 days, the Servicer shall appoint a successor Automobile
Adviser, in either case subject to the restrictions set forth herein.
(d) The Automobile Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Trustee, of Holders of
Certificates representing more than 50% of the aggregate Certificate Balance of
the then Controlling Class. However, the Automobile Adviser cannot be removed
unless a successor Automobile Adviser has been appointed.
(e) The Trustee shall act as judge of each election of a
Automobile Adviser, and, absent manifest error, the determination of the results
of any such election by the Trustee shall be conclusive. Notwithstanding any
other provisions of this Section 3.32, the Trustee may make such reasonable
regulations as it may deem advisable for any such election. Upon election of a
successor Automobile Adviser, the Trustee shall promptly mail notice thereof by
first class mail to the Depositor, the Servicer, the Special Servicer, and each
of the Rating Agencies.
(f) The Automobile Adviser is required to be an entity that
has expertise in lending with respect to automobile dealerships and automobile
loans similar to the Automobile Properties and the Automobile Loans. Prior to
the appointment of any successor Automobile Adviser, the Trustee must receive
written confirmation from Fitch that the then-current ratings of the
Certificates will not be qualified, withdrawn or downgraded solely because of
the appointment of such successor Automobile Adviser.
SECTION 3.33. Limitation on Liability of Automobile Adviser.
The Automobile Adviser will have no responsibility or liability
to the Trust Fund or any Class of Certificateholders for any action taken, or
for refraining from the taking of any action, in good faith pursuant to the
Pooling and Servicing Agreement, or for errors in judgment; provided, that the
Automobile Adviser will not be protected against any liability which would
otherwise be imposed by reason of willful misconduct, bad faith, fraud or
negligence in the performance of duties or by reason of reckless disregard of
obligations or duties. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Automobile Adviser may
advise actions that favor the interests of one or more Classes of the
Certificates over other Classes of the Certificates, and that the Automobile
Adviser may have
129
special relationships and interests that conflict with those of Holders of some
Classes of the Certificates and, absent willful misconduct, bad faith, fraud or
negligence on the part of the Automobile Adviser, agree to take no action
against the Automobile Adviser or any of its officers, directors, employees,
principals or agents as a result of such special relationship or conflict.
ARTICLE IV.
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) (i) The initial Lower-Tier Balances, Lower-Tier Balances
as of any date subsequent to the first Distribution Date, and Pass-Through Rates
on each Class of Lower-Tier Regular Interests shall be as set forth in the
definition of "Lower-Tier Regular Interest" "Lower-Tier Balance" and
"Pass-Through Rate." The initial Middle-Tier Balances, Middle-Tier Balances as
of any date subsequent to the first Distribution Date, and the Pass-Through
Rates on each Class or Middle-Tier shall be derived from the Certificate
Balances and Pass-Through Rates on the Classes of Regular Certificates (other
than the Class X Certificates) in the manner set forth in the following table:
Middle-Tier Initial Middle- Middle-Tier Middle-Tier
Regular Interest Tier Balance Balance (1) Rate
-------------------- ----------------- ------------- -------------
Class A-1M $181,453,000 Class A-1 7.239%(2)
Class A-2M $723,242,000 Class A-2 7.239%(2)
Class B-M $62,280,000 Class B 7.239%(2)
Class C-M $22,945,000 Class C 7.239%(2)
Class D-K $62,280,000 Class D 7.239%(2)
Class E-K $81,947,000 Class E 7.239%(2)
Class F-K $19,668,000 Class F 7.239%(2)
Class G-K $68,835,000 Class G 7.239%(2)
Class H-K $13,112,000 Class H 7.239%(2)
Class J-K $26,223,000 Class J 7.239%(2)
Class K-K $19,667,000 Class K 7.239%(2)
Class L-K $29,501,573 Class L 7.239%(2)
(1) The designations ▇-▇, ▇-▇, ▇, ▇, ▇, ▇, ▇, ▇, ▇, ▇, ▇ and L in this
column refer to 100% of the Certificate Balance of the Class A-1, Class
A-2, Class B, Class C, Class D, Class
130
E, Class F, Class G, Class H, Class J, Class K and Class L Certificates,
respectively, as of any applicable date.
(2) Interest will accrue on the Middle-Tier Regular Interests at the
weighted average of the Lower Tier Regular Interests' Pass-Through Rates
(weighted on the basis of their respective Principal Balances), which
shall equal the Weighted Average Net Mortgage Pass-Through Rate.
(ii) On each Distribution Date, amounts held in the
Distribution Account shall be withdrawn (to the extent of the Available Funds,
including or reduced by, to the extent required by Section 3.05(c), the Interest
Reserve Amount) in the case of all Classes of Lower-Tier Regular Interests (such
amount, the "Lower-Tier Distribution Amount") and distributed on the Lower-Tier
Regular Interests as follows:
(1) to pay interest to the Middle-Tier REMIC in respect of the
various Lower-Tier Regular Interests, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest for each such
Lower-Tier Regular Interest for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(2) to pay principal to the Middle-Tier REMIC in respect of
the various Lower-Tier Regular Interests, up to an amount equal to, and pro rata
in accordance with, in the case of each such Lower-Tier Regular Interest for
such Distribution Date, the excess, if any, of the Lower-Tier Balance of such
Lower-Tier Regular Interest outstanding immediately prior to such Distribution
Date, over the Stated Principal Balance of the related Mortgage Loan, REO Loan
or, if applicable, a Replacement Mortgage Loan, as the case may be, that will be
outstanding immediately following such Distribution Date;
(3) to reimburse the Middle-Tier REMIC for any Realized Losses
previously allocated to the various Lower-Tier Regular Interests, up to an
amount equal to, and pro rata in accordance with, the Loss Reimbursement Amount
for each such Lower-Tier Regular Interest immediately prior to such Distribution
Date.
On each Distribution Date, the Trustee shall pay to the Holders
of the Class LR Certificates, pro rata in accordance with their Percentage
Interests therein, that portion, if any, of Available Funds for such date that
has not otherwise been paid to the Middle-Tier REMIC in respect of Lower-Tier
Regular Interests pursuant to the foregoing provisions of this Section
4.01(a)(ii).
On each Distribution Date, the Trustee shall apply amounts
related to 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 the Middle-Tier REMIC in respect of the Lower-Tier Regular Interest
that relates to the Mortgage Loan or REO Loan, as the case may be, as to which
such Prepayment Premium was received.
131
All amounts (other than additional interest in the form of
amounts relating to Prepayment Premiums) paid to the Middle-Tier REMIC in
respect of the Lower-Tier Regular Interests pursuant to this Section 4.01(a)(ii)
is hereinafter referred to as the "Lower -Tier REMIC Distribution Amount" for
such date. The Trustee shall deposit the Lower-Tier Distribution Amount and
Prepayment Premiums distributed to the Middle-Tier REMIC pursuant to this
Section 4.01(a)(ii) in the Middle-Tier Distribution Account.
(iii) On each Distribution Date, amounts held in the Middle-Tier
Distribution Account as the Middle-Tier Distribution Amount shall be withdrawn
and distributed on the Middle-Tier Regular Interests as follows:
(1) to pay interest to the Upper-Tier REMIC in respect of all
Middle-Tier Regular Interests up to an amount equal to all Uncertificated
Distributable Interest in respect of such Middle-Tier REMIC Regular Interests
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates with such payments allocated among the Middle-Tier Regular
Interests such that remaining amounts, if any, of unpaid interest on each such
Middle-Tier Regular Interest will equate to the remaining unpaid accrued
interest on the related Class of Principal Balance Certificates or Class X
Component outstanding after all subsequent adjustments made on such Distribution
Date under Section 4.01(b) below;
(2) to pay principal to the Upper-Tier REMIC in respect of all
Middle-Tier Regular Interests apportioned as payment of Middle-Tier Balance
among such classes of Middle-Tier Regular Interests such that the remaining
Middle-Tier Balance of each such class will equal the then outstanding
Certificate Balance of the corresponding Class of Principal Balance Certificates
after all subsequent adjustments made on such Distribution Date under Section
4.01(b) below (other than payments thereunder in reimbursement of any Realized
Losses); and
(3) to reimburse the Upper-Tier REMIC for any Realized Losses
previously allocated to the Middle-Tier Regular Interests, apportioned as
payment of Middle-Tier Balance among the classes of Middle-Tier Regular
Interests such that the remaining Middle-Tier Balance of each such class will
equal the Certificate Balance of the related Class of Principal Balance
Certificates after all subsequent payments made on such Distribution Date under
Section 4.01(b) below.
On each Distribution Date, the Trustee shall pay to the Holders
of the Class MR Certificates, in accordance with Section 4.01(b), that portion,
if any, of the Middle-Tier Distribution Amount for such date that has not
otherwise been paid to the Upper-Tier REMIC in respect of Middle-Tier Regular
Interests pursuant to the foregoing provisions of this Section 4.01(a).
On each Distribution Date, the Trustee shall apply amounts
related to each Prepayment Premium then on deposit in the Middle-Tier
Distribution Account and received during or prior to the related Collection
Period, to pay additional interest to the Upper-Tier REMIC in respect of the
Middle-Tier Regular Interests among the Middle-Tier Regular Interests
132
in an amount with respect to each Middle-Tier Regular Interest equal to
the amount allocable to the related Class of Principal Balance
Certificates and Class X Component outstanding after all subsequent
adjustments made on such Distribution Date under Section 4.01(b) below.
All amounts (other than additional interest in the form of
amounts relating to Prepayment Premiums) paid to the Upper-Tier REMIC in respect
of the Middle-Tier Regular Interests pursuant to this Section 4.01(a)(iii) is
hereinafter referred to as the "Middle-Tier Distribution Amount" for such date.
The Trustee shall deposit the Middle-Tier Distribution Amount and any Prepayment
Premiums distributed to the Upper-Tier REMIC pursuant to this Section
4.01(a)(iii) in the Upper-Tier Distribution Account.
(b) On each Distribution Date, the Trustee shall withdraw from
the Upper-Tier Distribution Account the amounts deposited in the Upper-Tier
Distribution Account in respect of such Distribution Date pursuant to Section
4.01(a)(iii), and distribute such amount to Certificateholders in the amounts
and in the order of priority set forth below:
(i) First, pro rata, in respect of interest, to the Class
A-1, Class A-2 and Class X Certificates, up to an amount
equal to the aggregate Interest Accrual Amount of such
Classes;
(ii) Second, pro rata, to the Class A-l, Class A-2 and
Class X Certificates, in respect of interest, up to an
amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Classes;
(iii) Third, prior to the Crossover Date, to the Class A-l
Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution
Amount until the Certificate Balance thereof is reduced to
zero;
(iv) Fourth, prior to the Crossover Date, to the Class A-2
Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(v) Fifth, on and after the Crossover Date, first to the
Class A-l and Class A-2 Certificates, pro rata, in
reduction of the Certificate Balances thereof, an amount
equal to the Principal Distribution Amount less amounts of
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balances thereof are
reduced to zero; and second, to the Class A-1 and Class
A-2 Certificates, pro rata, to the extent not distributed
pursuant to all prior clauses for unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated
to such Classes;
133
(vi) Sixth, to the Class B Certificates in respect of
interest, up to an amount equal to the aggregate Interest
Accrual Amount of such Class;
(vii) Seventh, to the Class B Certificates in respect of
interest, up to an amount equal to the aggregate unpaid
Class Interest Shortfalls previously allocated to such
Class;
(viii) Eighth, to the Class B Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is
reduced to zero;
(ix) Ninth, to the Class B Certificates, to the extent not
distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized
Losses previously allocated to such Class;
(x) Tenth, to the Class C Certificates in respect of
interest, up to an amount equal to the aggregate Interest
Accrual Amount of such Class;
(xi) Eleventh, to the Class C Certificates in respect of
interest, up to an amount equal to the aggregate unpaid
Class Interest Shortfalls previously allocated to such
Class;
(xii) Twelfth, to the Class C Certificates in reduction of
the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, less the amount of the
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xiii) Thirteenth, to the Class C Certificates, to the
extent not distributed pursuant to all prior clauses, for
the unreimbursed amounts of Realized Losses, if any, up to
an amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xiv) Fourteenth, to the Class D Certificates in respect
of interest, up to an amount equal to the aggregate
Interest Accrual Amount of such Class;
(xv) Fifteenth, to the Class D Certificates in respect of
interest, up to an amount equal to the aggregate unpaid
Class Interest Shortfalls previously allocated to such
Class;
(xvi) Sixteenth, to the Class D Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is
reduced to zero;
134
(xvii) Seventeenth, to the Class D Certificates, to the
extent not distributed pursuant to all prior clauses, for
the unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xviii)Eighteenth, to the Class E Certificates in respect
of interest, up to an amount equal to the aggregate
Interest Accrual Amount of such Class;
(xix) Nineteenth, to the Class E Certificates in respect
of interest, up to an amount equal to the aggregate unpaid
Class Interest Shortfalls previously allocated to such
Class;
(xx) Twentieth, to the Class E Certificates in reduction
of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, less the amount of the
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xxi) Twenty-first, to the Class E Certificates, to the
extent not distributed pursuant to all prior clauses, for
the unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxii) Twenty-second, to the Class F Certificates in
respect of interest, up to an amount equal to the
aggregate Interest Accrual Amount of such Class;
(xxiii)Twenty-third, to the Class F Certificates in
respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously
allocated to such Class;
(xxiv) Twenty-fourth, to the Class F Certificates in
reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount, less the
amount of the Principal Distribution Amount distributed
pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxv) Twenty-fifth, to the Class F Certificates, to the
extent not distributed pursuant to all prior clauses, for
the unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxvi) Twenty-sixth, to the Class G Certificates in
respect of interest, up to an amount equal to the
aggregate Interest Accrual Amount of such Class;
135
(xxvii)Twenty-seventh, to the Class G Certificates in
respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously
allocated to such Class;
(xxviii) Twenty-eighth, to the Class G Certificates, in
reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount less amounts of
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xxix) Twenty-ninth, to the Class G Certificates, to the
extent not distributed pursuant to all prior clauses, for
the unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxx) Thirtieth, to the Class H Certificates in respect of
interest, up to an amount equal to the aggregate Interest
Accrual Amount of such Class;
(xxxi) Thirty-first, to the Class H Certificates in
respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously
allocated to such Class;
(xxxii)Thirty-second, to the Class H Certificates, in
reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount less amounts of
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xxxiii) Thirty-third, to the Class H Certificates, to the
extent not distributed pursuant to all prior clauses, for
the unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxxiv)Thirty-fourth, to the Class J Certificates in
respect of interest, up to an amount equal to the
aggregate Interest Accrual Amount of such Class;
(xxxv) Thirty-fifth, to the Class J Certificates in
respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously
allocated to such Class;
(xxxvi)Thirty-sixth, to the Class J Certificates, in
reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount less amounts of
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balance of such Class
is reduced to zero;
136
(xxxvii) Thirty-seventh, to the Class J Certificates, to
the extent not distributed pursuant to all prior clauses,
for the unreimbursed amounts of Realized Losses, if any,
an amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xxxviii) Thirty-eighth, to the Class K Certificates in
respect of interest, up to an amount equal to the
aggregate Interest Accrual Amount of such Class;
(xxxix)Thirty-ninth, to the Class K Certificates in
respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously
allocated to such Class;
(xl) Fortieth, to the Class K Certificates in reduction of
the Certificate Balances thereof, an amount equal to the
Principal Distribution Amount less amounts of the
Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xli) Forty-first, to the Class K Certificates, to the
extent not distributed pursuant to all prior clauses, for
the unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class;
(xlii) Forty-second, to the Class L Certificates in
respect of interest, up to an amount equal to the
aggregate Interest Accrual Amount of such Class;
(xliii)Forty-third, to the Class L Certificates in respect
of interest, up to an amount equal to the aggregate unpaid
Class Interest Shortfalls previously allocated to such
Class;
(xliv) Forty-fourth, to the Class L Certificates in
reduction of the Certificate Balances thereof, an amount
equal to the Principal Distribution Amount less amounts of
the Principal Distribution Amount distributed pursuant to
all prior clauses, until the Certificate Balance of such
Class is reduced to zero;
(xlv) Forty-fifth, to the Class L Certificates, to the
extent not distributed pursuant to all prior clauses, for
the unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Class; and
(xlvi) Forty-sixth, to the Class R Certificates.
137
All references to pro rata in the preceding clauses with respect
to interest and Class Interest Shortfalls shall mean pro rata based on the
amount distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) (i) On each Distribution Date, following the distribution
from the Middle-Tier Distribution Account in respect of the Middle-Tier Regular
Interests pursuant to Section 4.0l(a)(ii), the Paying Agent shall make
distributions of any Prepayment Premiums with respect to any Principal
Prepayments received in the related Collection Period from amounts deposited in
the Upper-Tier Distribution Account pursuant to Section 3.05(d) in the following
amounts (as additional interest payments and not as payments of interest and
principal due thereunder) and order of priority, with respect to the
Certificates of each Class in each case to the extent remaining amounts of
Prepayment Premiums are available therefor:
(1)first, to the Holders of the Class A, Class B, Class C, Class
D, Class E and Class F Certificates in an aggregate amount up
to the product of (a) such Prepayment Premiums, (b) the
Discount Rate Fraction and (c) the Principal Allocation
Fraction of each such Class; and
(2)second, to the Holders of the Class X Certificates.
Prepayment Premiums will only be distributed on a Distribution
Date (a) if the respective Certificate Balance or Notional Balance of the
related Class or Classes is greater than zero on the last Business Day of the
Interest Accrual Period ending immediately prior to such Distribution Date and
(b) if the amount computed pursuant to the related clause above is greater than
zero.
Notwithstanding the foregoing, Prepayment Premiums shall be
distributed on any Distribution Date only to the extent they are received in
respect of the Mortgage Loans in the related Collection Period.
(ii) On each Distribution Date, prior to the distributions to
the Certificates from the Upper-Tier Distribution Account pursuant to Section
4.01(c)(i), Prepayment Premiums shall be distributed to the Lower-Tier Regular
Interests from the Distribution Account and to the Middle-Tier Regular Interests
from the Middle Tier Distribution Account in proportion to the principal
distributable thereon in accordance with Section 4.01(a).
(d) (i) On each Distribution Date, the Net Default Interest
distributable to each Class Q-l Certificate, as determined pursuant to Section
3.05(e), for such Distribution Date shall be distributed to the Class Q-l
Certificates from amounts on deposit in the Default Interest Distribution
Account.
138
(ii) On any applicable Distribution Date, Excess Interest for
such Distribution Date shall be distributed to the Class Q-2 Certificates from
amounts on deposit in the Excess Interest Distribution Account.
(e) The Certificate Balances of each Class of Regular
Certificates (other than the Class X Certificates) and, correlatively, the
Notional Amount of the Class X Component related to such Class of Regular
Certificates will be reduced without distribution on any Distribution Date as a
write-off to the extent of any Realized Losses allocated to such Class with
respect to such date. Any such write-offs will be applied to Classes of Regular
Certificates in the following order, in each case until the Certificate Balance
of such Class is reduced to zero: first, to the Class L Certificates; second, to
the Class K Certificates; third, to the Class J Certificates; fourth, to the
Class H Certificates; fifth, to the Class G Certificates; sixth, to the Class F
Certificates; seventh, to the Class E Certificates; eighth, to the Class D
Certificates; ninth, to the Class C Certificates; tenth, to the Class B
Certificates; and finally, to the Class A-1 and Class A-2 Certificates, pro
rata, based on their respective Certificate Balances. Any amounts recovered in
respect of amounts previously written off as Realized Losses shall be
distributed to the Classes of Certificates described above in reverse order of
allocation of Realized Losses thereto in accordance with Section 4.01(b).
Shortfalls in Available Funds due to extraordinary expenses of the Trust Fund
(including indemnification expenses), a reduction in the Mortgage Rate on a
Mortgage Loan by a bankruptcy court pursuant to a plan of reorganization or
pursuant to any of its equitable powers, or otherwise, shall be allocated in the
same manner as Realized Losses.
Realized Losses and such other amounts described above which are
applied to each Class of Certificates will be allocated to reduce the Lower-Tier
Balance of the Lower-Tier Regular Interests and the Middle-Tier Balance of the
related Middle-Tier Regular Interests in the same manner as principal is
allocated thereto pursuant to Section 4.01(a)(ii) and 4.01(a)(iii).
(f) All amounts distributable to a Class of Certificates,
Middle-Tier Regular Interests or Lower-Tier Regular Interests pursuant to this
Section 4.01 on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in each such Class based on their respective Percentage
Interests. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date, by wire transfer of immediately available funds to the account of such
Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
(g) Except as otherwise provided in Section 9.01 with respect
to an Anticipated Termination Date, the Trustee shall, no later than the
fifteenth day of the month in the month preceding the month in which the final
distribution with respect to any Class of
139
Certificates is expected to be made, mail to each Holder of such Class of
Certificates on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon
information previously provided to it that the
final distribution with respect to such Class of
Certificates will be made on such Distribution
Date, but only upon presentation and surrender of
such Certificates at the office of the Trustee
therein specified, and
(B) if such final distribution is made on such
Distribution Date, no interest shall accrue on such
Certificates from and after such Distribution Date;
provided, however, that the Class Q-l, Class Q-2, Class R, Class MR and Class LR
Certificates shall remain outstanding until there is no other Class of
Certificates, Middle-Tier Regular Interests or Lower-Tier Regular Interests
outstanding.
Any funds not distributed to any Holder or Holders of such
Classes of Certificates on such Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held in trust for the benefit of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.0l(g) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Holders to surrender their Certificates
for cancellation to receive the final distribution with respect thereto. If
within one year after the second notice not all of such Certificates shall have
been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering Holders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Holders shall be paid out of such
funds. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Holder on any amount held in trust hereunder or by the Trustee
as a result of such Holder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(g). Any such amounts
transferred to the Trustee may be invested in Permitted Investments and all
income and gain realized from investment of such funds shall be for the benefit
of the Trustee.
(h) [Intentionally Left Blank].
(i) [Intentionally Left Blank].
140
(j) Shortfalls in Available Funds resulting from Excess
Prepayment Interest Shortfalls shall be allocated to and be deemed distributed
to, each Class of Certificates, pro rata, based upon the Interest Accrual Amount
distributable to each such Class prior to reduction by such Excess Prepayment
Interest Shortfalls. Servicer Prepayment Interest Shortfalls shall be deposited
by the Servicer into the Collection Account on or prior to the Servicer
Remittance Date.
SECTION 4.02. Statements to Certificateholders; Reports by
Trustee; Other Information Available to the
Holders and Others.
(a) On each Distribution Date, based upon the information set
forth in the Servicer Remittance Report prepared by the Servicer and the other
reports prepared by the Servicer and Special Servicer relating to such
Distribution Date, upon which information the Trustee may conclusively rely, and
only to the extent such information is provided to the Trustee by the Servicer
or Special Servicer, the Trustee shall prepare and forward, or shall cause the
Paying Agent to prepare and forward, by first class mail to each Holder of a
Certificate, with copies to the Depositor, the Servicer, the Special Servicer,
the Automobile Adviser, each Underwriter and each Rating Agency a written report
(a "Distribution Date Statement") setting forth the following information:
(i) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates
(other than the Class X, Class Q-1, Class Q-2, Class R, Class MR and
Class LR Certificates) applied to reduce the respective Certificate
Balance thereof;
(ii) the aggregate amount of the distribution to be made
on such Distribution Date to the Holders of each Class of Certificates
allocable to (A) the Interest Accrual Amount and/or (B) Prepayment
Premiums;
(iii) the aggregate Certificate Balance or aggregate
Notional Balance, as the case may be, of each Class of Certificates,
before and after giving effect to the distributions made on such
Distribution Date, separately identifying any reduction in the aggregate
Certificate Balance (or, if applicable, the aggregate Notional Balance)
of each such Class due to Realized Losses and/or additional Trust Fund
expenses;
(iv) the Pass-Through Rate for each Class of Certificates
applicable to such Distribution Date;
(v) the number of outstanding Mortgage Loans and the
aggregate unpaid principal balance of the Mortgage Loans at the close of
business on the related Due Date;
(vi) the number and aggregate unpaid principal balance of
Mortgage Loans (A) delinquent 30 days, (B) delinquent 60 days, (c)
delinquent 90 days or more, (D) that are Specially Serviced Mortgage
Loans that are not delinquent, or (E) current, but
141
not Specially Serviced, as to which foreclosure proceedings have been
commenced, but not REO;
(vii) with respect to any REO Mortgage Loan as to which
the related Mortgaged Property became an REO Property during the
preceding calendar month, the city, state, property type, latest Debt
Service Coverage Ratio, Stated Principal Balance and the unpaid
principal balance of such Mortgage Loan as of the date it became an REO
Mortgage Loan;
(viii) as to any Mortgage Loan repurchased by the Mortgage
Loan Seller or otherwise liquidated or disposed of during the related
Collection Period, (A) the Loan Number of the related Mortgage Loan and
(B) the amount of proceeds of any repurchase of a Mortgage Loan,
Liquidation Proceeds and/or other amounts, if any, received thereon
during the related Collection Period and the portion thereof included in
the Available Funds for such Distribution Date;
(ix) with respect to any REO Property included in the
Trust Fund at the close of business on the related Due Date (A) the Loan
Number of the related Mortgage Loan, (B) the value of such REO Property
based on the most recent appraisal or valuation, and (c) the aggregate
amount of Net Income and other revenues collected by the Special
Servicer with respect to such REO Property during the related Collection
Period and the portion thereof included in the Available Funds for such
Distribution Date;
(x) with respect to any REO Property sold or otherwise
disposed of during the related Collection Period and for which a Final
Recovery Determination has been made, (A) the Loan Number of the related
Mortgage Loan, (B) the Realized Loss attributable to such Mortgage Loan,
(c) the amount of sale proceeds and other amounts, if any, received in
respect of such REO Property during the related Collection Period and
the portion thereof included in the Available Funds for such
Distribution Date and (D) the date of the Final Recovery Determination;
(xi) the aggregate amount of Principal Prepayments (other
than Liquidation Proceeds and Insurance Proceeds) made during the
related Collection Period and any Excess Prepayment Interest Shortfall
for such Distribution Date;
(xii) the amount of Property Advances and P&I Advances
outstanding (net of reimbursed Advances) which have been made by the
Servicer, the Special Servicer the Trustee, or the Fiscal Agent in the
aggregate and by Mortgaged Property or Mortgage Loan, as the case may
be;
(xiii) the aggregate amount of Servicing Fees, Special
Servicing Fees, Workout Fees, Liquidation Fees and other servicing
compensation retained by or paid to the Servicer and the Special
Servicer during the related Collection Period;
(xiv) the amount of any Appraisal Reduction Amounts
allocated during the related Collection Period on a loan-by-loan basis;
the total Appraisal Reduction
142
Amounts allocated during the related Collection Period; and the total
Appraisal Reduction Amounts as of such Distribution Date on a
loan-by-loan basis; and
(xv) the amount of Realized Losses, Trust Fund expenses
and Class Interest Shortfalls, if any, incurred with respect to the
Mortgage Loans during the related Collection Period and in the aggregate
for all prior Collection Periods (except to the extent reimbursed or
paid).
In the case of information furnished pursuant to subclauses (i),
(ii) and (iii) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall forward to each
Holder of a Class R, Class MR or Class LR Certificate a copy of the reports
forwarded to the other Certificateholders on such Distribution Date and a
statement setting forth the amounts, if any, actually distributed with respect
to the Class R, Class MR or Class LR Certificates on such Distribution Date.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that it provided substantially comparable information pursuant to any
requirements of the Code as from time to time in force.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items provided to Certificateholders pursuant to Section
4.02(a)(ii) above and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates held by Persons other than Holders exempted from the reporting
requirements and information regarding the expenses of the Trust. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
(b) On each Distribution Date, the Trustee shall deliver or
cause to be delivered by first class mail or overnight courier or by electronic
means (provided, however, that the Trustee will provide Certificateholders with
a written copy of such report upon written request) to each Certificateholder,
each prospective investor in a Certificate (upon request), the Depositor, the
Servicer, the Special Servicer, the Automobile Adviser, each Underwriter, and
each Rating Agency a report containing information regarding the Mortgage Loans
as of the end of the related Collection Period (after giving effect to Principal
Prepayments and other collections of principal required to be distributed on
such Distribution Date), which report shall contain substantially the categories
of information regarding the Mortgage Loans set forth in the Prospectus under
the caption "Description of the Mortgage Pool--Certain Terms and Conditions of
the Mortgage Loans" (calculated, where applicable, on the basis of the most
recent relevant information provided by the Borrowers to the Servicer or the
Special Servicer, as the case may be, and by the Servicer or the Special
Servicer, as the case may be, to the Trustee), which shall
143
also include a loan-by-loan listing (in descending balance order) showing Loan
Number, property type, location, unpaid principal balance, Mortgage Rate,
paid-through date, maturity date, net interest portion of the Monthly Payment,
principal portion of the Monthly Payment and any Prepayment Premium.
(c) On each Distribution Date beginning in May 1999, the
Trustee shall deliver or shall cause to be delivered by first class mail,
overnight courier or other electronic means (provided, however, that the Trustee
will provide Certificateholders with a written copy of such report upon written
request) to each Certificateholder, each prospective investor in a Certificate
(upon request), Beneficial Owner (if known), the Depositor, the Automobile
Adviser, 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 Servicer has
determined are in jeopardy of becoming Specially Serviced Mortgage Loans)
provided by the Servicer to the Trustee pursuant to Section 3.13(c) and 3.13(e)
on the 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 Servicer
at least four Business Days prior to the related Servicer Remittance Date.
Absent manifest error, (i) none of the Servicer, the Special Servicer or the
Trustee shall be responsible for the accuracy or completeness of any information
supplied to it by a Borrower or third party that is included in any reports,
statements, materials or information prepared or provided by the Servicer, the
Special Servicer or the Trustee, as applicable, (ii) the Trustee shall not be
responsible for the accuracy or completeness of any information supplied to it
by the Servicer or Special Servicer that is included in any reports, statements,
materials or information prepared or provided by the Servicer or Special
Servicer, as applicable, and (iii) the Trustee shall be entitled to conclusively
rely upon the Servicer's reports and the Special Servicer's reports without any
duty or obligation to recompute, verify or re-evaluate any of the amounts or
other information stated therein.
Commencing in May 1999, the information contained in the reports
in the preceding paragraph of this Section 4.02(c) shall be made available to
the Trustee electronically by the Servicer in the form of the standard CSSA loan
file, CSSA property file and CSSA reports 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, the Automobile Adviser, 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 upon request shall deliver a copy of each Operating
Statement Analysis Report and Operating Statement Analysis Worksheet that it
receives from the Servicer to the Depositor, the Automobile Adviser, each
Underwriter, the Automobile Adviser, the Directing Certificateholder, each
Rating Agency the Certificateholders and the Special Servicer promptly after its
receipt thereof. Upon request, the Trustee shall also make available any
Operating Statement Analysis Worksheet for a Mortgaged Property or REO Property
in the possession of the Trustee to any potential investor in the Certificates.
144
(d) The Trustee shall make available at its offices, during
normal business hours, upon not less than two Business Day's prior notice, for
review by any Certificateholder, any prospective investor in a Certificate, the
Depositor, the Servicer, the Special Servicer, the Automobile Adviser, either
Rating Agency, and any other Person to whom the Depositor in its sole judgment,
deems that such disclosure is appropriate, originals or copies of documents
relating to the Mortgage Loans and any related REO Properties to the extent in
its possession, including, without limitation, the following items (except to
the extent prohibited by applicable law): (i) this Agreement and any amendments
thereto; (ii) all Distribution Date Statements delivered to the
Certificateholders since the Closing Date; (iii) all annual Officers'
Certificates and all accountants' reports delivered by the Servicer or Special
Servicer to the Trustee since the Closing Date regarding compliance with the
relevant agreements; (iv) the most recent property inspection report prepared by
or on behalf of the Servicer or the Special Servicer in respect of each
Mortgaged Property; (v) the most recent annual (or more frequent, if available)
operating statements, rent rolls (to the extent such rent rolls have been made
available by the related Borrower) and/or lease summaries and retail sales
information, if any, collected by or on behalf of the Servicer or the Special
Servicer in respect to each Mortgaged Property; (vi) any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into by the
Servicer and/or the Special Servicer; and (vii) any and all Officers'
Certificates and other evidence delivered to or by the Trustee to support the
Servicer's, the Special Servicer's, the Trustee's or the Fiscal Agent's, as the
case may be, determination that any Advance, if made, would be a Nonrecoverable
Advance. Copies of any and all of the foregoing items will be available from the
Trustee upon request. The Trustee will be permitted to require payment by the
requesting party (other than a Rating Agency) of a sum sufficient to cover the
reasonable costs and expenses of making such information available and providing
any copies thereof The Trustee's obligation under this Section 4.02(d) to make
available any document is subject to the Trustee's receipt of such document.
For investors that have obtained an account number on the
Trustee's Automatic Statements Accessed by Phone ("ASAP") System, information in
the Distribution Date Statements referred to in Section 4.02(a) may be obtained
from the Trustee via automated facsimile by placing a telephone call to (714)
▇▇▇-▇▇▇▇ and following the voice prompts to request "statement number 388."
Account numbers on the ASAP System may be obtained by calling the same telephone
number and following the voice prompts for obtaining account numbers.
Separately, bond factor information may be obtained from the Trustee by calling
(▇▇▇) ▇▇▇-▇▇▇▇. In addition, if the Depositor so directs the Trustee, and on
terms acceptable to the Trustee, the Trustee will make available through its
electronic bulletin board system, on a confidential basis, certain information
related to the Loans. The bulletin board is located at (▇▇▇) ▇▇▇-▇▇▇▇. Investors
that have an account on the bulletin board may retrieve the loan level data file
for each transaction in the directory. An account number may be obtained by
typing "new" upon logging into the bulletin board. A directory has been set up
on the bulletin board in which an electronic file is stored containing monthly
servicer data. All files are compressed before being put into the directory and
are password protected. Passwords to each file will be released by the Trustee.
Additionally, certain information regarding the Loans will be made available at
the website maintained by LaSalle National Bank at ▇▇▇.▇▇▇▇▇▇.▇▇▇. and, after
the Certificates
145
have been sold by the Underwriters, at the website maintained by the Servicer at
▇▇▇.▇▇▇▇▇.▇▇▇ or such other mechanism as the Servicer may have in place from
time to time.
(e) On or within two Business Days following each Distribution
Date, the Trustee shall prepare and furnish to the Financial Market Publisher
and each Underwriter, using the format and media mutually agreed upon by the
Trustee, the Financial Market Publisher, each Underwriter and the Depositor, the
following information regarding each Mortgage Loan and any other information
reasonably requested by each Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.02 to the extent it receives the necessary
underlying information from the Servicer or the Special Servicer and shall not
be liable for any failure to deliver any thereof on the prescribed due dates, to
the extent caused by failure to receive timely such underlying information.
Nothing herein shall obligate the Trustee, the Servicer or the Special Servicer
to violate any applicable law prohibiting disclosure of information with respect
to any Borrower and the failure of the Trustee, the Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereof.
SECTION 4.03. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying
Agent shall comply with all federal withholding requirements with respect to
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is a non-U.S. Person that
has furnished or caused to be furnished (i) an effective Form W-8 or Form W-9 or
an acceptable substitute form or a successor form and who is not a "10-percent
shareholder" within the meaning of Code Section 871(h)(3)(B) or a "controlled
foreign corporation" described in Code Section 881(c)(3)(c) with respect to the
Trust Fund or the Depositor, or (ii) an effective Form 4224 or an acceptable
substitute form or a successor form. In the event the Paying Agent or its agent
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC, the
Middle-Tier REMIC and the Lower-Tier REMIC shall constitute, and that the
affairs of each of the Upper-
146
Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC shall be conducted so
as to qualify it as, a "real estate mortgage investment conduit" as defined in,
and in accordance with, the REMIC Provisions at all times any Certificates are
outstanding, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC, the Middle-Tier REMIC and the
Lower-Tier REMIC and shall on behalf of each of the Upper-Tier REMIC, the
Middle-Tier REMIC and the Lower-Tier REMIC: (i) prepare, sign and file, or cause
to be prepared and filed, all required Tax Returns for each of the Upper-Tier
REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC, the Middle-Tier REMIC and the
Lower-Tier REMIC as required by the REMIC Provisions and other applicable
federal, state or local income tax laws; (ii) make an election, on behalf of
each of the Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC, to
be treated as a REMIC on Form 1066 for its first taxable year, in accordance
with the REMIC Provisions; (iii) prepare and forward, or cause to be prepared
and forwarded, to the Certificateholders and the Internal Revenue Service and
applicable state and local tax authorities all information reports as and when
required to be provided to them in accordance with the REMIC Provisions of the
Code and Section 4.07; (iv) if the filing or distribution of any documents of an
administrative nature not addressed in clauses (i) through (iii) of this Section
4.04(a) is then required by the REMIC Provisions in order to maintain the status
of the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC as a
REMIC or is otherwise required by the Code, prepare, sign and file or
distribute, or cause to be prepared and signed and filed or distributed, such
documents with or to such Persons when and as required by the REMIC Provisions
or the Code or comparable provisions of state and local law; (v) within thirty
days of the Closing Date, furnish or cause to be furnished to the Internal
Revenue Service, on Form 8811 or as otherwise may be required by the Code, the
name, title and address of the person that the Holders of the Certificates may
contact for tax information relating thereto (and the Trustee shall act as the
representative of each of the Upper-Tier REMIC, the Middle-Tier REMIC and the
Lower-Tier REMIC for this purpose), together with such additional information as
may be required by such Form, and shall update such information at the time or
times and in the manner required by the Code (and the Depositor agrees within 10
Business Days of the Closing Date to provide any information reasonably
requested by the Servicer, the Special Servicer or the Trustee and necessary to
make such filing); and (vi) maintain such records relating to each of the
Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC as may be
necessary to prepare the foregoing returns, schedules, statements or
information, such records, for federal income tax purposes, to be maintained on
a calendar year and on an accrual basis. The Holder of the largest Percentage
Interest in the Class R, Class MR or Class LR Certificates shall be the tax
matters person of the Upper-Tier REMIC or the Lower-Tier REMIC, respectively,
pursuant to Treasury Regulations Section 1.860F-4(d). If more than one Holder
shall hold an equal Percentage Interest in the Class R, Class MR or Class LR
Certificates larger than that held by any other Holder, the first such Holder to
have acquired such Class R, Class MR or Class LR Certificates shall be such tax
matters person. The Trustee shall act as attorney-in-fact and agent for the tax
matters person of each of the Upper-Tier REMIC and Lower-Tier REMIC, and each
Holder of a Percentage Interest in the Class R, Class MR or Class LR
Certificates, by acceptance hereof, is deemed to have consented to the
147
Trustee's appointment in such capacity and agrees to execute any documents
required to give effect thereto, and any fees and expenses incurred by the
Trustee in connection with any audit or administrative or judicial proceeding
shall be paid by the Trust Fund. The Trustee shall not intentionally take any
action or intentionally omit to take any action if, in taking or omitting to
take such action, the Trustee knows that such action or omission (as the case
may be) would cause the termination of the REMIC status of the Upper-Tier REMIC,
the Middle-Tier REMIC or the Lower-Tier REMIC or the imposition of tax on the
Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC (other than a
tax on income expressly permitted to be received by the terms of this
Agreement). Notwithstanding any provision of this paragraph to the contrary, the
Trustee shall not be required to take any action that the Trustee in good faith
believes to be inconsistent with any other provision of this Agreement, nor
shall the Trustee be deemed in violation of this paragraph if it takes any
action expressly required or authorized by any other provision of this
Agreement, and the Trustee shall have no responsibility or liability with
respect to any act or omission of the Depositor, the Servicer or the Special
Servicer which does not enable the Trustee to comply with any of clauses (i)
through (vi) of the fifth preceding sentence or which results in any action
contemplated by clauses (i) or (ii) of the next succeeding sentence. In this
regard the Trustee shall (i) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" within the meaning of Code Section
860F(a), unless the party seeking such action shall have delivered to the
Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (A) result in a taxable gain, (B) otherwise subject the Upper-Tier
REMIC, the Middle-Tier REMIC or Lower-Tier REMIC to tax (other than a tax at the
highest marginal corporate tax rate on net income from foreclosure property), or
(c) cause any of the Upper-Tier REMIC, the Middle-Tier REMIC or Lower-Tier REMIC
to fail to qualify as a REMIC; and (ii) exercise reasonable care not to allow
the Trust Fund to receive any contributions, or any income from the performance
of services or from assets not permitted under the REMIC Provisions to be held
by a REMIC (provided, however, that the receipt of any income expressly
permitted or contemplated by the terms of this Agreement shall not be deemed to
violate this clause). None of the Servicer, the Special Servicer and the
Depositor shall be responsible or liable (except in connection with any act or
omission referred to in the two preceding sentences or the following sentence)
for any failure by the Trustee to comply with the provisions of this Section
4.04. The Depositor, the Servicer and the Special Servicer shall cooperate in a
timely manner with the Trustee in supplying any information within the
Depositor's, the Servicer's or the Special Servicer's control (other than any
confidential information) that is reasonably necessary to enable the Trustee to
perform its duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of
determining the anticipated payments of principal and interest for calculating
the original yield to maturity and original issue discount with respect to the
Regular Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Servicer, the Depositor and the
Class LR Certificateholders will exercise the right described in Section 9.01 of
this Agreement to cause early termination of the Trust Fund; and (iii) no
Mortgage Loan is repurchased by the Mortgage Loan Seller or the Depositor
pursuant to Article II hereof.
148
SECTION 4.05. Imposition of Tax on the Trust Fund. In the event
that any tax, including interest, penalties or assessments, additional amounts
or additions to tax, is imposed on the Upper-Tier REMIC, the Middle-Tier REMIC
or Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the REMIC Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(viii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from Available Funds sufficient funds to
pay or provide for the payment of, and to actually pay, such tax as is legally
owed by the Upper-Tier REMIC, the Middle-Tier REMIC or Lower-Tier REMIC (but
such authorization shall not prevent the Trustee from contesting, at the expense
of the Trust Fund, any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The Trustee is hereby authorized to and shall segregate or cause
to be segregated, into a separate non-interest bearing account, (i) the net
income from any "prohibited transaction" under Code Section 860F(a) or (ii) the
amount of any contribution to the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC after the Startup Day that is subject to tax under Code Section
860G(d) and use such income or amount, to the extent necessary, to pay such tax
(and return the balance thereof, if any, to the Collection Account, Middle-Tier
Distribution Account or the Upper-Tier Distribution Account, as the case may
be). To the extent that any such tax is paid to the Internal Revenue Service,
the Trustee shall retain an equal amount from future amounts otherwise
distributable to the Holders of the Class R, the Class MR or the Class LR
Certificates as the case may be, and shall distribute such retained amounts to
the Holders of Regular Certificates, Middle-Tier Regular Interests or Lower-Tier
Regular Interests, as applicable, until they are fully reimbursed and then to
the Holders of the Class R Certificates, the Class MR or the Class LR
Certificates, as applicable. Neither the Servicer, the Special Servicer nor the
Trustee shall be responsible for any taxes imposed on the Upper-Tier REMIC, the
Middle-Tier REMIC or Lower-Tier REMIC except to the extent such tax is
attributable to a breach of a representation or warranty or the gross negligence
or willful misconduct of the Servicer, the Special Servicer or the Trustee or an
act or omission of the Servicer, the Special Servicer or the Trustee in
contravention of this Agreement, provided, further, that such breach, act or
omission could result in liability under Section 6.03, in the case of the
Servicer or Section 4.04 or 8.01, in the case of the Trustee. Notwithstanding
anything in this Agreement to the contrary, in each such case, the Servicer or
the Special Servicer shall not be responsible for Trustee's breaches, acts or
omissions, and the Trustee shall not be responsible for the breaches, acts or
omissions of the Servicer or the Special Servicer.
149
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage
Loan with respect to any month, (A) if such Mortgage Loan is delinquent as to
its Balloon Payment (including any such Mortgage Loan as to which the related
Mortgaged Property has become an REO Property), the related Assumed Scheduled
Payment, and (B) if such Mortgage Loan is not described in clause (A) above
(including any such Mortgage Loan as to which the related Mortgaged Property has
become an REO Property), the Monthly Payment (after giving effect to any
modification other than as described in (A) above); provided, however, that for
purposes of calculating the amount of any P&I Advance required to be made by the
Servicer, the Trustee or the Fiscal Agent, notwithstanding the amount of such
Applicable Monthly Payment, interest shall be calculated at the Mortgage
Pass-Through Rate (minus the Master Servicing Fee Rate). The Applicable Monthly
Payment shall be reduced, for purposes of P&I Advances, by any modifications
pursuant to Section 3.30 or otherwise and by any reductions by a bankruptcy
court pursuant to a plan of reorganization or pursuant to any of its equitable
powers.
(b) On the Servicer Remittance Date immediately preceding each
Distribution Date, the Servicer shall:
(i) remit to the Trustee for deposit in the Distribution
Account an amount equal to Prepayment Premiums, for
deposit into the Default Interest Distribution Account an
amount equal to Net Default Interest and for deposit into
the Excess Interest Distribution Account an amount equal
to Excess Interest, in each case received by the Servicer
or Special Servicer in the Collection Period preceding
such Distribution Date;
(ii) remit to the Trustee for deposit in the Distribution
Account an amount equal to the aggregate of the Available
Funds (other than P&I Advances) for such Distribution
Date; and
(iii) make a P&I Advance by depositing into the Distribution
Account, in an amount equal to the sum of the Applicable
Monthly Payments for each Mortgage Loan to the extent such
amounts were not received on such Mortgage Loan as of the
close of business on the immediately preceding
Determination Date (and therefore are not included in the
remittance described in the preceding clause (ii)).
(c) [Intentionally Left Blank].
(d) [Intentionally Left Blank].
(e) The Servicer shall not be required or permitted to make an
advance for Excess Interest or Default Interest. The amount required to be
advanced by the Servicer in respect of Applicable Monthly Payments on Mortgage
Loans that have been subject to an Appraisal Reduction Event will equal the
product of (i) the amount required to be advanced by the Servicer without giving
effect to such Appraisal Reduction Amounts and (ii) a fraction, the numerator of
150
which is the Stated Principal Balance of the Mortgage Loan (as of the last day
of the related Collection Period) less any Appraisal Reduction Amounts thereof
and the denominator of which is the Stated Principal Balance (as of the last day
of the related Collection Period).
(f) Any amount advanced by the Servicer pursuant to Section
4.06(b)(iii) shall constitute a P&I Advance for all purposes of this Agreement
and the Servicer shall be entitled to reimbursement (with interest at the
Advance Rate) thereof to the full extent as otherwise set forth in this
Agreement.
(g) If as of 11:00 a.m., New York City time, on any
Distribution Date the Servicer shall not have made the P&I Advance required to
have been made on the related Servicer Remittance Date pursuant to Section
4.06(b)(iii), the Trustee shall immediately notify the Fiscal Agent by telephone
promptly confirmed in writing, and the Trustee shall no later than 12:00 noon,
New York City time, on such Business Day deposit into the Distribution Account
in immediately available funds an amount equal to the P&I Advances otherwise
required to have been made by the Servicer. If the Trustee fails to make any P&I
Advance required to be made under this Section 4.06, the Fiscal Agent shall make
such P&I Advance not later than 2:00 p.m., New York City time, on such Business
Day and, thereby, the Trustee shall not be in default under this Agreement.
(h) None of the Servicer, the Trustee or the Fiscal Agent
shall be obligated to make a P&I Advance as to any Monthly Payment or Assumed
Scheduled Payment on any date on which a P&I Advance is otherwise required to be
made by this Section 4.06 if the Servicer, the Trustee or Fiscal Agent, as
applicable, determines that such advance will be a Nonrecoverable Advance. The
Servicer shall be required to provide notice to the Trustee and the Fiscal Agent
on or prior to the Servicer Remittance Date of any such non-recoverability
determination made on or prior to such date. The Trustee and the Fiscal Agent
shall be entitled to rely, conclusively, on any determination by the Servicer
that a P&I Advance, if made, would be a Nonrecoverable Advance (and with respect
to a P&I Advance, the Trustee or the Fiscal Agent, as applicable, shall rely on
the Servicer's determination that the Advance would be a Nonrecoverable Advance
if the Trustee or Fiscal Agent, as applicable, determines that it does not have
sufficient time to make such determination); provided, however, that if the
Servicer has failed to make a P&I Advance for reasons other than a determination
by the Servicer that such Advance would be a Nonrecoverable Advance, the Trustee
or Fiscal Agent, as applicable, shall make such advance within the time periods
required by Section 4.06(g) unless the Trustee or the Fiscal Agent, in good
faith, makes a determination prior to the times specified in Section 4.06(g)
that such advance would be a Nonrecoverable Advance. The Trustee and the Fiscal
Agent, in determining whether or not an Advance previously made is, or a
proposed Advance, if made, would be, a Nonrecoverable Advance shall be subject
to the standards applicable to the Servicer hereunder.
(i) The Servicer, the Trustee or the Fiscal Agent, as
applicable, shall be entitled to the reimbursement of P&I Advances it makes to
the extent permitted pursuant to Section 3.06(ii) of this Agreement together
with any related Advance Interest Amount in respect of such P&I Advances to the
extent permitted pursuant to Section 3.06(iii) and the Servicer and Special
Servicer hereby covenant and agree to promptly seek and effect the reimbursement
of
151
such Advances from the related Borrowers to the extent permitted by applicable
law and the related Mortgage Loan.
SECTION 4.07. Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting
of (i) the Default Interest, the subaccount of the Collection Account pertaining
to the Default Interest and the Default Interest Distribution Account and (ii)
the Excess Interest, the subaccount of the Collection Account pertaining to the
Excess Interest and the Excess Interest Distribution Account shall constitute,
and that the affairs of the Trust Fund (exclusive of the Trust REMICs) shall be
conducted so as to qualify such portion as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished to Class Q-1 and Class Q-2 Certificateholders and shall file or cause
to be filed with the Internal Revenue Service together with Form 1041 or such
other form as may be applicable, the amount of Default Interest received or
accrued and the amount of any interest on unreimbursed Advances paid to the
Servicer, the Trustee and the Fiscal Agent, as applicable, from Default Interest
pursuant to Section 3.06(iii) in the case of the Class Q-1 Certificates, and the
amount of Excess Interest received or accrued in the case of the Class Q-2
Certificates, at the time or times and in the manner required by the Code.
ARTICLE V.
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates consist of the Class A-1 Certificates,
the Class A-2 Certificates, the Class 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 Q-l Certificates, the Class Q-2 Certificates, the Class R
Certificates, the Class MR Certificates and the Class LR Certificates.
The Class A-1, Class A-2, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class Q-l, Class
Q-2, Class R, the Class MR and Class LR Certificates will be substantially in
the forms annexed hereto as Exhibits A-1 through A-18, as set forth in the Table
of Exhibits hereto. The Certificates of each Class will be issuable in
registered form only, in minimum denominations of authorized Certificate Balance
or Notional Balance, as applicable, as described in the succeeding table, and
multiples of $l in excess thereof (or such lesser amount if the Certificate or
Notional Balance, as applicable, is not a multiple of $1). With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (A) set forth on the face thereof or (B) in the
case of any Global Certificate, set forth on a schedule attached thereto or, in
the case of any beneficial interest in a Global Certificate, the amount set
forth on the books and records of the related Depository Participant or Indirect
Participant, as applicable, (ii) expressed in terms of Initial Certificate
152
Balance or Notional Balance, as applicable, and (iii) be in an authorized
denomination, as set forth below.
Minimum Aggregate Denomination of all
Class Denomination Certificates of Class
----- ------------ -----------------------------
A-1 $10,000.00 $ 181,453,000
A-2 $10,000.00 $ 723,242,000
X $1,000,000.00 $ 1,311,153,573
B $25,000.00 $ 62,280,000
C $25,000.00 $ 22,945,000
D $25,000.00 $ 62,280,000
E $25,000.00 $ 81,947,000
F $25,000.00 $ 19,668,000
G $25,000.00 $ 68,835,000
H $25,000.00 $ 13,112,000
J $25,000.00 $ 26,223,000
K $25,000.00 $ 19,667,000
L $25,000.00 $ 29,501,573
Each Certificate will share ratably in all rights of the related
Class. The Class Q-1, Class Q-2, Class R, Class MR and LR Certificates will each
be issuable in one or more registered, definitive physical certificates in
minimum denominations of 5% Percentage Interests and integral multiples of a 1%
Percentage Interest in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
The Global Certificates shall be issued as one or more
certificates registered in the name of a nominee designated by the Depository,
and Beneficial Owners shall hold interests in the Global Certificates through
the book-entry facilities of the Depository in the minimum Denominations and
aggregate Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the
same benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate,
the Trust Fund, the Paying Agent and the Trustee may for all purposes (including
the making of payments due on the Global Certificates and the giving of notice
to Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information pursuant to Section 3.22 or
transmitting communications pursuant to Section 5.05(a), to the extent that the
Depositor has provided the Trustee with the names of Beneficial Owners (even if
such Certificateholders hold their Certificates through the Depository) the
Trustee shall provide such information to such Beneficial Owners directly. The
rights of Beneficial Owners with respect to Global Certificates shall be limited
to those established by law and agreements between such Certificateholders and
the Depository and Depository Participants. Except as set forth in Section
5.01(e) below, Beneficial Owners of
153
Global Certificates shall not be entitled to physical certificates for the
Global Certificates as to which they are the Beneficial Owners. Requests and
directions from, and votes of, the Depository as Holder of the Global
Certificates shall not be deemed inconsistent if they are made with respect to
different Beneficial Owners. Subject to the restrictions on transfer set forth
in this Section 5.02 and Applicable Procedures, the holder of a beneficial
interest in a Private Global Certificate may request that the Trustee cause the
Depository (or any Agent Member) to notify the Certificate Registrar and the
Certificate Custodian in writing of a request for transfer or exchange of such
beneficial interest for an Individual Certificate or Certificates. Upon receipt
of such a request and payment by the related Beneficial Owner of any attendant
expenses, the Depositor shall cause the issuance and delivery of such Individual
Certificates. The Certificate Registrar may establish a reasonable record date
in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
Without the written consent of the Certificate Registrar, no Global Certificate
may be transferred by the Depository except to a successor Depository that
agrees to hold the Global Certificates for the account of the Beneficial Owners.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
(d) The Global Certificates (i) shall be delivered by the
Certificate Registrar to the Depository or, pursuant to the Depository's
instructions on behalf of the Depository to, and deposited with, the Certificate
Custodian, and in either case shall be registered in the name of Cede & Co. and
(ii) shall bear a legend substantially to the following effect:
"Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Certificate Registrar for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
The Global Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If (i) the Depository advises the Trustee in writing that
the Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Depositor is unable to locate a
qualified successor, (ii) the Depositor, at its sole option, elects to terminate
the book-entry system through the Depository with respect to all or any portion
of
154
any Class of Certificates or (iii) after the occurrence of an Event of Default,
Beneficial Owners owning not less than a majority in Certificate Balance or
Notional Balance, as applicable, of the Global Certificate for any Class then
outstanding advise the Trustee and the Depository through Depository
Participants in writing that the continuation of a book-entry system through the
Depository is no longer in the best interest of the Beneficial Owner or Owners
of such Global Certificate, the Trustee shall notify the affected Beneficial
Owner or Owners through the Depository of the occurrence of such event and the
availability of Individual Certificates to such Beneficial Owners requesting
them. Upon surrender to the Trustee of Global Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall issue the Individual Certificates. Neither the
Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer, the Special
Servicer nor the Depositor shall be liable for any actions taken by the
Depository or its nominee, including, without limitation, any delay in delivery
of such instructions. Upon the issuance of Individual Certificates, the Trustee,
the Fiscal Agent, the Certificate Registrar, the Servicer, the Special Servicer,
and the Depositor shall recognize the Holders of Individual Certificates as
Certificateholders hereunder.
(f) If the Trustee, its agents or the Servicer or Special
Servicer has instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee, the Servicer or the Special Servicer has been
advised by counsel that in connection with such proceeding it is necessary or
appropriate for the Trustee, the Servicer or the Special Servicer to obtain
possession of the Certificates, the Trustee, the Servicer or the Special
Servicer may in its sole discretion determine that the Certificates represented
by the Global Certificates shall no longer be represented by such Global
Certificates. In such event, the Trustee or the Authenticating Agent will
execute and authenticate and the Certificate Registrar will deliver, in exchange
for such Global Certificates, Individual Certificates (and if the Trustee or the
Certificate Custodian has in its possession Individual Certificates previously
executed, the Authenticating Agent will authenticate and the Certificate
Registrar will deliver such Certificates) in a Denomination equal to the
aggregate Denomination of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or
15(d) of the Exchange Act, the Trustee shall make available to each Holder of a
Class F, Class G, Class H, Class J, Class K, Class L, Class Q-1, Class Q-2,
Class R, Class MR or Class LR Certificate, upon request of such a Holder,
information, to the extent such information is in its possession, substantially
equivalent in scope to the information currently filed by the Servicer with the
Commission pursuant to the Exchange Act, plus such additional information
required to be provided for securities qualifying for resales under Rule 144A
under the Act, all of which information referred to in this paragraph shall be
provided on a timely basis to the Trustee by the Servicer.
For so long as the Class Q-l, Class Q-2 Class R, Class MR or
Class LR Certificates remain outstanding, neither the Depositor nor the Trustee
nor the Certificate Registrar shall take any action which would cause the Trust
Fund to fail to be subject to Section 15(d) of the Exchange Act.
155
(h) Each Certificate may be printed or in typewritten or
similar form, and each Certificate shall, upon original issue, be executed and
authenticated by the Trustee or the Authenticating Agent and delivered to the
Depositor. All Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee or Authenticating Agent by an authorized officer or
signatory. Certificates bearing the signature of an individual who was at any
time the proper officer or signatory of the Trustee or Authenticating Agent
shall bind the Trustee or Authenticating Agent, notwithstanding that such
individual has ceased to hold such office or position prior to the delivery of
such Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-18 executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration, Transfer and Exchange of
Certificates.
(a) The Trustee shall keep or cause to be kept at the
Corporate Trust Office books (the "Certificate Register") for the registration,
transfer and exchange of Certificates (the Trustee, in such capacity, being the
"Certificate Registrar"). The names and addresses of all Certificateholders and
the names and addresses of the transferees of any Certificates shall be
registered in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of the individual Participants holding beneficial interests in the Trust
Fund through the Depository. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Depositor, Certificate Registrar, the
Servicer, Special Servicer, the Trustee, the Fiscal Agent, any Paying Agent and
any agent of any of them shall not be affected by any notice or knowledge to the
contrary. An Individual Certificate is transferable or exchangeable only upon
the surrender of such Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the requirements of Sections 5.01(h)
and 5.02(c), (d), (e), (f), (g), (h) and (i). Upon request of the Trustee, the
Certificate Registrar shall provide the Trustee with the names, addresses and
Percentage Interests of the Holders.
(b) Upon surrender for registration of transfer of any
Individual Certificate, subject to the requirements of Sections 5.02(c), (d),
(e), (f), (g), (h) and (i), the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination as the Individual Certificate being surrendered. Such Certificates
shall be delivered by the Certificate Registrar in accordance with Section
5.02(e). Each Certificate surrendered for registration of transfer shall be
canceled and subsequently destroyed by the Certificate Registrar. Each new
Certificate issued pursuant to this Section 5.02 shall be registered in the name
of any Person as the transferring Holder may request, subject to the provisions
of Sections 5.01(h) and 5.02(c), (d), (e), (f), (g), (h) and (i).
156
(c) In addition to the provisions of Sections 5.01(h) and
5.02(d), (e), (f), (g), (h) and (i) and the rules of the Depository, the
exchange, transfer and registration of transfer of Individual Certificates or
beneficial interests in the Private Global Certificates shall be subject to the
following restrictions:
(i) Transfers between Holders of Individual Certificates.
With respect to the transfer and registration of transfer of an
Individual Certificate representing an interest in the Class Q-1,
Class Q-2, Class R, Class MR or Class LR Certificates to a
transferee that takes delivery in the form of an Individual
Certificate:
(A) The Certificate Registrar shall register the
transfer of an Individual Certificate if the requested
transfer is being made by a transferee who has provided
the Certificate Registrar with an Investment
Representation Letter substantially in the form of Exhibit
D-l hereto (an "Investment Representation Letter"), to the
effect that the transfer is being made to a Qualified
Institutional Buyer in accordance with Rule 144A;
(B) The Certificate Registrar shall register the
transfer of an Individual Certificate pursuant to
Regulation S after the expiration of the Restricted Period
if (1) the transferor has provided the Certificate
Registrar with a Regulation S Transfer Certificate
substantially in the form of Exhibit I hereto (a
"Regulation S Transfer Certificate"), and (2) the
transferee furnishes to the Certificate Registrar an
Investment Representation Letter; or
(C) The Certificate Registrar shall register the
transfer of an Individual Certificate if prior to the
transfer such transferee furnishes to the Certificate
Registrar (1) an Investment Representation Letter to the
effect that the transfer is being made to an Institutional
Accredited Investor or to an Affiliated Person in
accordance with an applicable exemption under the Act, and
(2) an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the
Act;
and, in each case, the Certificate Registrar shall register the
transfer of an Individual Certificate only if prior to the
transfer the transferee furnishes to the Certificate Registrar a
written undertaking by the transferor to reimburse the Trust Fund
for any costs incurred by it in connection with the proposed
transfer. In addition, the Certificate Registrar may, as a
condition of the registration of any such transfer, require the
transferor to furnish such other certificates, legal opinions or
other information (at the transferor's expense) as the
Certificate Registrar may reasonably require to confirm that the
proposed transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of
the Act and other applicable laws.
157
(ii) Transfers within the Private Global Certificates.
Notwithstanding any provision to the contrary herein, so long as
a Private Global Certificate remains outstanding and is held by
or on behalf of the Depository, transfers within the Private
Global Certificates shall only be made in accordance with this
Section 5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S
Global Certificate During the Restricted Period. If,
during the Restricted Period, a Beneficial Owner of an
interest in a Rule 144A Global Certificate wishes at any
time to transfer its beneficial interest in such Rule 144A
Global Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the
related Regulation S Global Certificate, such Beneficial
Owner may, in addition to complying with all applicable
rules and procedures of the Depository and CEDEL or
Euroclear applicable to transfers by their respective
participants (the "Applicable Procedures"), transfer or
cause the transfer of such beneficial interest for an
equivalent beneficial interest in such Regulation S Global
Certificate only upon compliance with the provisions of
this Section 5.02(c)(ii)(A). Upon receipt by the
Certificate Registrar at the Corporate Trust Office of (1)
written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the
Certificate Registrar to credit or cause to be credited to
another specified Agent Member's account a beneficial
interest in the Regulation S Global Certificate in an
amount equal to the Denomination of the beneficial
interest in the Rule 144A Global Certificate to be
transferred, (2) a written order given in accordance with
the Applicable Procedures containing information regarding
the account of the Agent Member and the Euroclear or CEDEL
account, as the case may be, to be credited with, and the
account of the Agent Member to be debited for, such
beneficial interest, and (3) a certificate in the form of
Exhibit J hereto given by the Beneficial Owner of such
interest, the Certificate Registrar shall instruct the
Depository or the Certificate Custodian, as applicable, to
reduce the Denomination of the Rule 144A Global
Certificate by the Denomination of the beneficial interest
in the Rule 144A Global Certificate to be so transferred
and, concurrently with such reduction, to increase the
Denomination of the Regulation S Global Certificate by the
Denomination of the beneficial interest in the Rule 144A
Global Certificate to be so transferred, and to credit or
cause to be credited to the account of the Person
specified in such instructions (who shall be an Agent
Member acting for or on behalf of Euroclear or CEDEL, or
both, as the ease may be) a beneficial interest in the
Regulation S Global Certificate having a Denomination
equal to the amount by which the Denomination of the Rule
144A Global Certificate was reduced upon such transfer.
158
(B) Rule 144A Global Certificate to Regulation S
Global Certificate After the Restricted Period. If, after
the Restricted Period, a Beneficial Owner of an interest
in a Rule 144A Global Certificate wishes at any time to
transfer its beneficial interest in such Rule 144A Global
Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the
related Regulation S Global Certificate, such holder may,
in addition to complying with all Applicable Procedures,
transfer or cause the transfer of such beneficial interest
for an equivalent beneficial interest in such Regulation S
Global Certificate only upon compliance with the
provisions of this Section 5.02(c)(ii)(B). Upon receipt by
the Certificate Registrar at the Corporate Trust Office of
(1) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the
Certificate Registrar to credit or cause to be credited to
another specified Agent Member's account a beneficial
interest in the Regulation S Global Certificate in an
amount equal to the Denomination of the beneficial
interest in the Rule 144A Global Certificate to be
transferred, (2) a written order given in accordance with
the Applicable Procedures containing information regarding
the account of the Agent Member and, in the case of a
transfer pursuant to and in accordance with Regulation S,
the Euroclear or CEDEL account, as the case may be, to be
credited with, and the account of the Agent Member to be
debited for, such beneficial interest, and (3) a
certificate in the form of Exhibit K hereto given by the
Beneficial Owner of such interest, the Certificate
Registrar shall instruct the Depository or the Certificate
Custodian, as applicable, to reduce the Denomination of
the Rule 144A Global Certificate by the aggregate
Denomination of the beneficial interest in the Rule 144A
Global Certificate to be so transferred and, concurrently
with such reduction, to increase the Denomination of the
Regulation S Global Certificate by the aggregate
Denomination of the beneficial interest in the Rule 144A
Global Certificate to be so transferred, and to credit or
cause to be credited to the account of the Person
specified in such instructions a beneficial interest in
the Regulation S Global Certificate having a Denomination
equal to the amount by which the Denomination of the Rule
144A Global Certificate was reduced upon such transfer.
(C) Regulation S Global Certificate to Rule 144A
Global Certificate. If the Beneficial Owner of an interest
in a Regulation S Global Certificate wishes at any time to
transfer its beneficial interest in such Regulation S
Global Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the
related Rule 144A Global Certificate, such Beneficial
Owner may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest
in such Rule 144A Global Certificate only upon compliance
with the provisions of this Section 5.02(c)(ii)(C). Upon
receipt by the Certificate Registrar at the Corporate
159
Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from an Agent
Member directing the Certificate Registrar to credit or
cause to be credited to another specified Agent Member's
account a beneficial interest in the Rule 144A Global
Certificate in an amount equal to the Denomination of the
beneficial interest in the Regulation S Global Certificate
to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information
regarding the account of the Agent Member to be credited
with, and the account of the Agent Member or, if such
account is held for Euroclear or CEDEL, the Euroclear or
CEDEL account, as the case may be, to be debited for, such
beneficial interest, and (3) with respect to a transfer of
a beneficial interest in a Regulation S Global Certificate
for a beneficial interest in the related Rule 144A Global
Certificate (i) during the Restricted Period, a
certificate in the form of Exhibit L hereto given by the
holder of such beneficial interest or (ii) after the
Restricted Period, an Investment Representation Letter
from the transferee to the effect that such transferee is
a Qualified Institutional Buyer, the Certificate Registrar
shall instruct the Depository or the Certificate
Custodian, as applicable, to reduce the Denomination of
the Regulation S Global Certificate by the aggregate
Denomination of the beneficial interest in the Regulation
S Global Certificate to be transferred, and, concurrently
with such reduction, to increase the Denomination of the
Rule 144A Global Certificate by the aggregate Denomination
of the beneficial interest in the Regulation S Global
Certificate to be so transferred, and to credit or cause
to be credited to the account of the Person specified in
such instructions a beneficial interest in such Rule 144A
Global Certificate having a Denomination equal to the
amount by which the Denomination of the Regulation S
Global Certificate was reduced upon such transfer.
(iii) Transfers from the Private Global Certificates to
Individual Certificates. Any and all transfers from a Private
Global Certificate to a transferee wishing to take delivery in
the form of an Individual Certificate will require the transferee
to take delivery subject to the restrictions on the transfer of
such Individual Certificate described in a legend set forth on
the face of such Certificate substantially in the form of Exhibit
G as attached hereto (the "Securities Legend"), and such
transferee agrees that it will transfer such Individual
Certificate only as provided therein and herein. No such transfer
shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with
this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private
Global Certificate to an Institutional Accredited Investor
will require delivery in the form of an Individual
Certificate and the Certificate Registrar shall
160
register such transfer only upon compliance with the
provisions of Section 5.02(c)(i)(c).
(B) Transfers of a beneficial interest in a Private
Global Certificate to a Qualified Institutional Buyer or a
Regulation S Investor wishing to take delivery in the form
of an Individual Certificate will be registered by the
Certificate Registrar only upon compliance with the
provisions of Sections 5.02(c)(i)(A) and (B),
respectively.
(C) Notwithstanding the foregoing, no transfer of a
beneficial interest in a Regulation S Global Certificate
to an Individual Certificate pursuant to subparagraph (B)
above shall be made prior to the expiration of the
Restricted Period.
Upon acceptance for exchange or transfer of a beneficial interest
in a Private Global Certificate for an Individual Certificate, as
provided herein, the Certificate Registrar shall endorse on the
schedule affixed to the related Private Global Certificate (or on
a continuation of such schedule affixed to such Private Global
Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease
in the Denomination of such Private Global Certificate equal to
the Denomination of such Individual Certificate issued in
exchange therefor or upon transfer thereof. Unless determined
otherwise by the Certificate Registrar in accordance with
applicable law, an Individual Certificate issued upon transfer of
or exchange for a beneficial interest in the Private Global
Certificate shall bear the Securities Legend.
(iv) Transfers of Individual Certificates to the Private
Global Certificates. If a Holder of an Individual Certificate
wishes at any time to transfer such Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial
interest in the related Regulation S Global Certificate or the
related Rule 144A Global Certificate, such transfer may be
effected only in accordance with the Applicable Procedures and
this Section 5.02(c)(iv). Upon receipt by the Certificate
Registrar at the Corporate Trust Office of (l) the Individual
Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (2) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be
credited to a specified Agent Member's account a beneficial
interest in such Regulation S Global Certificate or such Rule
144A Global Certificate, as the case may be, in an amount equal
to the Denomination of the Individual Certificate to be so
transferred, (3) a written order given in accordance with the
Applicable Procedures containing information regarding the
account of the Agent Member and, in the case of any transfer
pursuant to Regulation S, the Euroclear or CEDEL account, as the
case may be, to be credited with such beneficial interest, and
(4) (x) an Investment Representation Letter from the transferee
and, if delivery is to be taken in the form of a beneficial
interest in the Regulation S Global Certificate,
161
a Regulation S Transfer Certificate from the transferor or (y) an
Investment Representation Letter from the transferee to the
effect that such transferee is a Qualified Institutional Buyer if
delivery is to be taken in the form of a beneficial interest in
the Rule 144A Global Certificate, the Certificate Registrar shall
cancel such Individual Certificate, execute and deliver a new
Individual Certificate for the Denomination of the Individual
Certificate not so transferred, registered in the name of the
Holder or the Holder's transferee (as instructed by the Holder),
and the Certificate Registrar shall instruct the Depository or
the Certificate Custodian, as applicable, to increase the
Denomination of the Regulation S Global Certificate or the Rule
144A Global Certificate, as the case may be, by the Denomination
of the Individual Certificate to be so transferred, and to credit
or cause to be credited to the account of the Person specified in
such instructions who, in the case of any increase in the
Regulation S Global Certificate during the Restricted Period,
shall be an Agent Member acting for or on behalf of Euroclear or
CEDEL, or both, as the case may be, a corresponding Denomination
of the Rule 144A Global Certificate or the Regulation S Global
Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may
an Institutional Accredited Investor that is not a Qualified
Institutional Buyer take delivery in the form of a beneficial
interest in a Private Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in
a Private Global Certificate for an Individual Certificate or
Certificates, an exchange of an Individual Certificate or
Certificates for a beneficial interest in a Private Global
Certificate and an exchange of an Individual Certificate or
Certificates for another Individual Certificate or Certificates
(in each case, whether or not such exchange is made in
anticipation of subsequent transfer, and, in the case of the
Private Global Certificates, so long as the Private Global
Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section
5.02 and in accordance with the rules of the Depository and
Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or
replacement of Certificates not bearing the Securities Legend, the Certificates
so issued shall not bear the Securities Legend. If Certificates are issued upon
the transfer, exchange or replacement of Certificates bearing the Securities
Legend, or if a request is made to remove the Securities Legend on a
Certificate, the Certificates so issued shall bear the Securities Legend, or the
Securities Legend shall not be removed, as the case may be, unless there is
delivered to the Certificate Registrar such satisfactory evidence, which may
include an opinion of counsel (at the expense of the party requesting the
removal of such legend) familiar with United States securities laws, as may be
reasonably required by the Certificate Registrar, that neither the Securities
Legend nor the restrictions on transfers set forth therein are required to
ensure that transfers of any Certificate comply with the provisions of Rule 144A
or Rule 144 under the Act or that such Certificate is not a "restricted
security" within the meaning of Rule 144 under the Act. Upon
162
provision of such satisfactory evidence, the Certificate Registrar shall execute
and deliver a Certificate that does not bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set
forth in Section 5.01(i) and in this Section 5.02, the Holder of any Individual
Certificate may transfer or exchange the same in whole or in part (with a
denomination equal to any authorized denomination) by surrendering such
Certificate at the Corporate Trust Office or at the office of any transfer agent
appointed as provided under this Agreement, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange, in the case of
exchange. Following a proper request for transfer or exchange, the Certificate
Registrar shall, within five Business Days of such request if made at such
Corporate Trust Office or within ten Business Days if made at the office of a
transfer agent (other than the Certificate Registrar), execute and deliver at
the Corporate Trust Office or at the office of such transfer agent, as the case
may be, to the transferee (in the case of transfer) or Holder (in the case of
exchange) or send by first class mail (at the risk of the transferee in the case
of transfer or Holder in the case of exchange) to such address as the transferee
or Holder, as applicable, may request, an Individual Certificate or
Certificates, as the case may require, for a like aggregate Denomination and in
such Denomination or Denominations as may be requested. The presentation for
transfer or exchange of any Individual Certificate shall not be valid unless
made at the Corporate Trust Office or at the office of a transfer agent by the
registered Holder in person, or by a duly authorized attorney-in-fact. The
Certificate Registrar may decline to accept any request for an exchange or
registration of transfer of any Certificate during the period of fifteen days
preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual
Certificate issued in exchange for a beneficial interest in a Global Certificate
pursuant to Section 5.01) or a beneficial interest in a Private Global
Certificate may only be transferred to Eligible Investors, as described herein.
In the event that a Responsible Officer of the Certificate Registrar becomes
aware that such an Individual Certificate or beneficial interest in a Private
Global Certificate is being held by or for the benefit of a Person who is not an
Eligible Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Individual Certificate or beneficial interest in a Private Global
Certificate to an Eligible Investor within fourteen days after notice of such
determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding
transfer and exchange, transfers of the Global Certificates shall be limited to
transfers of such Global Certificates in whole, but not in part, to nominees of
the Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the
Certificate Registrar for its services in respect of any registration of
transfer or exchange referred to in this Section 5.02 other than for transfers
to Institutional Accredited Investors, as provided herein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust
163
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
(i) Subject to Section 5.02(e), transfers of the Class Q-1,
Class Q-2, Class R, Class MR and Class LR Certificates may be made only in
accordance with this Section 5.02(i). The Certificate Registrar shall register
the transfer of a Class Q-l, Class Q-2, Class R, Class MR or Class LR
Certificate only if (x) the transferor has advised the Certificate Registrar in
writing that such Certificate is being transferred to a Qualified Institutional
Buyer, an Affiliated Person or an Institutional Accredited Investor and (y)
prior to such transfer the transferee furnishes to the Certificate Registrar an
Investment Representation Letter. In addition, the Certificate Registrar may as
a condition of the registration of any such transfer require the transferor to
furnish such other certifications, legal opinions or other information (at the
transferor's expense) as it may reasonably require to confirm that the proposed
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act and other applicable laws.
(j) Neither the Depositor, the Servicer, the Trustee nor the
Certificate Registrar is obligated to register or qualify the Class F, Class G,
Class H, Class J, Class K, Class L, Class Q-l, Class Q-2, Class R, Class MR or
Class LR Certificates under the Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of
such Certificates without registration or qualification. Any Certificateholder
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Servicer, the Trustee and the Certificate Registrar, against
any loss, liability or expense that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(k) No transfer of any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class Q-1, Class Q-2,
Class R, Class MR or Class LR Certificate (each, a "Restricted Certificate")
shall be made to (i) an employee benefit plan subject to the fiduciary
responsibility provisions of ERISA, or Section 4975 of the Code, or a
governmental plan subject to any federal, state or local law ("Similar Law"),
which is to a material extent, similar to the foregoing provisions of ERISA or
the Code (collectively, a "Plan") or (ii) a collective investment fund in which
a Plan is invested, an insurance company that is using the assets of any
insurance company separate account or general account in which the assets of any
such Plan are invested (or which are deemed pursuant to ERISA or any Similar Law
to include assets of Plans) to acquire any such Restricted Certificate or any
other Person acting on behalf of any Plan or using the assets of any Plan to
acquire any such Restricted Certificate, other than (with respect to transfer of
Restricted Certificates other than the Class Q-1, Class Q-2, and the Residual
Certificates) an insurance company using the assets of its general account under
circumstances whereby such transfer to such insurance company would not
constitute a "prohibited transaction" within the meaning of Section 406 or 407
of ERISA, Section 4975 of the Code, or a materially similar characterization
under any Similar Law. Each prospective transferee
164
of a Restricted Certificate shall either (i) deliver to the Depositor, the
Certificate Registrar and the Trustee, a transfer or representation letter,
substantially in the form of Exhibit D-2 hereto, stating that the prospective
transferee is not a Person referred to in (i) or (ii) above or (ii) in the event
the transferee is such an entity specified in (i) or (ii) above (except in the
case of a Residual Certificate, which may not be transferred unless the
transferee represents it is not such an entity), such entity shall provide an
opinion of counsel in form and substance satisfactory to the Certificate
Registrar that the purchase or holding of the Certificates by or on behalf of a
plan will not result in the assets of the trust being deemed to be "plan assets"
and subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of ERISA and the Code or Similar Law, will not
constitute or result in a prohibited transaction within the meaning of Section
406 or 407 of ERISA or Section 4975 of the Code, and will not subject the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Registrar to any obligation or liability. Neither the Trustee, the Servicer nor
the Certificate Registrar shall register a Class R, Class MR or Class LR
Certificate in any Person's name unless such Person has provided the letter
referred to in clause (i) of the preceding sentence. The transferee of a
beneficial interest in a Global Certificate that is a Restricted Certificate
shall be deemed to represent that it is not a Plan or a Person acting on behalf
of any Plan or using the assets of any Plan to acquire such interest other than
(with respect to transfers of beneficial interests in Global Certificates which
are Restricted Certificates other than the Class Q-l, Class Q-2 and the Residual
Certificates) an insurance company using the assets of its general account under
circumstances whereby such transfer to such insurance company would not
constitute a "prohibited transaction" within the meaning of Section 406 or 407
of ERISA, Section 4975 of the Code, or a materially similar characterization
under any Similar Law. Any transfer of a Restricted Certificate that would
violate or result in a prohibited transaction under ERISA or Section 4975 of the
Code shall be deemed absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest
shall be deemed by the acceptance or acquisition of such Ownership Interest to
have agreed to be bound by the following provisions and the rights of each
Person acquiring any Ownership Interest are expressly subject to the following
provisions:
(i) Each Person acquiring or holding any Ownership Interest
shall be a Permitted Transferee and shall not acquire or
hold such Ownership Interest as agent (including a broker,
nominee or other middleman) on behalf of any Person that
is not a Permitted Transferee. Any such Person shall
promptly notify the Certificate Registrar of any change or
impending change in its status (or the status of the
beneficial owner of such Ownership Interest) as a
Permitted Transferee. Any acquisition described in the
first sentence of this Section 5.02(l) by a Person who is
not a Permitted Transferee or by a Person who is acting as
an agent of a Person who is not a Permitted Transferee
shall be void and of no effect, and the immediately
preceding owner who was a Permitted Transferee shall be
restored to registered and beneficial ownership of the
Ownership Interest as fully as possible.
165
(ii) No Ownership Interest may be Transferred, and no such
Transfer shall be registered in the Certificate Register,
without the express written consent of the Certificate
Registrar, and the Certificate Registrar shall not
recognize the Transfer, and such proposed Transfer shall
not be effective, without such consent with respect
thereto. In connection with any proposed Transfer of any
Ownership Interest, the Certificate Registrar shall, as a
condition to such consent, (x) require delivery to it in
form and substance satisfactory to it, and the proposed
transferee shall deliver to the Certificate Registrar and
to the proposed transferor an affidavit in substantially
the form attached as Exhibit C-l (a "Transferee
Affidavit") of the proposed transferee (A) that such
proposed transferee is a Permitted Transferee and (B)
stating that (i) the proposed transferee historically has
paid its debts as they have come due and intends to do so
in the future, (ii) the proposed transferee understands
that, as the holder of an Ownership Interest, it may incur
liabilities in excess of cash flows generated by the
residual interest, (iii) the proposed transferee intends
to pay taxes associated with holding the Ownership
Interest as they become due, (iv) the proposed transferee
will not transfer the Ownership Interest to any Person
that does not provide a Transferee Affidavit or as to
which the proposed transferee has actual knowledge that
such Person is not a Permitted Transferee or is acting as
an agent (including a broker, nominee or other middleman)
for a Person that is not a Permitted Transferee, and (v)
the proposed transferee expressly agrees to be bound by
and to abide by the provisions of this Section 5.02(l) and
(y) other than in connection with the initial issuance of
the Class R, Class MR and Class LR Certificates, require a
statement from the proposed transferor substantially in
the form attached as Exhibit C-2 (the "Transferor
Letter"), that the proposed transferor has no actual
knowledge that the proposed transferee is not a Permitted
Transferee and has no actual knowledge or reason to know
that the proposed transferee's statements in the preceding
clauses (x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by
a proposed transferee under clause (ii) above, if a
Responsible Officer of the Certificate Registrar has
actual knowledge that the proposed transferee is not a
Permitted Transferee, no Transfer to such proposed
transferee shall be effected and such proposed Transfer
shall not be registered on the Certificate Register;
provided, however, that the Certificate Registrar shall
not be required to conduct any independent investigation
to determine whether a proposed transferee is a Permitted
Transferee.
Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article V of this Agreement or under
applicable law with respect to any transfer of any Certificate, or any interest
therein, other than to require delivery of the certification(s) and/or
166
opinions of counsel described in Article V applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register.
The Trustee and the Certificate Registrar shall have no liability for transfers,
including transfers made through the book-entry facilities of the Depository or
between or among Depository Participants or Beneficial Owners made in violation
of applicable restrictions.
Upon notice to the Certificate Registrar that there has occurred
a Transfer to any Person that is a Disqualified Organization or an agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, and in any event not later than 60 days after a request for
information from the transferor of such Ownership Interest, or such agent, the
Certificate Registrar and the Trustee agree to furnish to the IRS and the
transferor of such Ownership Interest or such agent such information necessary
to the application of Section 860E(e) of the Code as may be required by the
Code, including, but not limited to, the present value of the total anticipated
excess inclusions with respect to such Class R., Class MR or Class LR
Certificate (or portion thereof) for periods after such Transfer. At the
election of the Certificate Registrar and the Trustee, the Certificate Registrar
and the Trustee may charge a reasonable fee for computing and furnishing such
information to the transferor or to such agent referred to above; provided,
however, that such Persons shall in no event be excused from furnishing such
information.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar such security or indemnity as
may be required by it to save it, the Trustee and the Servicer harmless, then,
in the absence of actual knowledge by a Responsible Officer of the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee or the Authenticating Agent shall execute and authenticate and the
Certificate Registrar shall deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and of like tenor and Percentage Interest. Upon the issuance of any new
Certificate under this Section 5.03, the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership of the corresponding interest in the Trust
Fund, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a paying agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Servicer, to execute
and deliver to the Servicer and the Trustee an instrument in which such Paying
Agent shall agree with the Servicer and the Trustee that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in trust for the
167
benefit of the Certificateholders entitled thereto until such sums have been
paid to the Certificateholders or disposed of as otherwise provided herein. The
initial Paying Agent shall be the Trustee. Except for LaSalle National Bank, as
the initial Paying Agent, the Paying Agent shall at all times be an entity
having a long-term unsecured debt rating of at least "AA" by Fitch and "Aa2" by
▇▇▇▇▇'▇, or shall be otherwise acceptable to each Rating Agency.
SECTION 5.05. Access to Certificateholders' Names and
Addresses.
(a) If any Certificateholder (for purposes of this Section
5.05, an "Applicant") applies in writing to the Certificate Registrar, and such
application states that the Applicant desires to communicate with other
Certificateholders, the Certificate Registrar shall furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date, at the expense of the
Applicant.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee that the Trustee and the Certificate
Registrar shall not be held accountable in any way by reason of the disclosure
of any information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 5.06. Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, when required, to the Servicer.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee and the Servicer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every Holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted to
be done, by the Trustee or the Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such
additional proof of any matter referred to in this Section 5.06 as it shall deem
necessary.
168
ARTICLE VI.
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and
the Special Servicer.
The Depositor, the Servicer and the Special Servicer each shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed by this Agreement.
SECTION 6.02. Merger or Consolidation of the Servicer.
Subject to the following paragraph, the Servicer will keep in
full effect its existence, rights and good standing as a limited liability
company under the laws of the State of Delaware and will not jeopardize its
ability to do business in each jurisdiction in which the Mortgaged Properties
are located or to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
The Servicer may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which it
shall be a party, or any Person succeeding to its business, shall be the
successor of the Servicer hereunder, and shall be deemed to have assumed all of
the liabilities of the Servicer hereunder, if each of the Rating Agencies has
confirmed in writing that such merger or consolidation or transfer of assets and
succession, in and of itself, will not cause a downgrade, qualification or
withdrawal of the then-current ratings assigned by such Rating Agency to any
Class of Certificates.
SECTION 6.03. Limitation on Liability of the Depositor,
the Servicer and Others.
Neither the Depositor, the Servicer, the Special Servicer, the
Automobile Adviser nor any of the directors, officers, employees or agents
(including subservicers) of the Depositor or the Servicer, the Special Servicer
or the Automobile Adviser shall be under any liability to the Trust Fund or the
Certificateholders (and in the case of the Special Servicer, to the Automobile
Adviser) for any action taken, or for refraining from the taking of any action,
in good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, Servicer or the
Special Servicer or the Automobile Adviser or any such Person against any breach
of warranties or representations made herein, or against any liability which
would otherwise be imposed by reason of willful misconduct, bad faith, fraud or
negligence in the performance of duties or by reason of reckless disregard of
obligations or duties hereunder. The Depositor, the Servicer, the Special
Servicer, the Automobile Adviser and any member, manager, director, officer,
employee or agent (including subservicers) of the Depositor, the Servicer, the
Special Servicer or the Automobile Adviser may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any appropriate
169
Person respecting any matters arising hereunder. The Depositor, the Servicer,
the Special Servicer, the Automobile Adviser and any member, manager, director,
officer, employee or agent (including subservicers) of the Depositor, the
Servicer, the Special Servicer or the Automobile Adviser shall be indemnified
and held harmless by the Trust Fund against any loss, liability or expense
(including legal fees and expenses) (i) incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense incurred by reason of willful misconduct, bad faith, fraud
or negligence (or in the case of the Servicer, by reason of any specific
liability proposed for a breach of the Servicing Standard) in the performance of
duties hereunder or by reason of reckless disregard of obligations or duties
hereunder, in each case by the Person being indemnified or (ii) imposed by any
taxing authority if such loss, liability or expense is not specifically
reimbursable pursuant to the terms of this Agreement. Neither the Depositor, the
Servicer, the Special Servicer nor the Automobile Adviser shall be under any
obligation to appear in, prosecute or defend any legal action unless such action
is related to its respective duties under this Agreement and in its opinion does
not expose it to any expense or liability; provided, however, that the
Depositor, the Servicer, the Special Servicer or the Automobile Adviser may in
its discretion undertake any action related to its obligations hereunder which
it may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Servicer, the Special Servicer and the
Automobile Adviser shall be entitled to be reimbursed therefor from the
Collection Account as provided in Section 3.06 of this Agreement.
SECTION 6.04. Limitation on Resignation of the Servicer and the
Special Servicer; Termination of the Servicer and
the Special Servicer.
(a) The Servicer and the Special Servicer may assign their
respective rights and delegate their respective duties and obligations under
this Agreement in connection with the sale or transfer of a substantial portion
of their mortgage servicing or asset management portfolio, provided that: (i)
the purchaser or transferee accepting such assignment and delegation (A) shall
be satisfactory to the Trustee, (B) shall be an established mortgage finance
institution, bank or mortgage servicing institution, organized and doing
business under the laws of any state of the United States or the District of
Columbia, authorized under such laws to perform the duties of a servicer of
mortgage loans or a Person resulting from a merger, consolidation or succession
that is permitted under Section 6.02, (c) shall be acceptable to each Rating
Agency as confirmed by a letter from each Rating Agency delivered to the Trustee
that such assignment or delegation will not cause a downgrade, withdrawal or
qualification of the then-current ratings of the Certificates, and (D) shall
execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant and
condition to be performed or observed by the Servicer or Special Servicer, as
applicable under this Agreement from and after the date of such agreement; (ii)
as confirmed by a letter from each Rating Agency delivered to the Trustee, each
Rating Agency's rating or ratings of the Regular Certificates in effect
immediately prior to such assignment, sale or transfer will not be qualified,
downgraded or
170
withdrawn as a result of such assignment, sale or transfer; (iii) the Servicer
or the Special Servicer shall not be released from its obligations under this
Agreement that arose prior to the effective date of such assignment and
delegation under this Section 6.04; and (iv) the rate at which the Servicer
Compensation or Special Servicer Compensation, as applicable (or any component
thereof) is calculated shall not exceed the rate then in effect. Upon acceptance
of such assignment and delegation, the purchaser or transferee shall be the
successor Servicer or Special Servicer, as applicable, hereunder.
(b) Except as provided in Section 6.02 and this Section 6.04,
the Servicer and the Special Servicer shall not resign from their respective
obligations and duties hereby imposed on them except upon determination that
such duties hereunder are no longer permissible under applicable law. Any such
determination permitting the resignation of the Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel (obtained
at the resigning Servicer's or Special Servicer's expense) to such effect
delivered to the Trustee.
(c) The Trustee shall be permitted to remove the Servicer or
Special Servicer provided that it has received notice from any Rating Agency
that if such Servicer or Special Servicer is not removed there is the risk of a
downgrade, qualification or withdrawal of the then-current ratings by such
Rating Agency to any Class of Certificates because of the Servicer or Special
Servicer acting as Servicer or Special Servicer. Without limiting the generality
of the succeeding paragraph, no such removal shall be effective unless and until
(i) the Servicer or the Special Servicer has been paid any unpaid Servicer
Compensation or Special Servicer Compensation, as applicable, unreimbursed
Advances (including Advance Interest Amounts thereon to which it is entitled)
and all other amounts to which the Servicer or the Special Servicer is entitled
hereunder to the extent such amounts accrue prior to such effective date and
(ii) with respect to a resignation by the Servicer, the successor Servicer has
deposited into the Investment Accounts from which amounts were withdrawn to
reimburse the terminated Servicer, an amount equal to the amounts so withdrawn,
to the extent such amounts would not have been permitted to be withdrawn except
pursuant to this paragraph, in which case the successor Servicer shall,
immediately upon deposit, have the same right of reimbursement or payment as the
terminated Servicer had immediately prior to its termination without regard to
the operation of this paragraph.
No resignation or removal of the Servicer or the Special Servicer
as contemplated by the preceding paragraphs shall become effective until the
Trustee or a successor Servicer or Special Servicer shall have assumed the
Servicer's or the Special Servicer's responsibilities, duties, liabilities and
obligations hereunder. If no successor Servicer or Special Servicer can be
obtained to perform such obligations for the same compensation to which the
terminated Servicer or Special Servicer would have been entitled, additional
amounts payable to such successor Servicer or Special Servicer shall be treated
as Realized Losses.
171
SECTION 6.05. Rights of the Depositor and the Trustee in Respect
of the Servicer and the Special Servicer.
The Servicer and the Special Servicer shall afford the Depositor,
the Underwriters, the Trustee and the Rating Agencies, upon reasonable notice,
during normal business hours access to all records maintained by it in respect
of its rights and obligations hereunder and access to its officers responsible
for such obligations. Upon request, the Servicer and the Special Servicer shall
furnish to the Depositor, Servicer, Special Servicer and the Trustee its most
recent financial statements and such other information in its possession
regarding its business, affairs, property and condition, financial or otherwise
as the party requesting such information, in its reasonable judgment, determines
to be relevant to the performance of the obligations hereunder of the Servicer
and the Special Servicer. The Depositor may, but is not obligated to, enforce
the obligations of the Servicer or the Special Servicer hereunder which are in
default and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of such Person hereunder or exercise its
rights hereunder, provided that the Servicer and the Special Servicer shall not
be relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. In the event the Depositor or its designee
undertakes any such action it will be reimbursed by the Trust Fund from the
Collection Account as provided in Section 3.06 and Section 6.03(a) hereof to the
extent not recoverable from the Servicer or Special Servicer, as applicable.
Neither the Depositor nor the Trustee and neither the Servicer, with respect to
the Special Servicer, nor the Special Servicer, with respect to the Servicer,
shall have any responsibility or liability for any action or failure to act by
the Servicer or the Special Servicer and neither such Person is obligated to
monitor or supervise the performance of the Servicer or the Special Servicer
under this Agreement or otherwise. Neither the Servicer nor the Special Servicer
shall be under any obligation to disclose confidential or proprietary
information pursuant to this Section.
SECTION 6.06. Servicer or Special Servicer as Owner of a
Certificate.
The Servicer or an Affiliate of the Servicer, or the Special
Servicer or an Affiliate of the Special Servicer, may become the Holder (or with
respect to a Global Certificate, Beneficial Owner) of any Certificate with the
same rights it would have if it were not the Servicer or the Special Servicer or
an Affiliate thereof. If, at any time during which the Servicer or the Special
Servicer or an Affiliate of the Servicer or the Special Servicer is the Holder
or Beneficial Owner of any Certificate, the Servicer or the Special Servicer
proposes to take action (including for this purpose, omitting to take action)
that (i) is not expressly prohibited by the terms hereof and would not, in the
Servicer's or the Special Servicer's good faith judgment, violate the Servicing
Standard, and (ii) if taken, might nonetheless, in the Servicer's or the Special
Servicer's good faith judgment, be considered by other Persons to violate the
Servicing Standard, the Servicer or the Special Servicer may but need not seek
the approval of the Certificateholders to such action by delivering to the
Trustee a written notice that (i) states that it is delivered pursuant to this
Section 6.06, (ii) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Servicer or the Special Servicer or an
Affiliate of the Servicer or the Special Servicer, and (iii) describes in
reasonable detail the action that the Servicer or the Special Servicer proposes
to take. The Trustee, upon receipt of such notice, shall
172
forward it to the Certificateholders (other than the Servicer and its Affiliates
or the Special Servicer and its Affiliates, as appropriate) together with such
instructions for response as the Trustee shall reasonably determine. If at any
time Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Servicer or its Affiliates or the Special Servicer or its
Affiliates, as applicable) shall have consented in writing to the proposal
described in the written notice, and if the Servicer or the Special Servicer
shall act as proposed in the written notice, such action shall be deemed to
comply with the Servicing Standard. The Trustee shall be entitled to
reimbursement from the Servicer or the Special Servicer, as applicable, of the
reasonable expenses of the Trustee incurred pursuant to this paragraph. It is
not the intent of the foregoing provision that the Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, except in the case of unusual
circumstances.
ARTICLE VII.
DEFAULT
SECTION 7.01. Events of Default.
(a) "Servicer Event of Default", wherever used herein, means
any one of the following events:
(i) any failure by the Servicer to remit to the Collection
Account or any failure by the Servicer to remit to the
Trustee for deposit into the Distribution Account,
Middle-Tier Distribution Account, Upper-Tier Distribution
Account, Default Interest Distribution Account or Excess
Interest Distribution Account, any amount required to be
so deposited by the Servicer (including a P&I Advance)
pursuant to, and at the time specified by the terms of
this Agreement; or
(ii) any failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants
or agreements or the breach of any representations or
warranties on the part of the Servicer contained in this
Agreement which continues unremedied for a period of 30
days after the date on which written notice of such
failure, requiring the same to be remedied, shall have
been given to the Servicer by the Depositor or the
Trustee, or to the Servicer, the Depositor and the Trustee
by the Holders of Certificates evidencing Percentage
Interests of at least 25% of any Class affected thereby;
or
(iii) confirmation in writing by any Rating Agency that failure
to remove the Servicer will, in and of itself, cause a
downgrade, qualification or withdrawal of the then-current
ratings assigned to any Class of Certificates; or
173
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law for the
appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for
a period of 60 days; or
(v) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to the Servicer, or
of or relating to all or substantially all of its
property; or
(vi) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its
obligations; or
(vii) the Servicer shall fail to make any Property Advance
required to be made by the Servicer hereunder (whether or
not the Trustee or the Fiscal Agent makes such Advance),
which failure continues unremedied for a period of fifteen
(15) days after the date on which such Property Advance
was first due (or for any shorter period as may be
required, if applicable, to avoid any lapse in insurance
coverage required under any Mortgage or this Agreement
with respect to any Mortgaged Property or to avoid any
foreclosure or similar action with respect to any
Mortgaged Property by reason of a failure to pay real
estate taxes and assessments, and if the Trustee makes a
required Property Advance pursuant to Section 3.08(a) due
to the Servicer's failure to make a required Advance, such
Event of Default shall occur immediately upon such
Advance); or
(viii) the Servicer shall no longer be an "approved" or
"acceptable" (or equivalent designation) servicer by each
of the Rating Agencies for mortgage pools similar to the
Trust Fund; or
(ix) ▇▇▇▇▇'▇ shall place 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 Servicer acting in
such capacity, and the Servicer shall not have resolved
all such matters to the satisfaction of ▇▇▇▇▇'▇ within
ninety (90) days thereafter; or
(x) ▇▇▇▇▇'▇ shall provide written notice to the Trustee that,
unless the Servicer resigns, it will place its ratings on
one or more Classes of Certificates on a "watch" status in
contemplation of a ratings downgrade
174
or withdrawal due to the acts, omissions or circumstances
of or involving the Servicer acting in such capacity and
the Servicer shall not have resolved all such matters to
▇▇▇▇▇'▇ satisfaction within ninety (90) days;
then, and in each and every such case, so long as a Servicer Event of Default
shall not have been remedied, the Trustee may, and at the written direction of
the Holders of at least 25% of the aggregate Voting Rights of all Certificates
shall, terminate the Servicer. In the case of clauses (iii), (viii), (ix) and
(x) above, the Trustee shall be required to notify Certificateholders of such
Servicer Event of Default and request whether such Certificateholders favor such
termination.
In the event that the Servicer is also the Special Servicer and
the Servicer is terminated as provided in this Section 7.01, the Servicer shall
also be terminated as Special Servicer.
(b) "Special Servicer Event of Default", wherever used herein,
means any one of the following events:
(i) any failure by the Special Servicer to remit to the
Collection Account any amount required to be so deposited
by the Special Servicer pursuant to and in accordance with
the terms of this Agreement which remains unremedied for
one Business Day from the due date; or
(ii) any failure on the part of the Special Servicer duly to
observe or perform in any material respect any other of
the covenants or agreements or the breach of any
representations or warranties on the part of the Special
Servicer contained in this Agreement which continues
unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be
remedied, shall have been given to the Special Servicer by
the Servicer, the Depositor or the Trustee, or to the
Special Servicer, the Servicer, the Depositor and the
Trustee by the Holders of Certificates evidencing
Percentage Interests of at least 25% of any Class affected
thereby; or
(iii) confirmation in writing by any Rating Agency that failure
to remove the Special Servicer would, in and of itself,
cause a downgrade, qualification or withdrawal of the
then-current ratings assigned to any Class of
Certificates; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law for the
appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the Special Servicer and such decree or
order shall
175
have remained in force undischarged or unstayed for a
period of 60 days; or
(v) the Special Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to the Special
Servicer, or of or relating to all or substantially all of
its property; or
(vi) the Special Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its
obligations; or
(vii) the Special Servicer shall no longer be an "approved" or
"acceptable" (or equivalent designation) special servicer
by each of the Rating Agencies for mortgage pools similar
to the Trust Fund; or
(viiii)▇▇▇▇▇'▇ shall place 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 Special Servicer
acting in such capacity, and the Special Servicer shall
not have resolved all such matters to the satisfaction of
▇▇▇▇▇'▇ within ninety (90) days thereafter; or
(ix) ▇▇▇▇▇'▇ shall provide written notice to the Trustee that,
unless the Special Servicer 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 Special Servicer acting in such capacity
and the Special Servicer shall not have resolved all such
matters to ▇▇▇▇▇'▇ satisfaction within ninety (90) days;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer. In the case of clauses
(iii), (vii), (viii) and (ix) above, the Trustee shall be required to notify
Certificateholders of such Event of Default and request whether such
Certificateholders favor such termination.
(c) In the event that the Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee (the "Terminating Party")
shall, by notice in writing to the Servicer or the Special Servicer, as the case
may be (the "Terminated Party"), terminate all of its rights and obligations
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than any rights the Terminated Party may have hereunder as a
Certificateholder and
176
any rights or obligations that accrued prior to the date of such termination
(including the right to receive all amounts accrued or owing to it under this
Agreement, plus interest at the Advance Rate on such amounts until received to
the extent such amounts bear interest as provided in this Agreement, with
respect to periods prior to the date of such termination and the right to the
benefits of Section 6.03 notwithstanding any such termination, and with respect
to the Special Servicer, its right to receive any Workout Fee subsequent to its
termination as Special Servicer, pursuant to Section 3.12(c)). On or after the
receipt by the Terminated Party of such written notice, all of its authority and
power under this Agreement, whether with respect to the Certificates (except
that the Terminated Party shall retain its rights as a Certificateholder in the
event and to the extent that it is a Certificateholder) or the Mortgage Loans or
otherwise, shall pass to and be vested in the Terminating Party pursuant to and
under this Section and, without limitation, the Terminating Party is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Terminated Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Servicer and the Special Servicer
each agree in the event it is terminated pursuant to this Section 7.01 to
promptly (and in any event no later than ten Business Days subsequent to such
notice) provide, at its own expense, the Terminating Party with all documents
and records requested by the Terminating Party to enable the Terminating Party
to assume its functions hereunder, and to cooperate with the Terminating Party
and the successor to its responsibilities hereunder in effecting the termination
of its responsibilities and rights hereunder, including, without limitation, the
transfer to the successor Servicer or Special Servicer or the Terminating Party,
as applicable, for administration by it of all cash amounts which shall at the
time be or should have been credited by the Servicer or the Special Servicer to
the Collection Account, any REO Account, Lock-Box Account or Cash Collateral
Account or which shall thereafter be received with respect to the Mortgage
Loans, and shall promptly provide the Terminating Party or such successor
Servicer or successor Special Servicer (which may include the Trustee), as
applicable, all documents and records reasonably requested by it, such documents
and records to be provided in such form as the Terminating Party or such
successor Servicer or Special Servicer shall reasonably request (including
electromagnetic form), to enable it to assume the Servicer's or Special
Servicer's function hereunder. All reasonable costs and expenses of the
Terminating Party or the successor Servicer or successor Special Servicer
incurred in connection with transferring the Mortgage Files to the successor
Servicer or Special Servicer and amending this Agreement to reflect such
succession as successor Servicer or successor Special Servicer pursuant to this
Section 7.01 shall be paid by the predecessor Servicer or the Special Servicer,
as applicable, upon presentation of reasonable documentation of such costs and
expenses. If the predecessor Servicer or Special Servicer (as the case may be)
has not reimbursed the Terminating Party or the successor Servicer or Special
Servicer for such expenses within 90 days after the presentation of reasonable
documentation, such expense shall be reimbursed by the Trust Fund; provided that
the Terminated Party shall not thereby be relieved of its liability for such
expenses. If and to the extent that the Terminated Party has not reimbursed such
costs and expenses, the Terminating Party shall have an affirmative obligation
to take all reasonable actions to collect such expenses on behalf of the Trust
Fund.
177
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer
receives a notice of termination pursuant to Section 7.01, the Terminating Party
shall be its successor in all respects in its capacity as Servicer or Special
Servicer under this Agreement and the transactions set forth or provided for
herein and, except as provided herein, shall be subject to all the
responsibilities, duties, limitations on liability and liabilities relating
thereto and arising thereafter placed on the Servicer or Special Servicer by the
terms and provisions hereof, provided, however, that (i) the Terminating Party
shall have no responsibilities, duties, liabilities or obligations with respect
to any act or omission of the Servicer or Special Servicer and (ii) any failure
to perform, or delay in performing, such duties or responsibilities caused by
the Terminated Party's failure to provide, or delay in providing, records,
tapes, disks, information or monies shall not be considered a default by such
successor hereunder. The Trustee, as successor Servicer or successor Special
Servicer, shall be indemnified to the full extent provided the Servicer or
Special Servicer, as applicable, under this Agreement prior to the Servicer's or
the Special Servicer's termination. The appointment of a successor Servicer or
successor Special Servicer shall not affect any liability of the predecessor
Servicer or Special Servicer which may have arisen prior to its termination as
Servicer or Special Servicer. The Terminating Party shall not be liable for any
of the representations and warranties of the Servicer or Special Servicer herein
or in any related document or agreement, for any acts or omissions of the
predecessor Servicer or predecessor Special Servicer or for any losses incurred
in respect of any Permitted Investment by the Servicer pursuant to Section 3.07
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Terminating Party as successor Servicer
or successor Special Servicer shall be entitled to the Servicing Compensation or
Special Servicing Compensation, as applicable, and all funds relating to the
Mortgage Loans that accrue after the date of the Terminating Party's succession
to which the Servicer or Special Servicer would have been entitled if the
Servicer or Special Servicer, as applicable, had continued to act hereunder. In
the event any Advances made by the Servicer, the Trustee or the Fiscal Agent
shall at any time be outstanding, or any amounts of interest thereon shall be
accrued and unpaid, all amounts available to repay Advances and interest
hereunder shall be applied entirely to the Advances made by the Trustee or the
Fiscal Agent (and the accrued and unpaid interest thereon), until such Advances
and interest shall have been repaid in full. Notwithstanding the above, the
Trustee may, if it shall be unwilling to so act, or shall (i) if it is unable to
so act, (ii) if the Holders of Certificates entitled to at least 25% of the
aggregate Voting Rights so request in writing to the Trustee, (iii) if neither
the Trustee nor the Fiscal Agent is rated by each Rating Agency in one of its
two highest long-term debt rating categories or (iv) if the Rating Agencies do
not provide written confirmation that the succession of the Trustee, as Servicer
or Special Servicer, as applicable, will not cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings assigned to any Class of Certificates as evidenced in writing
by each Rating Agency, as the successor to the Servicer or Special Servicer, as
applicable, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer or Special Servicer
hereunder. No appointment of a successor to the Servicer or Special Servicer
hereunder shall be effective until
178
the assumption by such successor of all the Servicer's or Special Servicer's
responsibilities, duties and liabilities hereunder. Pending appointment of a
successor to the Servicer (or the Special Servicer if the Special Servicer is
also the Servicer) hereunder, unless the Trustee shall be prohibited by law from
so acting, the Trustee shall act in such capacity as hereinabove provided.
Pending the appointment of a successor to the Special Servicer, unless the
Servicer is also the Special Servicer, the Servicer shall act in such capacity.
In connection with such appointment and assumption described herein, the Trustee
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
Terminated Party hereunder, provided, further, that if no successor to the
Terminated Party can be obtained to perform the obligations of such Terminated
Party hereunder, additional amounts shall be paid to such successor and such
amounts in excess of that permitted the Terminated Party shall be treated as
Realized Losses. The Depositor, the Trustee, the Servicer or Special Servicer
and such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or
appointment of a successor to the Servicer or the Special Servicer, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and to each Rating
Agency.
(b) Within 30 days after the occurrence of any Event of
Default of which a Responsible Officer of the Trustee has actual knowledge, the
Trustee shall transmit by mail to all Holders of Certificates and to each Rating
Agency notice of such Event of Default, unless such Event of Default shall have
been cured or waived.
SECTION 7.04. Other Remedies of Trustee.
During the continuance of any Servicer Event of Default or a
Special Servicer Event of Default, so long as such Servicer Event of Default or
Special Servicer Event of Default, if applicable, shall not have been remedied,
the Trustee, in addition to the rights specified in Section 7.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). In such event, the legal fees, expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06.
Except as otherwise expressly provided in this Agreement, no remedy provided for
by this Agreement shall be exclusive of any other remedy, and each and every
remedy shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or
179
shall be deemed to be a waiver of any Servicer Event of Default or Special
Servicer Event of Default, if applicable.
SECTION 7.05. Waiver of Past Events of Default; Termination.
The Holders of Certificates evidencing not less than 66-2/3% of
the aggregate Voting Rights of the Certificates may, on behalf of all Holders of
Certificates, waive any default by the Servicer or Special Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits (including P&I Advances) to or payments from the
Collection Account or the Distribution Account or in remitting payments as
received, in each case in accordance with this Agreement. Upon any such waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
ARTICLE VIII.
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default of which a Responsible Officer of the Trustee has actual knowledge and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement and no permissive right of the Trustee shall he
construed as a duty. During the continuance of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee, subject to
the provisions of Sections 7.02 and 7.05 shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) The Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform on their face to the requirements of this
Agreement; provided, however, that, the Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument provided to it hereunder. If any
such instrument is found not to conform on its face to the requirements of this
Agreement in a material manner, the Trustee shall request the provider of such
instrument to have the instrument corrected, and if the instrument is not
corrected to the Trustee's reasonable satisfaction, the Trustee will provide
notice thereof to the Certificateholders.
(c) Neither the Trustee nor any of its officers, directors,
employees, agents or "control" persons within the meaning of the Act shall have
any liability arising out of or in connection with this Agreement, provided,
that, subject to Section 8.02, no provision of this
180
Agreement shall be construed to relieve the Trustee, or any such person, from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct or its own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge,
and after the curing or waiver of all such Events of
Default which may have occurred, the duties and
obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee
shall not be liable except for the performance of such
duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any resolutions, certificates, statements,
reports, opinions, documents, orders or other instruments
furnished to the Trustee that conform on their face to the
requirements of this Agreement to the extent set forth
herein without responsibility for investigating the
contents thereof;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of
Certificates entitled to greater than 50% of the
Percentage Interests (or such other percentage as is
specified herein) of each affected Class, or of the
aggregate Voting Rights of the Certificates, relating to
the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this
Agreement;
(iv) Neither the Trustee nor any of its respective directors,
officers, employees, agents or control persons shall be
responsible for any act or omission of any Custodian,
Paying Agent or Certificate Registrar that is not an
Affiliate of the Trustee and that is selected other than
by the Trustee, performed or omitted in compliance with
any custodial or other agreement, or any act or omission
of the Servicer, Special Servicer, the Depositor or any
other Person, including, without limitation, in connection
with actions taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear
in, prosecute or defend any legal action which is not
incidental to its respective duties as Trustee in
accordance with this Agreement (and, if it does, all legal
expenses and costs of such action shall be expenses and
costs of the Trust
181
Fund), and the Trustee shall be entitled to be reimbursed
therefor from the Collection Account, unless such legal
action arises out of the negligence or bad faith of the
Trustee or any breach of an obligation, representation,
warranty or covenant of the Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of any
act, failure to act or breach of any Person upon the
occurrence of which the Trustee may be required to act,
unless a Responsible Officer of the Trustee obtains actual
knowledge of such failure. The Trustee shall be deemed to
have actual knowledge of the Servicer's or the Special
Servicer's failure to provide scheduled reports,
certificates and statements when and as required to be
delivered to the Trustee pursuant to this Agreement.
None of the provisions contained in this Agreement shall require
either the Trustee, in its capacity as Trustee, or the Fiscal Agent, to expend
or risk its own funds, or otherwise incur financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if in the opinion of the Trustee or the Fiscal Agent, respectively, the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the Servicer or the
Special Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Servicer or the Special Servicer in accordance with the
terms of this Agreement. Neither the Trustee nor the Fiscal Agent shall be
required to post any surety or bond of any kind in connection with its
performance of its obligations under this Agreement and neither the Trustee nor
the Fiscal Agent shall be liable for any loss on any investment of funds
pursuant to this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall
be protected in acting or refraining from acting
upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be
genuine and to have been signed or presented by the
proper party or parties and the Trustee shall have
no responsibility to ascertain or confirm the
genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete
authorization and protection in respect
182
of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such
Opinion of Counsel;
(iii) (A) The Trustee shall be under no obligation to
institute, conduct or defend any litigation
hereunder or in relation hereto at the request,
order or direction of any of the
Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which may be incurred therein or
thereby, provided that nothing contained herein
shall relieve the Trustee of the obligations, upon
the occurrence of an Event of Default (which has
not been cured or waived) of which a Responsible
Officer of the Trustee has actual knowledge, to
exercise such of the rights and powers vested in it
by this Agreement, and to use the same degree of
care and skill in their exercise, as a prudent
person would exercise or use under the
circumstances in the conduct of such person's own
affairs; and (B) the right of the Trustee to
perform any discretionary act enumerated in this
Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance
of any such act.
(iv) Neither the Trustee nor any of its directors,
officers, employees, Affiliates, agents or
"control" persons within the meaning of the Act
shall be personally liable for any action taken,
suffered or omitted by it in good faith and
reasonably believed by the Trustee to be authorized
or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) The Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document, unless
requested in writing to do so by Holders of
Certificates entitled to at least 25% (or such
other percentage as is specified herein) of the
Percentage Interests of any affected Class;
provided, however, that if the payment within a
reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or
liability as a condition to taking any such action.
The reasonable expense of every such investigation
shall be paid by the Servicer or the Special
Servicer if an Event of Default shall have occurred
and be continuing relating to the Servicer, or
183
the Special Servicer, respectively, and otherwise
by the Certificateholders requesting the
investigation; and
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either
directly or by or through agents or attorneys but
shall not be relieved of the obligations hereunder.
(b) Following the Startup Day, the Trustee shall not, except
as expressly required by any provision of this Agreement, accept any
contribution of assets to the Trust Fund unless the Trustee shall have received
an Opinion of Counsel (the costs of obtaining such opinion to be borne by the
Person requesting such contribution) to the effect that the inclusion of such
assets in the Trust Fund will not cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, or the
Grantor Trust to fail to qualify as a grantor trust, at any time that any
Certificates are outstanding or subject any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC Provisions
or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility
of any Mortgage Loan for purposes of this Agreement.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not
be taken as the statements of the Trustee, the Fiscal Agent, the Servicer, or
the Special Servicer and the Trustee, the Fiscal Agent, the Servicer and the
Special Servicer assume no responsibility for their correctness. The Trustee,
the Fiscal Agent, the Servicer and the Special Servicer make no representations
or warranties as to the validity or sufficiency of this Agreement, of the
Certificates or any prospectus used to offer the Certificates for sale or the
validity, enforceability or sufficiency of any Mortgage Loan, or related
document. Neither the Trustee nor the Fiscal Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage, any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement. Without limiting the foregoing, neither the Trustee nor the Fiscal
Agent shall be liable or responsible for: the existence, condition and ownership
of any
184
Mortgaged Property; the existence of any hazard or other insurance thereon
(other than if the Trustee shall assume the duties of the Servicer or the
Special Servicer pursuant to Section 7.02) or the enforceability thereof; the
existence of any Mortgage Loan or the contents of the related Mortgage File on
any computer or other record thereof (other than if the Trustee shall assume the
duties of the Servicer or the Special Servicer pursuant to Section 7.02); the
validity of the assignment of any Mortgage Loan to the Trust Fund or of any
intervening assignment; the completeness of any Mortgage File; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Servicer or the Special Servicer pursuant to Section 7.02); the
compliance by the Depositor, the Servicer or the Special Servicer with any
warranty or representation made under this Agreement or in any related document
or the accuracy of any such warranty or representation prior to the Trustee's
receipt of notice or other discovery of any non-compliance therewith or any
breach thereof; any investment of monies by or at the direction of the Servicer
or any loss resulting therefrom, it being understood that the Trustee shall
remain responsible for any Trust Fund property that it may hold in its
individual capacity; the acts or omissions of any of the Depositor, the Servicer
or the Special Servicer (other than if the Trustee shall assume the duties of
the Servicer or Special Servicer pursuant to Section 7.02) or any subservicer or
any Borrower; any action of the Servicer or Special Servicer (other than if the
Trustee shall assume the duties of the Servicer or Special Servicer pursuant to
Section 7.02) or any subservicer taken in the name of the Trustee, except to the
extent such action is taken at the express written direction of the Trustee; the
failure of the Servicer or the Special Servicer or any subservicer to act or
perform any duties required of it on behalf of the Trust Fund or the Trustee
hereunder; or any action by or omission of the Trustee taken at the instruction
of the Servicer or the Special Servicer (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02)
unless the taking of such action is not permitted by the express terms of this
Agreement; provided, however, that the foregoing shall not relieve the Trustee
of its obligation to perform its duties as specifically set forth in this
Agreement. Neither the Trustee nor the Fiscal Agent shall be accountable for the
use or application by the Depositor, the Servicer or the Special Servicer of any
of the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, the Servicer or the Special
Servicer in respect of the assignment of the Mortgage Loans or deposited in or
withdrawn from the Collection Account, Distribution Account, Middle-Tier
Distribution Account, Upper-Tier Distribution Account, Lock-Box Account, Cash
Collateral Account, Reserve Accounts, Default Interest Distribution Account or
Excess Interest Distribution Account or any other account maintained by or on
behalf of the Servicer or the Special Servicer, other than any funds held by the
Trustee or the Fiscal Agent, as applicable. Neither the Trustee nor the Fiscal
Agent shall have any responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Servicer) or to record this
Agreement. In making any calculation hereunder which includes as a component
thereof the payment or distribution of interest for a stated period at a stated
rate "to the extent permitted by applicable law," the Trustee shall assume that
such payment is so permitted unless a Responsible Officer of the Trustee has
actual knowledge, or receives an Opinion of Counsel (at the expense of the
Person asserting the impermissibility) to the effect, that such payment is not
permitted by applicable law.
185
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent and any agent of the Trustee and
Fiscal Agent in its individual capacity or any other capacity may become the
owner or pledgee of Certificates, and may deal with the Depositor and the
Servicer in banking transactions, with the same rights it would have if it were
not Trustee, Fiscal Agent or such agent.
SECTION 8.05. Payment of Trustee's Fees and Expenses;
Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on
each Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Servicer or the Special Servicer hereunder pursuant to
or otherwise arising from the resignation or removal of the Servicer or the
Special Servicer, the Trustee shall be entitled to the compensation to which the
Servicer or the Special Servicer, as the case may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or
reimbursed by the Trust Fund upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee or the Fiscal Agent
pursuant to and in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) to the extent set forth
herein and to the extent such payments are "unanticipated expenses incurred by
the REMIC" within the meaning of Treasury Regulations Section l.860G-l(b)(iii)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith; provided, however, that, subject to the last paragraph
of Section 8.01, neither the Trustee nor the Fiscal Agent shall refuse to
perform any of its duties hereunder solely as a result of the failure to be paid
the Trustee Fee and the Trustee's expenses or any sums due to the Fiscal Agent.
The term "unanticipated expenses incurred by the REMIC" shall include any fees,
expenses and disbursement of any separate trustee or co-trustee appointed
hereunder, only to the extent such fees, expenses and disbursements were not
reasonably anticipated as of the Closing Date and are attributable to any Trust
REMIC or the grantor trust and the losses, liabilities, damages, claims or
expenses (including reasonable attorneys' fees) incurred or advanced by an
Indemnified Party in connection with any litigation arising out of this
Agreement attributable to any Trust REMIC or the grantor trust, including,
without limitation, under Section 2.03, Section 3.10, the third paragraph of
Section 3.11, Section 4.05 and Section 7.01. In addition, the Trustee shall be
paid or reimbursed by the Trust Fund upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
connection with its administration of the separate grantor trust entitled the
Elder Trust Loan Trust.
186
The Servicer and the Special Servicer covenant and agree to pay
or reimburse the Trustee for the reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with any transfer of the servicing
responsibilities of the Servicer or the Special Servicer, respectively,
hereunder, pursuant to or otherwise arising from the resignation or removal of
the Servicer, in accordance with any of the provisions of this Agreement (and
including the reasonable fees and expenses and disbursements of its counsel and
all other persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from the negligence or bad faith of the
Trustee.
(c) Each of the Paying Agent, the Certificate Registrar, the
Custodian, the Depositor, the Servicer and the Special Servicer (each, an
"Indemnifying Party") shall indemnify the Trustee and the Fiscal Agent and their
respective Affiliates and each of the directors, officers, employees and agents
of the Trustee, the Fiscal Agent and their respective Affiliates (each, an
"Indemnified Party"), and hold each of them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
the Indemnified Party may sustain in connection with this Agreement (including,
without limitation, reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to each such Indemnifying Party's respective willful
misconduct, bad faith, fraud or negligence in the performance of each of its
respective duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder (including in the case of the Servicer, any
agent of the Servicer or subservicer).
(d) The Trust Fund shall indemnify each Indemnified Party
from, and hold it harmless against, any and all losses, liabilities, damages,
claims or unanticipated expenses (including, without limitation, reasonable fees
and disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates other than (i) those resulting from the
negligence, fraud, bad faith or willful misconduct of the Indemnified Party and
(ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(c). The right of reimbursement of the Indemnified
Parties under this Section 8.05(d) shall be senior to the rights of all
Certificateholders.
(e) Notwithstanding anything herein to the contrary, this
Section 8.05 shall survive the termination or maturity of this Agreement or the
resignation or removal of the Trustee or the Fiscal Agent, as the case may be,
as regards rights accrued prior to such resignation or removal and (with respect
to any acts or omissions during their respective tenures) the resignation,
removal or termination of the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include,
but not be limited to, such indemnities, compensation, expenses, disbursements,
advances, losses,
187
liabilities, damages and the like, as may pertain or relate to any environmental
law or environmental matter.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate trust
powers and to accept the trust conferred under this Agreement, having a combined
capital and surplus of at least $50,000,000 and a rating on its unsecured
long-term debt of at least "BBB" by Fitch and "Baa2" by ▇▇▇▇▇'▇ (or at any time
when there is no Fiscal Agent appointed and acting hereunder or any such Fiscal
Agent so appointed has a rating on its long-term unsecured debt that is lower
than "AA" by Fitch and "Aa2" by ▇▇▇▇▇'▇ (without regard to any plus or minus or
numeric qualifier) the rating on the unsecured long term debt of the Trustee
must be at least "AA" by Fitch and "Aa2" by ▇▇▇▇▇'▇, or meet different standards
provided that each Rating Agency shall have confirmed in writing that such
different standards would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates) and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Servicer (except during any
period when the Trustee has assumed the duties of the Servicer pursuant to
Section 7.02); provided that, notwithstanding that the long-term unsecured debt
of LaSalle National Bank and ABN AMRO Bank N.V. are not rated by Fitch, LaSalle
National Bank shall not fail to qualify as Trustee solely by virtue of the lack
of such ratings until such time as Fitch shall notify the Trustee, the Servicer
and the Special Servicer in writing that LaSalle National Bank is no longer
exempt from the foregoing rating requirements imposed by this sentence. If a
corporation or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for purposes of this Section the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If the place of
business from which the Trustee administers the Trust Fund is a state or local
jurisdiction that imposes a tax on the Trust Fund or the net income of any Trust
REMIC (other than a tax corresponding to a tax imposed under the REMIC
Provisions) the Trustee shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax and
continue as Trustee or (iii) administer the Trust Fund from a state and local
jurisdiction that does not impose such a tax. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and each Rating Agency. Upon such notice of
resignation, the Fiscal Agent shall also be deemed to have been removed and,
accordingly, the Servicer shall promptly appoint a successor Trustee, the
appointment of which would not, as evidenced in writing, in and of itself,
result in a downgrade, qualification or withdrawal by any Rating Agency of the
then-current ratings assigned to the
188
Certificates, and a successor Fiscal Agent (if necessary to satisfy the
requirements contained in Section 8.06), the appointment of which, if the
successor Trustee is not rated by each Rating Agency in one of its two highest
long-term debt rating categories, would not, as evidenced in writing, in and of
itself, result in a downgrade, qualification or withdrawal by any Rating Agency
of the then-current ratings assigned to the Certificates), by written
instrument, in triplicate, which instrument shall be delivered to the resigning
Trustee, with a copy to the Fiscal Agent deemed removed, and the successor
Trustee and successor Fiscal Agent. If no successor Trustee and successor
Fiscal Agent shall have been so appointed and have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Trustee
and the Fiscal Agent may petition any court of competent jurisdiction for the
appointment of a successor Trustee and successor Fiscal Agent.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or upon a confirmation in writing by any Rating Agency that not
terminating the Trustee, or the Fiscal Agent, as applicable, would, in and of
itself, cause the then-current rating assigned to any Class of Certificates to
be qualified, withdrawn or downgraded, then the Depositor or the Servicer may
remove the Trustee and the Fiscal Agent and the Servicer shall promptly appoint
a successor Trustee and successor Fiscal Agent by written instrument, which
shall be delivered to the Trustee and the Fiscal Agent so removed and to the
successor Trustee and the successor Fiscal Agent.
The Holders of Certificates entitled to at least 50% of the
Voting Rights may at any time remove the Trustee and the Fiscal Agent (and any
removal of the Trustee shall be deemed to be a removal also of the Fiscal Agent)
and appoint a successor Trustee and successor Fiscal Agent by written instrument
or instruments, in seven originals, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Servicer, one complete
set to the Trustee so removed, one complete set to the Fiscal Agent deemed
removed, one complete set to the successor Trustee so appointed and one complete
set to the successor Fiscal Agent so appointed.
In addition, if the Trustee is terminated without cause, the
terminating party shall pay all of the expenses of the Trustee necessary to
effect the transfer of its responsibilities to the successor Trustee.
In the event of removal of the Trustee the Fiscal Agent shall be
deemed to have been removed.
In the event that the Trustee or Fiscal Agent is terminated or
removed pursuant to this Section 8.07, all of its rights and obligations under
this Agreement and in and to the Mortgage Loans shall be terminated, other than
any rights or obligations that accrued prior to the date of such termination or
removal (including the right to receive all fees, expenses and other
189
amounts accrued or owing to it under this Agreement, plus interest at the
Advance Rate on all such amounts until received to the extent such amounts bear
interest as provided in this Agreement, with respect to periods prior to the
date of such termination or removal).
Any resignation or removal of the Trustee and Fiscal Agent and
appointment of a successor Trustee and, if such trustee is not rated by each
Rating Agency in one of its two highest long-term debt rating categories, a
successor Fiscal Agent pursuant to any of the provisions of this Section 8.07
shall not become effective until acceptance of appointment by the successor
Trustee and, if necessary, successor Fiscal Agent as provided in Section 8.08.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any successor Fiscal Agent
appointed as provided in Section 8.07 shall execute, acknowledge and deliver to
the Depositor, the Servicer and to the predecessor Trustee and predecessor
Fiscal Agent, as the case may be, instruments accepting their appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
and predecessor Fiscal Agent shall become effective and such successor Trustee
and successor Fiscal Agent, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Fiscal Agent herein, provided that the appointment of such successor Trustee and
successor Fiscal Agent shall not, as evidenced in writing, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates. The predecessor Trustee shall deliver to the successor Trustee
all Mortgage Files and related documents and statements held by it hereunder,
and the Depositor and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations. No successor Trustee shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor Trustee shall be eligible under the provisions of
Section 8.06.
Upon acceptance of appointment by a successor Trustee as provided
in this Section 8.08. the Depositor shall mail notice of the succession of such
Trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor Trustee or Fiscal Agent appointed pursuant
to this Agreement shall satisfy the eligibility requirements set forth in
Section 8.06 hereof.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of
190
Section 8.06, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act (at the expense of the Trustee) as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. Except as required by applicable law, the appointment of a
co-trustee or separate trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor Trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement. The
Depositor and the Trustee acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee, or if the separate trustee or
co-trustee is an employee of the Trustee, the Trustee acting alone may accept
the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Every such instrument shall be filed with
the
191
Trustee. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of, affecting the liability of or affording protection
to such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time, constitute
the Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal
Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the
initial Fiscal Agent hereunder for the purposes of exercising and performing the
obligations and duties imposed upon the Fiscal Agent by Sections 3.24 and 4.06.
(b) The Fiscal Agent undertakes to perform such duties and
only such duties as are specifically set forth in Sections 3.24 and 4.06.
(c) No provision of this Agreement shall be construed to
relieve the Fiscal Agent from liability for its own negligent failure to act or
its own willful misfeasance or for a breach of a representation or warranty
contained herein; provided, however, that (i) the duties and obligations of the
Fiscal Agent shall be determined solely by the express provisions of Sections
3.24 and 4.06, the Fiscal Agent shall not be liable except for the performance
of such duties and obligations, no implied covenants or obligations shall be
read into this Agreement against the Fiscal Agent and, in the absence of bad
faith on the part of the Fiscal Agent, the Fiscal Agent may conclusively rely,
as to the truth and correctness of the statements or conclusions expressed
therein, upon any resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Fiscal Agent by the
Depositor, the Servicer, the Special Servicer or the Trustee and which on their
face do not contradict the requirements of this Agreement, and (ii) the
provisions of clause (ii) of Section 8.01(c) shall apply to the Fiscal Agent.
(d) Except as otherwise provided in Section 8.11(c), the
Fiscal Agent also shall have the benefit of provisions of clauses (i), (ii),
(iii) (other than the proviso thereto), (iv), (v) (other than the proviso
thereto) and (vi) of Section 8.02(a).
192
SECTION 8.12. Year 2000 Representation.
The Trustee represents that it will use reasonable commercial
efforts to cure (by August 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.
ARTICLE IX.
TERMINATION
SECTION 9.01. Termination.
(a) The respective obligations and responsibilities of the
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created hereby with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate upon the earliest to occur of (i) the
repurchase of the Mortgage Loans by the Servicer or the Holder of the Class LR
Certificates as described in Section 9.01(c); and (ii) the later of (a) the
receipt or collection of the last payment due on any Mortgage Loan included in
the Trust Fund, or (b) the liquidation and disposition pursuant to this
Agreement of the last asset held by the Trust Fund; provided, however, that in
no event shall the trust created hereby continue beyond the expiration of
twenty-one years from the death of the last survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the United
Kingdom, living on the date hereof.
(b) The Trust Fund, the Upper-Tier REMIC, the Middle-Tier
REMIC and the Lower-Tier REMIC shall be terminated and the assets of the Trust
Fund shall be sold or otherwise disposed of in connection therewith, only
pursuant to a "plan of complete liquidation" within the meaning of Code Section
860F(a)(4)(A) providing for the actions contemplated by the provisions hereof
and pursuant to which the applicable Notice of Termination is given, and
requiring that the Trust Fund, the Upper-Tier REMIC, the Middle-Tier REMIC and
the Lower-Tier REMIC shall terminate on a Distribution Date occurring not more
than 90 days following the date of adoption of the plan of complete liquidation.
For purposes of this Section 9.01(b), the Notice of Termination given pursuant
to Section 9.01(c) shall constitute the adoption of the plan of complete
liquidation as of the date such notice is given, which date shall be specified
by the Servicer in the final federal income tax returns of the Upper-Tier REMIC,
the Middle-Tier REMIC and the Lower-Tier REMIC. Notwithstanding the termination
of the Trust REMICs or the Trust Fund, the Trustee shall be responsible for
filing the final Tax Returns for the Trust
193
REMICs and applicable income tax or information returns for the Grantor Trust
for the period ending with such termination, and shall retain books and records
with respect to the Trust REMICs and the Grantor Trust for the same period of
retention for which it maintains its own tax returns or such other reasonable
period.
(c) The Servicer, and if the Servicer does not exercise its
option, any holder of a Class LR Certificate representing greater than a 50%
Percentage Interest in such Class, may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
all property acquired in respect of any Mortgage Loan, at a purchase price,
payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of the
last day of the month preceding such Distribution
Date (less any P&I Advances previously made on
account of principal);
(B) the fair market value of all other property
included in the Trust Fund as of the last day of
the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable
to the Servicer as of the date not more than 30
days prior to the last day of the month preceding
such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including for
this purpose any Mortgage Loan as to which title to
the related Mortgaged Property has been acquired)
at the Mortgage Rate (plus the Excess Rate, to the
extent applicable), to the last day of the month
preceding such Distribution Date (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage
Loan in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer as of a
date not more than 30 days prior to the last day of the
month preceding such
194
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to this Section 9.01(c) shall
be borne by the party exercising its purchase rights hereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to this subsection (c).
Anything in this Section 9.01 to the contrary notwithstanding,
the holders of the Class Q-l Certificates shall receive that portion of the
proceeds of a sale of the assets of the Trust Fund allocable to the Net Default
Interest, as their interests may appear, and the holders of the Class Q-2
Certificates shall receive that portion of the proceeds of a sale of the assets
of the Trust Fund allocable to Excess Interest, as their interests may appear.
(d) If the Trust Fund has not been previously terminated
pursuant to subsection (c) of this Section 9.01, the Trustee shall determine as
soon as practicable the Distribution Date on which the Trustee reasonably
anticipates, based on information with respect to the Mortgage Loans previously
provided to it, that the final distribution will be made (i) to the Holders of
outstanding Regular Certificates, and to the Trustee in respect of outstanding
Middle-Tier Regular Interests and Lower-Tier Regular Interests, notwithstanding
that such distribution may be insufficient to distribute in full the Certificate
Balance, Middle-Tier Balance or Lower-Tier Balance of each Certificates,
Middle-Tier Regular Interest or Lower-Tier Regular Interests, as the case may
be, together with amounts required to be distributed on such Distribution Date
pursuant to Section 4.01(a), (b), or (c); or (ii) if no such Classes of
Certificates are then outstanding, to the Holders of the Class LR Certificates
of any amount remaining in the Collection Account or the Distribution Account,
to the Holders of the Class MR Certificates of any amount remaining in the
Middle-Tier Distribution Account, and to the Holders of the Class R Certificates
of any amount remaining in the Upper-Tier Distribution Account, and (iii) to the
Holders of the Class Q-1 and Class Q-2 Certificates, any amounts beneficially
owned by such Holders in respect of their respective interests in the Grantor
Trust, in any case, following the later to occur of (A) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund or (B) the liquidation or disposition pursuant to Section 3.18 of the last
asset held by the Trust Fund,.
(e) Notice of any termination of the Trust Fund pursuant to
this Section 9.01 shall be mailed by the Trustee to affected Certificateholders
with a copy to the Servicer and each Rating Agency at their addresses shown in
the Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the
final distribution is anticipated to be made to Holders of
Certificates of the Classes specified therein;
195
(ii) specify the amount of any such final distribution, if
known; and
(iii) state that the final distribution to Certificateholders
will be made only upon presentation and surrender of
Certificates at the office of the Paying Agent therein
specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because
of the failure of any Certificateholders to tender their Certificates shall be
set aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Residual Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any such amounts transferred to
the Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
SECTION 10.02. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, or entitle such
Certificateholder's legal representatives or heirs to
196
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust Fund, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, and
nothing herein set forth, or contained in the terms of the Certificates, shall
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; and no Certificateholder shall be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement or any Mortgage Loan, unless such Holder previously shall have given
to the Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates of any Class shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Notices.
All demands, notices and communications hereunder shall be in
writing, shall be deemed to have been given upon receipt (except that notices to
Holders of Class Q-l, Class Q-2, Class R, Class MR and Class LR Certificates or
Holders of any Class of Certificates no longer held through a Depository and
instead held in registered, definitive form shall be deemed to have
197
been given upon being sent by first class mail, postage prepaid or by overnight
courier) as follows:
If to the Trustee, to:
LaSalle National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset-Backed Securities
Trust Services Group, COMM 1999-Cl
If to the Fiscal Agent, to:
ABN AMRO Bank N.V.
c/o LaSalle National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset-Backed Securities
Trust Services Group, COMM 1999-Cl
If to the Depositor, to:
Deutsche Mortgage & Asset Receiving Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Servicer, to:
Banc One Mortgage Capital Markets, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
198
With a copy to:
Banc One Mortgage Capital Markets, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
If to the Special Servicer, to:
Banc One Mortgage Capital Markets, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
With a copy to:
Banc One Mortgage Capital Markets, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
If to the Mortgage Loan Seller, to:
German American Capital Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
If to the Underwriters, to:
Deutsche Bank Securities, Inc.
Commercial Mortgage-Backed Securities
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
New York, N.Y. 10285
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
199
If to any Certificateholder, to:
the address set forth
in the Certificate
Register,
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
SECTION 10.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then,
to the extent permitted by applicable law, such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
SECTION 10.06. Notice to the Depositor and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide
notice to the Depositor, the Underwriters and each Rating Agency with respect to
each of the following of which a Responsible Officer of the Trustee has actual
knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the merger, consolidation, resignation or termination of
the Servicer, Special Servicer, the Trustee or Fiscal
Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section
2.03(d) or 2.03(e);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account, the
Distribution Account, the Middle-Tier Distribution
Account, or the Upper-Tier Distribution Account;
(vii) any event that would result in the voluntary or
involuntary termination of any insurance of the accounts
of the Servicer;
(viii) each report to Certificateholders described in Section
4.02 and Section 3.22;
(ix) any change in the lien priority of a Mortgage Loan;
200
(x) any new lease of an anchor or a termination of an anchor
lease at a retail Mortgaged Property if the principal
balance of the related Mortgage Loan is greater than 5% of
the then-current Stated Principal Balance of the Mortgage
Loans;
(xi) any termination of licensing certification at a Mortgaged
Property securing a Healthcare Loan;
(xii) any material damage to a Mortgaged Property; and
(xiii) any amendment, modification, consent or waiver to or of
any provision of a Mortgage Loan.
(b) The Servicer shall promptly furnish to each Rating Agency
copies of the following:
(i) each of its annual statements as to compliance described
in Section 3.14;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.15;
(iii) a copy of each rent roll and each operating and other
financial statement and occupancy reports, to the extent
such information is required to be delivered under a
Mortgage Loan, in each case to the extent collected
pursuant to Section 3.03; however, with respect to Fitch,
the Servicer shall provide only the quarterly and annual
statements or reports;
(iv) a copy of any notice with respect to a breach of a
representation or warranty with respect to any Mortgage
Loan;
(v) any change in the lien priority of a Mortgage Loan;
(vi) any new lease of an anchor or a termination of an anchor
lease at a retail Mortgaged Property;
(vii) any termination of licensing certification at a Mortgaged
Property securing a Healthcare Loan;
(viii) any material damage to a Mortgaged Property; and
(ix) any amendment, modification, consent or waiver to or of
any provision of a Mortgage Loan.
(c) The Servicer shall furnish each Rating Agency and the
Depositor with such information with respect to the Trust Fund, a Mortgaged
Property, a Borrower and a non-performing or Specially Serviced Mortgage Loan as
such Rating Agency or the Depositor shall reasonably request and which the
Servicer can reasonably obtain. The Rating Agencies shall not
201
be charged any fee or expense in connection therewith. The Servicer shall send
copies to the Depositor of any information provided to any Rating Agency.
(d) Notices to each Rating Agency shall be addressed as
follows:
Fitch Investors Service, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Mortgage Surveillance
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Mortgage Surveillance Group
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto.
SECTION 10.07. Amendment.
This Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders, (i)
to cure any ambiguity, (ii) to correct or supplement any provisions herein or
therein that may be defective or inconsistent with any other provisions herein
or therein, (iii) to amend any provision hereof to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions herein or therein that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (v)
to make any other provisions with respect to matters or questions arising under
this Agreement, which shall not be inconsistent with the provisions of this
Agreement and will not result in a downgrade, qualification or withdrawal of the
then-current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
This Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor. the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of each of the
Classes of Regular Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected by the amendment for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
202
(i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required
to be distributed on any Certificate without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action
or inaction under this Agreement, without the consent of
the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
hereby;
(iii) alter the Servicing Standard or the obligations of the
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without
the consent of the Holders of Certificates representing
all of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section hereof which relates to the amendment of
this Agreement without the consent of the Holders of
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend this Agreement to modify, eliminate
or add to any of its provisions to such extent as shall be necessary to maintain
the qualification of Trust REMICs as three separate REMICs, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder.
In the event that neither the Depositor nor any successor
thereto, if any, is in existence, any amendment under this Section 10.07 shall
be effective with the consent of the Trustee, the Fiscal Agent, and the
Servicer, in writing, and to the extent required by this Section, the
Certificateholders. Promptly after the execution of any amendment, the Servicer
shall forward to the Trustee and the Trustee shall furnish written notification
of the substance of such amendment to each Certificateholder and each Rating
Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.07 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The method of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe; provided, however,
that such method shall always be by affirmation and in writing.
203
Notwithstanding any contrary provision of this Agreement, no
amendment shall be made to this Agreement or any Custodial Agreement unless the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by either Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in clause (i), (ii) or (iii) of the first sentence of this
Section, then at the expense of the Trust Fund), to the effect that such
amendment will not cause any of the Upper-Tier REMIC, the Middle-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any REMIC
Certificates are outstanding or cause a tax to be imposed on the Trust Fund or
any Trust REMIC under the REMIC Provisions (other than a tax at the highest
marginal corporate tax rate on net income from foreclosure property) or any
other provision of federal, state or local law or ordinances.
Prior to the execution of any amendment to this Agreement or any
Custodial Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the
Servicer may request and shall be entitled to rely conclusively upon an Opinion
of Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by either Rating Agency to maintain the rating issued by
it or requested by the Trustee for any purpose described in clause (i), (ii),
(iii) or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the
conveyance of the Trust Fund (including the Mortgage Loans) by the Depositor to
the Trustee on behalf of Certificateholders as contemplated by this Agreement
and the sale by the Depositor of the Certificates be, and be treated for all
purposes as, a sale by the Depositor of the undivided portion of the beneficial
interest in the Trust Fund represented by the Certificates. It is, further, not
the intention of the parties that such conveyance be deemed a pledge of the
Trust Fund by the Depositor to the Trustee to secure a debt or other obligation
of the Depositor. However, in the event that, notwithstanding the intent of the
parties, the Trust Fund is held to continue to be property of the Depositor then
(a) this Agreement shall also be deemed to be a security agreement under
applicable law; (b) the transfer of the Trust Fund provided for herein shall be
deemed to be a grant by the Depositor to the Trustee on behalf of
Certificateholders of a first priority security interest in all of the
Depositor's right, title and interest in and to the Trust Fund and all amounts
payable to the holders of the Mortgage Loans in accordance with the terms
thereof and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including,
without limitation, all amounts from time to time held or invested in the
Collection Account, the Distribution Account, the Interest Reserve Account, the
Middle-Tier Distribution Account, the Upper-Tier Distribution Account, the
Default Interest Distribution Account and the Excess Interest Distribution
Account whether in the form of cash, instruments, securities or other property;
(c) the possession by the Trustee (or the Custodian on
204
its behalf) of Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the Delaware and Illinois Uniform Commercial Code; and (d)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement. It is
the intent of the parties that such a security interest would be effective
whether any of the Certificates are sold, pledged or assigned.
SECTION 10.09. No Intended Third-Party Beneficiaries.
No Person other than a party to this Agreement and any
Certificateholder shall have any rights with respect to the enforcement of any
of the rights or obligations hereunder. Without limiting the foregoing, the
parties to this Agreement specifically state that no Borrower, property manager
or other party to a Mortgage Loan is an intended third-party beneficiary of this
Agreement.
SECTION 10.10. No Recourse.
No recourse under any obligation, covenant or agreement of the
Depositor contained in this Agreement shall be had against ▇.▇. Management
Corporation ("JHM"), JH Holdings Corporation ("JHHC") or any incorporator,
stockholder, officer, director or employee of the Depositor, JHM or JHHC, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that this
Agreement is solely a corporate obligation of the Depositor, and that no
personal liability whatever shall attach to or be incurred by the incorporators,
stockholders, officers, directors or employees of the Depositor, JHM or JHHC, or
any of them under or by reason of any of the obligations, covenants or
agreements of the Depositor contained in this Agreement, or implied therefrom,
and that any and all personal liability for breaches by the Depositor of any of
such obligations, covenants or agreements either at common law or at equity, or
by statute or constitution, of JHM or JHHC and every such incorporator,
stockholder, officer, director or employee is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement; provided,
however, that nothing in this Section 10.10 shall relieve any of the foregoing
persons or entities from any liability arising from his, her or its fraudulent
conduct, willful misconduct or intentional misrepresentation.
205
SECTION 10.11. 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, understanding, 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
supersedes any course of performance or usage of the trade inconsistent with any
of the terms hereof.
206
IN WITNESS WHEREOF, the Depositor, the Servicer, the Special
Servicer, the Trustee and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the day
and year first above written.
Signed and acknowledged DEUTSCHE MORTGAGE & ASSET
in the presence of RECEIVING CORPORATION,
as Depositor
------------------------------- By:
Print Name: ---------------------------
Name:
------------------------------- -------------------------
Print Name: Title:
------------------------
Signed and acknowledged BANC ONE MORTGAGE CAPITAL
in the presence of MARKETS, LLC
as Servicer
------------------------------- By:
Print Name: ---------------------------
Name:
------------------------------- -------------------------
Print Name: Title:
------------------------
Signed and acknowledged BANC ONE MORTGAGE CAPITAL
in the presence of MARKETS, LLC,
as Special Servicer
------------------------------- By:
Print Name: ---------------------------
Name:
------------------------------- -------------------------
Print Name: Title:
------------------------
Signed and acknowledged LASALLE NATIONAL BANK
in the presence of as Trustee
------------------------------- By:
Print Name: ---------------------------
Name:
------------------------------- -------------------------
Print Name: Title:
------------------------
Signed and acknowledged ABN AMRO BANK N.V.
in the presence of as Fiscal Agent
------------------------------- By:
Print Name: ---------------------------
Name:
------------------------------- -------------------------
Print Name: Title:
------------------------
Signed and acknowledged ABN AMRO BANK N.V.
in the presence of as Fiscal Agent
------------------------------- By:
Print Name: ---------------------------
Name:
------------------------------- -------------------------
Print Name: Title:
------------------------
STATE OF____________________________)
) ss:
COUNTY OF___________________________)
On this ___ day of March, 1999, before me, the undersigned, a
Notary Public in and for the State of , duly commissioned and sworn, personally
appeared ______________, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇; that s/he is the ________________ of DEUTSCHE MORTGAGE &
ASSET RECEIVING CORPORATION, a Delaware corporation, the corporation described
in and that executed the foregoing instrument; and that s/he signed her/his name
thereto under authority of the board of directors of said corporation and on
behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
----------------------------
NOTARY PUBLIC in and for the
State of _____________.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
Name: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
STATE OF____________________________)
) ss:
COUNTY OF___________________________)
On this ___ day of March, 1999, before me, the undersigned, a
Notary Public in and for the State of ________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he resides at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; that he is the ___________________ of Banc One Mortgage
Capital Markets, LLC, the company described in and that executed the foregoing
instrument; and that he signed his name thereto under authority of said company
and on behalf of such company.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-------------------------------
NOTARY PUBLIC in and for the
State of _____________________.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
Name: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
STATE OF____________________________)
) ss:
COUNTY OF___________________________)
On this ____ day of March, 1999, before me, the undersigned, a
Notary Public in and for the State of ________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he resides at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; that he is the _____________________ of Banc One Mortgage
Capital Markets, LLC, the company described in and that executed the foregoing
instrument; and that he signed his name thereto under authority of said company
and on behalf of such company.
WITNESS my hand and seal hereto affixed the day and year first above
written.
----------------------------
NOTARY PUBLIC in and for the
State of _____________.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
Name: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
STATE OF____________________________)
) ss:
COUNTY OF___________________________)
On this ____ day of March, 1999, before me, the undersigned, a
Notary Public in and for the State of ________, duly commissioned and sworn,
personally appeared , to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at
______________________________ ; that s/he is a ________________ of LASALLE
NATIONAL BANK, a nationally chartered bank, the corporation described in and
that executed the foregoing instrument; and that he/her signed his/her name
thereto under authority of the board of directors of said corporation and on
behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first
above written.
----------------------------
NOTARY PUBLIC in and for the
State of _____________.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
Name: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
STATE OF____________________________)
) ss:
COUNTY OF___________________________)
On this ___ day of March, 1999, before me, the undersigned, a
Notary Public in and for the State of , duly commissioned and sworn, personally
appeared ________, to me known who, by me duly sworn, did depose and acknowledge
before me and say that s/he resides at _____________________________________;
that s/he is a ________________ of ABN AMRO BANK N.V., a Netherlands banking
corporation, the corporation described in and that executed the foregoing
instrument; and that s/he signed her/his name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
----------------------------
NOTARY PUBLIC in and for the
State of _____________.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
Name: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
A-1-1
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS A-1
Class A-1 Pass-Through Rate: 6.145%
First Distribution Date: Cut-off Date: March 1, 1999
April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1 Certificates: May 15, 2032
$181,453,000
CUSIP: _______________ ISIN: __________
Common Code: _________ Initial Certificate
Balance of this Certificate:
$
No.: A-1-1
This certifies that _______________ is the registered owner
of a beneficial ownership interest in a Trust Fund, including the distributions
to be made with respect to the Class A-1 Certificates. The Trust Fund,
described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens on commercial and multifamily residential properties and
held in trust by the Trustee and serviced by the Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and
conditions of the Pooling and Servicing Agreement and is bound thereby. Also
issued under the Pooling and Servicing Agreement are the Class A-2, Class X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR Certificates
(together with the Class A-1 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has
A-1-2
executed this Certificate in its limited capacity as Trustee under the
Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class A-1 Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class A-1 Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" means, with respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Each Interest Accrual Period other than the Interest Accrual Period with
respect to the Distribution Date occurring on April 15, 1999 is assumed to
consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of
A-1-3
the non-tendering Certificateholders, whereupon the Trust Fund shall terminate.
If any Certificates as to which notice of the Termination Date has been given
pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have
been surrendered for cancellation within six months after the time specified in
such notice, the Trustee shall mail a second notice to the remaining
Certificateholders, at their last addresses shown in the Certificate Register,
to surrender their Certificates for cancellation in order to receive, from such
funds held, the final distribution with respect thereto. If within one year
after the second notice any Certificate shall not have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining such funds and of
contacting Certificateholders shall be paid out of the assets which remain
held. If within two years after the second notice any Certificates shall not
have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by
the Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
A-1-4
As provided in the Pooling and Servicing Agreement, withdrawals may be made
from certain of the above-accounts for purposes other than distributions to
Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not
A-1-5
result in a qualification, withdrawal or downgrading of the then-current
ratings assigned to the Certificates, or (v) to make any other provisions with
respect to matters or questions arising under the Pooling and Servicing
Agreement, which shall not be inconsistent with the provisions of the Pooling
and Servicing Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or
A-1-6
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of
each Mortgage Loan included in the Trust
Fund as of the last day of the month
preceding such Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such
Distribution Date, as determined by an
Independent appraiser acceptable to the
Servicer as of the date not more than 30
days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed
Advances, with interest thereon at the
Advance Rate, and unpaid Servicing
Compensation, Special Servicing
Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
A-1-7
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-1-8
IN WITNESS WHEREOF, the Trustee has caused this Class A-1
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class A-1 Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ________________________________________________
_______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class A-1 Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class A-1 Certificate of the entire Percentage Interest represented by the
within Class A-1 Certificates to the above-named Assignee(s) and to deliver
such Class A-1 Certificate to the following address:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Date: ___________
-------------------------------------
Signature by or on behalf of
Assignor(s)
-------------------------------------
Taxpayer Identification Number
A-1-10
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
------------------------------------------------------------------------------
-----------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number ________________________________________________.
This information is provided by __________________________________________ the
Assignee(s) named above, or _______________________________________________ as
its (their) agent.
By: ________________________________________
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
A-2-1
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS A-2
Class A-2 Pass-Through Rate: 6.455%
First Distribution Date: Cut-off Date: March 1, 1999
April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-2 Certificates: May 15, 2032
$723,242,000
CUSIP: _______________ ISIN: __________
Common Code: _________ Initial Certificate
Balance of this Certificate:
$
No.: A-2
This certifies that _______________ is the registered owner
of a beneficial ownership interest in a Trust Fund, including the distributions
to be made with respect to the Class A-2 Certificates. The Trust Fund,
described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens on commercial and multifamily residential properties and
held in trust by the Trustee and serviced by the Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and
conditions of the Pooling and Servicing Agreement and is bound thereby. Also
issued under the Pooling and Servicing Agreement are the Class A-1, Class X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR Certificates
(together with the Class A-2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has
A-2-2
executed this Certificate in its limited capacity as Trustee under the
Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class A-2 Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class A-2 Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" means, with respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Each Interest Accrual Period other than the Interest Accrual Period with
respect to the Distribution Date occurring on April 15, 1999 is assumed to
consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of
A-2-3
the non-tendering Certificateholders, whereupon the Trust Fund shall terminate.
If any Certificates as to which notice of the Termination Date has been given
pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have
been surrendered for cancellation within six months after the time specified in
such notice, the Trustee shall mail a second notice to the remaining
Certificateholders, at their last addresses shown in the Certificate Register,
to surrender their Certificates for cancellation in order to receive, from such
funds held, the final distribution with respect thereto. If within one year
after the second notice any Certificate shall not have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining such funds and of
contacting Certificateholders shall be paid out of the assets which remain
held. If within two years after the second notice any Certificates shall not
have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by
the Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
A-2-4
As provided in the Pooling and Servicing Agreement, withdrawals may be made
from certain of the above-accounts for purposes other than distributions to
Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not
A-2-5
result in a qualification, withdrawal or downgrading of the then-current
ratings assigned to the Certificates, or (v) to make any other provisions with
respect to matters or questions arising under the Pooling and Servicing
Agreement, which shall not be inconsistent with the provisions of the Pooling
and Servicing Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or
A-2-6
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of
each Mortgage Loan included in the Trust
Fund as of the last day of the month
preceding such Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such
Distribution Date, as determined by an
Independent appraiser acceptable to the
Servicer as of the date not more than 30
days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(ii) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(iii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
A-2-7
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-2-8
IN WITNESS WHEREOF, the Trustee has caused this Class A-2
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class A-2 Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:________________________________________
Authorized Officer
A-2-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ______________________________________________
_____________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class A-2 Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class A-2 Certificate of the entire Percentage Interest represented by the
within Class A-2 Certificates to the above-named Assignee(s) and to deliver
such Class A-2 Certificate to the following address:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Date: ___________
-------------------------------------
Signature by or on behalf of
Assignor(s)
-------------------------------------
Taxpayer Identification Number
A-2-10
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
_______________________________________________________________ account number
________________________________________________.
This information is provided by
________________________________________________ the Assignee(s) named above,
or ________________________________________________ as its (their) agent.
By: ________________________________________
----------------------------------------
[Please print or type name(s)]
----------------------------------------
Title
----------------------------------------
Taxpayer Identification Number
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS X CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THE CERTIFICATES ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CERTIFICATE IS ISSUED ON MARCH 16, 1999, AT AN ISSUE PRICE OF 4.508171% OF
THE INITIAL CLASS X NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A STATED
REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS HEREON, AND IS
ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES.
ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS
REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO, WITH ALL MORTGAGE LOANS HAVING AN
ANTICIPATED REPAYMENT DATE PREPAYING ON SUCH DATE, USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS X
NOTIONAL AMOUNT IS APPROXIMATELY 2.239844%; (II) THE ANNUAL YIELD TO MATURITY
OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.600265%; AND (III)
THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 16, 1999
TO APRIL 15, 1999) AS A
A-3-1
PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.034182%.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INVESTMENT
UNIT COMPRISED OF TWELVE SEPARATE CLASSES OF "REGULAR INTERESTS" IN A "REAL
ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
A-3-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS X
Class X Pass-Through Rate: A per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate minus the Weighted Average Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1999
April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Notional Balance of the Distribution Date:
Class X Certificates: May 15, 2032
$1,311,153,573
CUSIP: ___________ ISIN: _____________
Common Code: _________ Initial Notional
Balance of this Certificate:
$
No.: X
This certifies that ____________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class X Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are Class A-1,
Class A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR
Certificates (together with the X Certificates, the "Certificates"; the Holders
of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-3-3
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class X Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class X Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" means, with respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Each Interest Accrual Period other than the Interest Accrual Period with
respect to the Distribution Date occurring on April 15, 1999 is assumed to
consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-3-4
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 of the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the net proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow
A-3-5
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Notional Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-3-6
confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans
which are required to be distributed on any
Certificate without the consent of all the holders
of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-3-7
evidenced by an Opinion of Counsel (obtained at the expense of the Trust
Fund), is necessary or helpful to maintain such qualification or to prevent
the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of
each Mortgage Loan included in the Trust
Fund as of the last day of the month
preceding such Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such
Distribution Date, as determined by an
Independent appraiser acceptable to the
Servicer as of the date not more than 30
days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed
Advances, with interest thereon at the
Advance Rate, and unpaid Servicing
Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund
expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
A-3-8
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-3-9
IN WITNESS WHEREOF, the Trustee has caused this Class X
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
By: __________________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class X Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Authenticating Agent
By: __________________________________________________
Authorized Officer
A-3-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ______________________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class X Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class X Certificate of the entire Percentage Interest represented by the
within Class X Certificates to the above-named Assignee(s) and to deliver such
Class X Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: ___________ _____________________________________________
Signature by or on behalf of
Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-3-11
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
______________________________________________________________________________
____________________________________________________________________________ .
Distributions, if be made by wire transfer in immediately available
funds to _____________________________________________________________________.
for the account of __________________________________________________________
account number ______________________________________________________________.
This information is provided by ______________________________________________
the Assignee(s) named above, or ______________________________________________
as its (their) agent.
By: ________________________________________
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS B CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS B CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF
A-4-1
PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-4-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS B
Class B Pass-Through Rate: The lesser of 6.552% and the Weighted Average Net
Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1999
April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B Certificates: May 15, 2032
$62,280,000
CUSIP: ___________ ISIN: US __________
Common Code: _______ Initial Certificate
Balance of this Certificate:
$
No.: B
This certifies that ___________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class B Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
▇-▇, ▇▇▇▇▇ ▇-▇, Class X, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR
Certificates (together with the Class B Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-4-3
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class B Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class B Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" means, with respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Each Interest Accrual Period other than the Interest Accrual Period with
respect to the Distribution Date occurring on April 15, 1999 is assumed to
consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-4-4
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow
A-4-5
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the
extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-4-6
confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-4-7
evidenced by an Opinion of Counsel (obtained at the expense of the Trust
Fund), is necessary or helpful to maintain such qualification or to prevent
the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the
last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
A-4-8
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-4-9
IN WITNESS WHEREOF, the Trustee has caused this Class B
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: __________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class B Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: _________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto (please print or typewrite
name(s) and address(es), including postal zip code(s) of assignee(s))
("Assignee(s)") the entire Percentage Interest represented by the within Class
B Certificate and hereby authorize(s) the registration of transfer of such
interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class B Certificate of the entire Percentage Interest represented by the
within Class B Certificates to the above-named Assignee(s) and to deliver such
Class B Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: __________________________
_________________________________________
Signature by or on behalf of Assignor(s)
_________________________________________
Taxpayer Identification Number
A-4-11
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
___________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________.
This information is provided by the Assignee(s) named above, or as its (their)
agent.
By: ____________________________________________
[Please print or type name(s)]
________________________________________________
Title
________________________________________________
Taxpayer Identification Number
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS C CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS C CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF
A-5-1
PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF
ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-5-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS C
Class C Pass-Through Rate: The lesser of 6.612% and the Weighted Average Net
Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1999
April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class C Certificates: May 15, 2032
$22,945,000
CUSIP: ___________ ISIN: US __________
Common Code: _______ Initial Certificate
Balance of this Certificate:
$
No.: C
This certifies that ___________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class C Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR
Certificates (together with the Class C Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-5-3
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class C Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class C Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" means, with respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Each Interest Accrual Period other than the Interest Accrual Period with
respect to the Distribution Date occurring on April 15, 1999 is assumed to
consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-5-4
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow
A-5-5
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-5-6
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-5-7
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the
last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
A-5-8
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-5-9
IN WITNESS WHEREOF, the Trustee has caused this Class C
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: ___________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class C Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ___________________________________________
Authorized Officer
A-5-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto _____________________________________
_____________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class C Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class C Certificate of the entire Percentage Interest represented by the
within Class C Certificates to the above-named Assignee(s) and to deliver such
Class C Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: _____________________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
A-5-11
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_______________________________________________________________________________
_______________________________________________________________________________
for the account of ____________________________________________________________
account number ______________________________________________________________ .
This information is provided by ______________________________________________
the Assignee(s) named above, or ______________________________________________
as its (their) agent.
By:______________________________________________
_________________________________________________
[Please print or type name(s)]
_________________________________________________
Title
_________________________________________________
Taxpayer Identification Number
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS D CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS D CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF
A-6-1
PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF
ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-6-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS D
Class D Pass-Through Rate: The lesser of 6.701% and the Weighted Average Net
Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1999
April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class D Certificates: May 15, 2032
$62,280,000
CUSIP: ___________ ISIN: US __________
Common Code: _______ Initial Certificate
Balance of this Certificate:
$
No.: D
This certifies that ___________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class D Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class C, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR
Certificates (together with the Class D Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-6-3
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class D Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class D Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" means, with respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Each Interest Accrual Period other than the Interest Accrual Period with
respect to the Distribution Date occurring on April 15, 1999 is assumed to
consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-6-4
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow
A-6-5
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-6-6
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-6-7
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the
last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
A-6-8
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-6-9
IN WITNESS WHEREOF, the Trustee has caused this Class D
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: _________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class D Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating
Agent
By: __________________________________________
Authorized Officer
A-6-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto _____________________________________
_____________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class D Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class D Certificate of the entire Percentage Interest represented by the
within Class D Certificates to the above-named Assignee(s) and to deliver such
Class D Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: ________________________
_______________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
A-6-11
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
____________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________________________________.
This information is provided by ___________________________________________ the
Assignee(s) named above, or __________________________________________________
as its (their) agent.
By: ____________________________________________________
________________________________________________________
[Please print or type name(s)]
________________________________________________________
Title
________________________________________________________
Taxpayer Identification Number
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS E CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS E CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF
A-7-1
PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF
ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-7-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS E
Class E Pass-Through Rate: 7.239%
First Distribution Date: Cut-off Date: March 1, 1999
April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class E Certificates: May 15, 2032
$81,947,000
CUSIP: ___________ ISIN: US __________
Common Code: _______ Initial Certificate
Balance of this Certificate:
$
No.: E
This certifies that ___________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class E Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class F, Class G, Class H,
Class J, Class K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR
Certificates (together with the Class E Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has
A-7-3
executed this Certificate in its limited capacity as Trustee under the Pooling
and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class E Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class E Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" means, with respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Each Interest Accrual Period other than the Interest Accrual Period with
respect to the Distribution Date occurring on April 15, 1999 is assumed to
consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any
A-7-4
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling and Servicing Agreement shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining
Certificateholders, at their last addresses shown in the Certificate Register,
to surrender their Certificates for cancellation in order to receive, from such
funds held, the final distribution with respect thereto. If within one year
after the second notice any Certificate shall not have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining such funds and of
contacting Certificateholders shall be paid out of the assets which remain
held. If within two years after the second notice any Certificates shall not
have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the
extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
A-7-5
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions
A-7-6
of the Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
A-7-7
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the
last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The
A-7-8
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-7-9
IN WITNESS WHEREOF, the Trustee has caused this Class E
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: _______________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class E Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
A-7-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto ____________________________________
____________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class E Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class E Certificate of the entire Percentage Interest represented by the
within Class E Certificates to the above-named Assignee(s) and to deliver such
Class E Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: _______________________
__________________________________
Signature by or on behalf of Assignor(s)
__________________________________
Taxpayer Identification Number
A-7-11
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
_____________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number __________________________________________.
This information is provided by ___________________________________________the
Assignee(s) named above, or __________________________________________________
as its (their) agent.
By:____________________________
_______________________________
[Please print or type name(s)]
_______________________________
Title
_______________________________
Taxpayer Identification Number
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS F CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF
A-8-1
PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR
A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-8-2
THIS CERTIFICATE IS ISSUED ON MARCH 16, 1999, AND BASED ON ITS ISSUE PRICE OF
91.635916%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT
THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO, WITH ALL MORTGAGE LOANS HAVING AN ANTICIPATED REPAYMENT DATE PREPAYING ON
SUCH DATE, USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 8.384191%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY 8.591629%; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 16, 1999 TO APRIL 15, 1999)
AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.039955%.
A-8-3
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS F
Class F Pass-Through Rate: 7.239%
First Distribution Date: Cut-off Date: March 1, 1999
April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class F Certificates: May 15, 2032
$19,668,000
CUSIP: ___________ ISIN: US __________
Common Code: _______ Initial Certificate
Balance of this Certificate:
$
No.: F
This certifies that _____________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class F Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class G, Class H,
Class J, Class K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR
Certificates (together with the Class F Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has
A-8-4
executed this Certificate in its limited capacity as Trustee under the Pooling
and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class F Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class F Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" means, with respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Each Interest Accrual Period other than the Interest Accrual Period with
respect to the Distribution Date occurring on April 15, 1999 is assumed to
consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any
A-8-5
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling and Servicing Agreement shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining
Certificateholders, at their last addresses shown in the Certificate Register,
to surrender their Certificates for cancellation in order to receive, from such
funds held, the final distribution with respect thereto. If within one year
after the second notice any Certificate shall not have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining such funds and of
contacting Certificateholders shall be paid out of the assets which remain
held. If within two years after the second notice any Certificates shall not
have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the
extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
A-8-6
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions
A-8-7
of the Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
A-8-8
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the
last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The
A-8-9
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-8-10
IN WITNESS WHEREOF, the Trustee has caused this Class F
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: ________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class F Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
A-8-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto ______________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class F Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class F Certificate of the entire Percentage Interest represented by the
within Class F Certificates to the above-named Assignee(s) and to deliver such
Class F Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date:_____________________________
____________________________________________
Signature by or on behalf of Assignor(s)
____________________________________________
Taxpayer Identification Number
A-8-12
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________________________________.
This information is provided by __________________________________________ the
Assignee(s) named above, or __________________________________________________
as its (their) agent.
By: ________________________________________
____________________________________________
[Please print or type name(s)]
____________________________________________
Title
____________________________________________
Taxpayer Identification Number
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS G CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER 1933 ACT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE
A-9-1
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES
NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR
A-9-2
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE
ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT
IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA
OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR,
THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A
"RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON
ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH
INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
THIS CERTIFICATE IS ISSUED ON MARCH 16, 1999, AND BASED ON ITS ISSUE PRICE OF
69.431408%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT
THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO, WITH ALL MORTGAGE LOANS HAVING AN ANTICIPATED REPAYMENT DATE PREPAYING ON
SUCH DATE, USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 30.581572%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 10.992564%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 16, 1999 TO
APRIL 15, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.146396%.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-9-3
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS G
Class G Pass-Through Rate: 5.645% subject to a maximum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date:
April 15, 1999 ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class G Certificates: May 15, 2032
$68,835,000
CUSIP: ISIN:
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: G
This certifies that _______________ is the registered owner
of a beneficial ownership interest in a Trust Fund, including the distributions
to be made with respect to the Class G Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial and multifamily residential properties and held in
trust by the Trustee and serviced by the Servicer. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and
conditions of the Pooling and Servicing Agreement and is bound thereby. Also
issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2,
Class X, Class B, Class C, Class D, Class E, Class F, Class H, Class J, Class
K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR Certificates
(together with the Class G Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-9-4
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April, 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class G Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class G Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on April 15, 1999 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-9-5
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow
A-9-6
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-9-7
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-9-8
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such
Distribution Date, as determined by an
Independent appraiser acceptable to the
Servicer as of the date not more than 30
days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund
expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the
A-9-9
Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-9-10
IN WITNESS WHEREOF, the Trustee has caused this Class G
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:_________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class G Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
A-9-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto_______________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class G Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class G Certificate of the entire Percentage Interest represented by the
within Class G Certificates to the above-named Assignee(s) and to deliver such
Class G Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: ________________ _______________________________________
Signature by or on behalf of
Assignor(s)
_______________________________________
Taxpayer Identification Number
A-9-12
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving
notices and distributions:___________________________________________________
_____________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________
for the account of___________________________________________________________
account number_______________________________________________________________
This information is provided by____________________________
the Assignee(s) named above, or___________________________________________ as
its (their) agent.
By:___________________________________
______________________________________
[Please print or type name(s)]
______________________________________
Title
______________________________________
Taxpayer Identification Number
A-9-13
EXHIBIT A-10
FORM OF CLASS H CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER 1933 ACT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE
A-10-1
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES
NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS H CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR
A-10-2
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE
ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT
IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA
OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR,
THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A
"RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON
ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH
INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
THIS CERTIFICATE IS ISSUED ON MARCH 16, 1999, AND BASED ON ITS ISSUE PRICE OF
64.588908%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT
THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO, WITH ALL MORTGAGE LOANS HAVING AN ANTICIPATED REPAYMENT DATE PREPAYING ON
SUCH DATE, USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 35.426772%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 12.09254%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 16, 1999 TO
APRIL 15, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.159069%.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-10-3
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS H
Class H Pass-Through Rate: 5.645% subject to a maximum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date:
April 15, 1999 ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class H Certificates: May 15, 2032
$13,112,000
CUSIP: ISIN: US
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: H
This certifies that _______________ is the registered owner
of a beneficial ownership interest in a Trust Fund, including the distributions
to be made with respect to the Class H Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial and multifamily residential properties and held in
trust by the Trustee and serviced by the Servicer. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and
conditions of the Pooling and Servicing Agreement and is bound thereby. Also
issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class J, Class
K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR Certificates
(together with the Class H Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-10-4
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April, 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class H Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class H Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on April 15, 1999 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-10-5
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow
A-10-6
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-10-7
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-10-8
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such
Distribution Date, as determined by an
Independent appraiser acceptable to the
Servicer as of the date not more than 30
days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the
A-10-9
Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-10-10
IN WITNESS WHEREOF, the Trustee has caused this Class H
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: _________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class H Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as
Authenticating Agent
By: _________________________________________
Authorized Officer
A-10-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto ______________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class H Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class H Certificate of the entire Percentage Interest represented by the
within Class H Certificates to the above-named Assignee(s) and to deliver such
Class H Certificate to the following address:
________________________________________
Date: ___________ Signature by or on behalf of
Assignor(s)
________________________________________
Taxpayer Identification Number
A-10-12
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving
notices and distributions: ___________________________________________________
_____________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number _______________________________________________________________
This information is provided by ____________________________
the Assignee(s) named above, or ___________________________________________ as
its (their) agent.
By: ________________________________
____________________________________
[Please print or type name(s)]
____________________________________
Title
____________________________________
Taxpayer Identification Number
A-10-13
EXHIBIT A-11
FORM OF CLASS J CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER 1933 ACT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE
A-11-1
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES
NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS J CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR
A-11-2
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE
ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT
IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA
OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR,
THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A
"RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON
ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH
INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
THIS CERTIFICATE IS ISSUED ON MARCH 16, 1999, AND BASED ON ITS ISSUE PRICE OF
58.607408%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT
THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO, WITH ALL MORTGAGE LOANS HAVING AN ANTICIPATED REPAYMENT DATE PREPAYING ON
SUCH DATE, USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 41.408272%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 13.593754%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 16, 1999 TO
APRIL 15, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.169476%.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-11-3
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS J
Class J Pass-Through Rate: 5.645% subject to a maximum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date:
April 15, 1999 ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class J Certificates: May 15, 2032
$26,223,000
CUSIP: ISIN: US
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: J
This certifies that _______________ is the registered owner
of a beneficial ownership interest in a Trust Fund, including the distributions
to be made with respect to the Class J Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial and multifamily residential properties and held in
trust by the Trustee and serviced by the Servicer. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and
conditions of the Pooling and Servicing Agreement and is bound thereby. Also
issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
K, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR Certificates
(together with the Class J Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-11-4
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April, 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class J Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class J Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on April 15, 1999 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-11-5
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow
A-11-6
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-11-7
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-11-8
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such
Distribution Date, as determined by an
Independent appraiser acceptable to the
Servicer as of the date not more than 30
days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund
expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the
A-11-9
Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-11-10
IN WITNESS WHEREOF, the Trustee has caused this Class J
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: ________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class J Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as
Authenticating Agent
By: ________________________________________
Authorized Officer
A-11-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto _______________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class J Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class J Certificate of the entire Percentage Interest represented by the
within Class J Certificates to the above-named Assignee(s) and to deliver such
Class J Certificate to the following address:
_______________________________________
Date: ________________ Signature by or on behalf of
Assignor(s)
_______________________________________
Taxpayer Identification Number
A-11-12
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving
notices and distributions:____________________________________________________
_____________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number _______________________________________________________________
This information is provided by___________________________________________ the
Assignee(s) named above, or ____________________________________________as its
(their) agent.
By: _________________________________
_____________________________________
[Please print or type name(s)]
_____________________________________
Title
_____________________________________
Taxpayer Identification Number
A-11-13
EXHIBIT A-12
FORM OF CLASS K CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER 1933 ACT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE
A-12-1
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES
NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS K CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR
A-12-2
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE
ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT
IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA
OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR,
THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A
"RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON
ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH
INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
THIS CERTIFICATE IS ISSUED ON MARCH 16, 1999, AND BASED ON ITS ISSUE PRICE OF
49.839908%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT
THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO, WITH ALL MORTGAGE LOANS HAVING AN ANTICIPATED REPAYMENT DATE PREPAYING ON
SUCH DATE, USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 50.175772%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 16.219587%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 16, 1999 TO
APRIL 15, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.175351%.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-12-3
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS K
Class K Pass-Through Rate: 5.645% subject to a maximum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date:
April 15, 1999 ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class K Certificates: May 15, 2032
$19,667,000
CUSIP: ISIN: US
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: K
This certifies that _______________ is the registered owner
of a beneficial ownership interest in a Trust Fund, including the distributions
to be made with respect to the Class K Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial and multifamily residential properties and held in
trust by the Trustee and serviced by the Servicer. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and
conditions of the Pooling and Servicing Agreement and is bound thereby. Also
issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class L, Class Q-1, Class Q-2, Class R, Class MR and Class LR Certificates
(together with the Class K Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-12-4
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April, 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class K Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class K Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on April 15, 1999 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-12-5
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow
A-12-6
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-12-7
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-12-8
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of the
last day of the month preceding such Distribution
Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not more
than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect
of any Mortgage Loan in the Trust Fund, on the last
day of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of a date not more
than 30 days prior to the last day of the month
preceding such Distribution Date, together with one
month's interest thereon at the
A-12-9
Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-12-10
IN WITNESS WHEREOF, the Trustee has caused this Class K
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: ________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class K Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as
Authenticating Agent
By: ________________________________________
Authorized Officer
A-12-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto _______________________________________
_______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class K Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class K Certificate of the entire Percentage Interest represented by the
within Class K Certificates to the above-named Assignee(s) and to deliver such
Class K Certificate to the following address:
Date: ________________ ____________________________________________
Signature by or on behalf of
Assignor(s)
____________________________________________
Taxpayer Identification Number
A-12-12
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving
notices and distributions:____________________________________________________
_____________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number _______________________________________________________________
This information is provided by ____________________________
the Assignee(s) named above, or _______________________________________ as its
(their) agent.
By: _________________________________________
_____________________________________________
[Please print or type name(s)]
_____________________________________________
Title
_____________________________________________
Taxpayer Identification Number
A-12-13
EXHIBIT A-13
FORM OF CLASS L CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER 1933 ACT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE
A-13-1
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES
NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS L CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY
SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B)
A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR
A-13-2
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE
ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT
IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA
OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR,
THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A
"RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON
ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH
INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
THIS CERTIFICATE IS ISSUED ON MARCH 16, 1999, AND BASED ON ITS ISSUE PRICE OF
26.369108%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT
THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO, WITH ALL MORTGAGE LOANS HAVING AN ANTICIPATED REPAYMENT DATE PREPAYING ON
SUCH DATE, USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 73.646572%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 27.125028%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 16, 1999 TO
APRIL 15, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.091158%.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
A-13-3
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS L
Class L Pass-Through Rate: 5.645% subject to a maximum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date:
April 15, 1999 ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class L Certificates: May 15, 2032
$29,501,573
CUSIP: ISIN: US
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: L
This certifies that _______________ is the registered owner
of a beneficial ownership interest in a Trust Fund, including the distributions
to be made with respect to the Class L Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial and multifamily residential properties and held in
trust by the Trustee and serviced by the Servicer. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and
conditions of the Pooling and Servicing Agreement and is bound thereby. Also
issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class Q-1, Class Q-2, Class R, Class MR and Class LR Certificates
(together with the Class L Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
A-13-4
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in April, 1999 (each such date, a "Distribution
Date") an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class L Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class L Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on April 15, 1999 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) specified in the notice to Certificateholders
of such final distribution.
A-13-5
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds net of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow
A-13-6
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or
A-13-7
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as two
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as
A-13-8
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of
each Mortgage Loan included in the Trust
Fund as of the last day of the month
preceding such Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such
Distribution Date, as determined by an
Independent appraiser acceptable to the
Servicer as of the date not more than 30
days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage
Loan (including for this purpose any
Mortgage Loan as to which title to the
related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed
Advances, with interest thereon at the
Advance Rate, and unpaid Servicing
Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund
expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the
A-13-9
Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-13-10
IN WITNESS WHEREOF, the Trustee has caused this Class L
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: ________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class L Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as
Authenticating Agent
By: ________________________________________
Authorized Officer
A-13-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class L Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class L Certificate of the entire Percentage Interest represented by the
within Class L Certificates to the above-named Assignee(s) and to deliver such
Class L Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: ________________ _____________________________________
Signature by or on behalf of
Assignor(s)
_____________________________________
Taxpayer Identification Number
A-13-12
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving
notices and distributions:
_____________________________________________________________________________
_____________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number _______________________________________________________________
This information is provided by___________________________________________ the
the Assignee(s) named above, or _______________________________________ as its
(their) agent.
By: ________________________________
____________________________________
[Please print or type name(s)]
____________________________________
Title
____________________________________
Taxpayer Identification Number
A-13-13
EXHIBIT A-14
FORM OF CLASS Q-1 CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER 1933 ACT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2
A-14-1
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT
THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
A-14-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, Class Q-1
CUSIP: _________ Percentage Interest: [100%]
No.: Q-1-1
This certifies that _______________ is the registered owner
of the Percentage Interest evidenced by this Certificate in the Trust Fund. The
Class Q-1 Certificateholder is not entitled to interest or principal
distributions The Class Q-1 Certificateholder will be entitled to receive
distributions of Net Default Interest received from the borrowers. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class Q-2, Class R, Class MR and Class LR
Certificates (together with the Class Q-1 Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents the right to receive a pro rata
undivided beneficial interest in the portion of the Trust Fund consisting of
the Default Interest collected on the German American Capital Corporation and
Banc One Mortgage Capital Markets, LLC Loans, subject to the obligation to
reimburse the Servicer, the Trustee or the Fiscal Agent, as applicable, for
interest on Advances.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the
A-14-3
Business Day immediately following such day, commencing in April 1999 (each
such date, a "Distribution Date") an amount equal to such Person's pro rata
share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class A-1 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
the related Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 of the
Pooling and Servicing Agreement.
A-14-4
Such funds held by the Trustee may be invested under certain circumstances, and
subject to certain conditions as specified in the Pooling and Servicing
Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds of any of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
A-14-5
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and
will not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
A-14-6
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
A-14-7
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the
last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-14-8
IN WITNESS WHEREOF, the Trustee has caused this Class Q-1
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: ________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class Q-1 Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
A-14-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
_____________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class Q-1 Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class Q-1 Certificate of the entire Percentage Interest represented by the
within Class Q-1 Certificates to the above-named Assignee(s) and to deliver
such Class Q-1 Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: ___________________
______________________________________________
Signature by or on behalf of Assignor(s)
______________________________________________
Taxpayer Identification Number
A-14-10
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes
of distribution:
Address of the Assignee(s) for the purpose of receiving
notices and distributions: ___________________________________________________
_____________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number ________________________________________________.
This information is provided by __________________________________________ the
Assignee(s) named above, or ___________________________________________ as its
(their) agent.
By: ________________________________
____________________________________
[Please print or type name(s)]
____________________________________
Title
____________________________________
Taxpayer Identification Number
A-14-11
EXHIBIT A-15
FORM OF CLASS Q-2 CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER 1933 ACT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2
A-15-1
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE
CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
▇-▇▇-▇
▇▇▇▇▇▇▇▇ MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, Class Q-2
CUSIP: _________ Percentage Interest: [100%]
No.: Q-1-2
This certifies that _______________ is the registered owner
of the Percentage Interest evidenced by this Certificate in the Trust Fund. The
Class Q-2 Certificateholder is not entitled to interest or principal
distributions The Class Q-2 Certificateholder will be entitled to receive
distributions of Net Default Interest received from the borrowers. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class Q-1, Class R, Class MR and Class LR
Certificates (together with the Class Q-2 Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents the right to receive a pro rata
undivided beneficial interest in the portion of the Trust Fund consisting of
the Default Interest collected on the German American Capital Corporation and
Banc One Mortgage Capital Markets, LLC Loans, subject to the obligation to
reimburse the Servicer, the Trustee or the Fiscal Agent, as applicable, for
interest on Advances.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such day is not a Business Day, the
A-15-3
Business Day immediately following such day, commencing in April 1999
(each such date, a "Distribution Date") an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class A-1 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
the related Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the
Distribution Date occurring in April 1999, the Record Date will be the Closing
Date, except as specified in the Pooling and Servicing Agreement. Such
distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
by check mailed by first class mail to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate
Registrar acting as such agent) is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 of the
Pooling and Servicing Agreement.
A-15-4
Such funds held by the Trustee may be invested under certain circumstances,
and subject to certain conditions as specified in the Pooling and Servicing
Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds of any of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
A-15-5
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and
will not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates
A-15-6
representing all Percentage Interests of the Class
or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
A-15-7
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the
last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-15-8
IN WITNESS WHEREOF, the Trustee has caused this Class Q-2
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: _________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class Q-2 Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:_____________________________________________
Authorized Officer
A-15-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto _____________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class Q-2 Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class Q-2 Certificate of the entire Percentage Interest represented by the
within Class Q-2 Certificates to the above-named Assignee(s) and to deliver
such Class Q-2 Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: ________________________
_______________________________________
Signature by or on behalf of Assignor(s)
_______________________________________
Taxpayer Identification Number
A-15-10
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving
notices and distributions:
______________________________________________________________________________
______________________________________________________________________________
.
Distributions, if be made by wire transfer in immediately available funds
to
___________________________________________________________________________for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ___________________________________________ the
Assignee(s) named above, or _______________________________________________ as
its (their) agent.
By: ______________________________________________
[Please print or type name(s)]
_______________________________________________
Title
_______________________________________________
Taxpayer Identification Number
A-15-11
EXHIBIT A-16
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING
AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS
NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION
860(E)(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR
SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE
TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY
PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A
PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE
ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED
IN TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS CERTIFICATE MAY
BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A
REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE
TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
A-16-1
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C
OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL
ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE, OR
ANY ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS
WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY
SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN. THIS CERTIFICATE MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
A-16-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS R
CUSIP: ____________ Percentage Interest: [100%]
No.: R
This certifies that _________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
the Trust Fund. The Class R Certificateholder is not entitled to interest or
principal distributions. The Class R Certificateholder will be entitled to
receive the proceeds of the remaining assets of the Upper-Tier REMIC, if any,
on the Final Scheduled Distribution Date for the Certificates, after
distributions in respect of any accrued but unpaid interest on the Certificates
and after distributions in reduction of principal balance have reduced the
principal balances of the Certificates to zero. It is not anticipated that
there will be any assets remaining in the Upper-Tier REMIC or Trust Fund on the
Final Scheduled Distribution Date following the distributions on the Regular
Certificates. The Trust Fund, described more fully below, consists primarily of
a pool of Mortgage Loans secured by first liens and a second lien on commercial
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class Q-1, Class Q-2, Class MR and Class LR
Certificates (together with the Class R Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(2) and 860D of the Code.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
A-16-3
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month in which the related
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day; provided, however, that with respect to the Distribution Date
occurring in April 1999, the Record Date will be the Closing Date, except as
specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class R Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 of the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
A-16-4
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds of any of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as
A-16-5
the owner hereof for all purposes, and none of the Depositor, the Servicer,
the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and
will not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
A-16-6
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as
A-16-7
determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the
last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-16-8
IN WITNESS WHEREOF, the Trustee has caused this Class R
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: ___________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class R Certificates referred to in the
Pooling and Servicing Agreement.
Dated: _______________________________
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating
Agent
By: __________________________________________
Authorized Officer
A-16-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto _____________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class R Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class R Certificate of the entire Percentage Interest represented by the
within Class R Certificates to the above-named Assignee(s) and to deliver such
Class R Certificate to the following address:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Date: ____________________________
Signature by or on behalf of Assignor(s)
__________________________________________
Taxpayer Identification Number
A-16-10
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution: ________________________________________________________________
_____________________________________________________________________________.
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________________________________.
This information is provided by ____________________________________________the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By: ______________________________________
[Please print or type name(s)]
__________________________________________
Title
__________________________________________
Taxpayer Identification Number
A-16-11
EXHIBIT A-17
FORM OF CLASS MR CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING
AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS
NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION
860(E)(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR
SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE
TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY
PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A
PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE
ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED
IN TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS CERTIFICATE MAY
BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A
REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE
TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
A-17-1
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C
OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL
ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE, OR
ANY ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS
WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY
SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN. THIS CERTIFICATE MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
A-17-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS MR
CUSIP: ____________ Percentage Interest: [100%]
No.: MR
This certifies that _________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
the Trust Fund. The Class MR Certificateholder is not entitled to interest or
principal distributions. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens and a second lien
on commercial properties and held in trust by the Trustee and serviced by the
Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling and Servicing Agreement (as defined below).
The Holder of this Certificate, by virtue of the acceptance hereof, assents to
the terms, provisions and conditions of the Pooling and Servicing Agreement and
is bound thereby. Also issued under the Pooling and Servicing Agreement are the
Class A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class Q-1, Class Q-2, Class R and
Class LR Certificates (together with the Class MR Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(2) and 860D of the Code.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month in which the related
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day; provided, however, that with respect to the Distribution Date
occurring in April 1999, the Record Date will be the Closing Date, except as
specified in the
A-17-3
Pooling and Servicing Agreement. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date by check mailed by first class mail to the
address set forth therefor in the Certificate Register or, provided that such
Certificateholder shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class MR Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 of the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
A-17-4
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds of any of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
A-17-5
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and
will not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance
A-17-6
without the consent of the Holders of all
Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
A-17-7
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-17-8
IN WITNESS WHEREOF, the Trustee has caused this Class MR
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: __________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class MR Certificates referred to in the
Pooling and Servicing Agreement.
Dated: ________________________
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ___________________________________________
Authorized Officer
A-17-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby
sell(s), assign(s) and transfer(s) unto ______________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class MR Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class MR Certificate of the entire Percentage Interest represented by the
within Class MR Certificates to the above-named Assignee(s) and to deliver such
Class MR Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: ________________________
Signature by or on behalf of Assignor(s)
__________________________________________
Taxpayer Identification Number
A-17-10
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
_____________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________________________________.
This information is provided by ___________________________________________ the
Assignee(s) named above, or ____________________________________________ as its
(their) agent.
By: _____________________________
_________________________________
[Please print or type name(s)]
_________________________________
Title
_________________________________
Taxpayer Identification Number
A-17-11
EXHIBIT A-18
FORM OF CLASS LR CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING
AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS
NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION
860(E)(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR
SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE
TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY
PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A
PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE
ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED
IN TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS CERTIFICATE MAY
BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A
REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE
TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
A-18-1
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C
OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL
ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A ▇▇▇▇▇ PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE, OR
ANY ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS
WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY
SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN. THIS CERTIFICATE MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
A-18-2
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES COMM 1999-1, CLASS LR
CUSIP: ____________ Percentage Interest: [100%]
No.: LR
This certifies that _________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
the Trust Fund. The Class LR Certificateholder is not entitled to interest or
principal distributions. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens and a second lien
on commercial properties and held in trust by the Trustee and serviced by the
Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling and Servicing Agreement (as defined below).
The Holder of this Certificate, by virtue of the acceptance hereof, assents to
the terms, provisions and conditions of the Pooling and Servicing Agreement and
is bound thereby. Also issued under the Pooling and Servicing Agreement are the
Class A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class Q-1, Class Q-2,
Class MR and Class R Certificates (together with the Class LR Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of March 1, 1999
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Banc One Mortgage Capital Markets, LLC, as
Servicer and as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(2) and 860D of the Code.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month in which the related
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day; provided, however, that with respect to the Distribution Date
occurring in April 1999, the Record Date will be the Closing Date, except as
specified in the
A-18-3
Pooling and Servicing Agreement. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date by check mailed by first class mail to the
address set forth therefor in the Certificate Register or, provided that such
Certificateholder shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which
notice of the Termination Date has been given pursuant to Section 9.01 of the
Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor Trustee or (ii) the termination of the
Trust Fund and distribution of such amounts to the Class LR Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 9.01 of the
Pooling and Servicing Agreement. Such funds held by the Trustee may be invested
under certain circumstances, and subject to certain conditions as specified in
the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
A-18-4
Property; (iv) all revenues received in respect of any REO Property; (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreement; and (xi) the proceeds of any of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling
and Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and
subject to certain limitations set forth therein, this Certificate is
transferable or exchangeable only upon surrender of this Certificate to the
Certificate Registrar at the Corporate Trust Office together with an assignment
and transfer (executed by the Holder or his duly authorized attorney), subject
to the requirements in Article V of the Pooling and Servicing Agreement. Upon
surrender for registration of transfer of this Certificate, subject to the
requirements of Article V of the Pooling and Servicing Agreement, the Trustee
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e) of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for
registration of transfer, the Depositor, the Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent or any agent of
any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. The Certificate Registrar may require
A-18-5
payment by each transferor of a sum sufficient to cover any tax, expense or
other governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions in such agreements, (iii) to amend any
provision the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency, (iv) to amend or supplement any
provisions in such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment or confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and
will not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders
of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing
Agreement, without the consent of the Holders of all
Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the
Pooling and Servicing Agreement or the obligations
of the Servicer, the Special Servicer, the Trustee
or the Fiscal Agent to make a P&I Advance or
Property Advance
A-18-6
without the consent of the Holders of all
Certificates representing all of the
Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling and Servicing
Agreement which relates to the amendment of the
Pooling and Servicing Agreement without the consent
of all the holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement to modify, eliminate or add to any of its provisions to such extent
as shall be necessary to maintain the qualification of the Trust REMIC as three
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Servicer, and if the Servicer does not exercise its
option, any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of
the Mortgage Loans then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to
not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of
the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day
of the month preceding such Distribution Date,
as determined by an Independent appraiser
acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including
for this purpose any Mortgage Loan as to which
title to the related Mortgaged Property has
been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to
A-18-7
the last day of the month preceding such
Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances,
with interest thereon at the Advance Rate, and
unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund pursuant to Section
9.01(c) of the Pooling and Servicing Agreement shall be borne by the party
exercising its purchase rights thereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing
Agreement shall terminate upon the earliest to occur of (i) the repurchase of
the Mortgage Loans by the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last surviving descendant(s) of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
A-18-8
IN WITNESS WHEREOF, the Trustee has caused this Class LR
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: __________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class LR Certificates referred to in the
Pooling and Servicing Agreement.
Dated: ___________________
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: _________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _______________________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class LR Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Class LR Certificate of the entire Percentage Interest represented by the
within Class LR Certificates to the above-named Assignee(s) and to deliver such
Class LR Certificate to the following address:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Date: ______________________________
Signature by or on behalf of Assignor(s)
__________________________________
Taxpayer Identification Number
A-18-10
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
_____________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________________________________.
This information is provided by __________________________________________ the
Assignee(s) named above, or ___________________________________________ as its
(their) agent.
By: ____________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
A-18-11
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE
[TO BE FILED MANUALLY]
EXHIBIT B-2
HEALTHCARE LOAN SCHEDULE
CONTROL
NUMBER LOAN NUMBER LOAN NAME
------------ ------------------ -------------------------
7 GA5848 ELDERTRUST MERIDIAN 6
7 GA5848-A ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇-▇ HERITAGE CENTER
7 GA5848-C WESTFIELD CENTER
7 ▇▇▇▇▇▇-▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇-▇ ▇▇ ▇▇▇▇▇ NURSING ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ PRIME CARE SIX
8 GA5824-A GREEN PARK NURSING HOME
8 GA5824-B ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ NURSING HOME
8 ▇▇▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ SUNRISE PORTFOLIO
13 GA6039-A SUNRISE OF ANNAPOLIS
13 GA6039-B SUNRISE OF PIKESVILLE
187 TA2728 ASTORIA TERRACE RETIREMENT CENTER
B-2-1
EXHIBIT B-3
AUTOMOBILE LOANS
1) CARS-DB1, L.L.C.
B-3-1
EXHIBIT B-4
SERVICING FEE SCHEDULE
----------------------------------------------------------------------------------------------------------------------
PRIMARY
LOAN ID SERVICER PROPERTY NAME CITY STATE SERVICING FEE
----------------------------------------------------------------------------------------------------------------------
TA6788 BANCONE ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.0002
TA5907 BANCONE SANDPIPER MOBILE MANOR EUSTIS FLORIDA 0.0002
TA5906 BANCONE HYDE PARK OFFICE COURT AUSTIN TEXAS 0.0002
TA5719 BANCONE WARNER BUSINESS PARK CANOGA PARK CALIFORNIA 0.0002
TA5707 BANCONE WILLOWICK & PARK PLACE APARTMENTS VARIOUS TEXAS 0.0002
TA5706 BANCONE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE CANTERBURY COURT APARTMENTS CHULA VISTA CALIFORNIA 0.0002
TA5556 BANCONE GRAND TRI-STATE CORPORATE CENTER GURNEE ILLINOIS 0.0002
TA5434 BANCONE SETTLERS LANDING SHOPPING CENTER ▇▇▇▇▇▇▇▇▇▇ INDIANA 0.0002
TA5391 BANCONE ASSISTED LIVING CONCEPTS VARIOUS OREGON 0.0002
TA5311 BANCONE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE BRAZOS OFFICE BUILDING AUSTIN TEXAS 0.0002
TA5210 BANCONE PENTHOUSE APARTMENTS VARIOUS TEXAS 0.0002
TA5207 BANCONE DESIGN CENTER SANTA MONICA CALIFORNIA 0.0002
TA5150 BANCONE VILLAGE OAKS SHOPPING CENTER MARTINEZ CALIFORNIA 0.0002
TA5135 BANCONE APPALACHIAN TRAIL INN CARLISLE PENNSYLVANIA 0.0002
TA5083 BANCONE CVS/REVCO/CONCORDIA ROSWELL GEORGIA 0.0002
TA5060 BANCONE LAKE FOREST ONE STOP AUTOPLEX LAKE FOREST CALIFORNIA 0.0002
TA4952 BANCONE ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0002
TA4928 BANCONE OCEANSIDE COMMERCE CENTER OCEANSIDE CALIFORNIA 0.0002
TA4882 BANCONE CHOE PORTFOLIO VARIOUS ILLINOIS 0.0002
TA4858 BANCONE ▇▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0002
TA4834 BANCONE HAMLINE PARK PLAZA ST. ▇▇▇▇ MINNESOTA 0.0002
TA4833 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 0.0002
TA4832 BANCONE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ OFFICE BLDG. ST. ▇▇▇▇ MINNESOTA 0.0002
TA4776 BANCONE PRI WAREHOUSE PUYALLUP WASHINGTON 0.0002
TA4704 BANCONE VIRGINIA HILLS MOBILE HOME PARK IMPERIAL PENNSYLVANIA 0.0002
TA4678 BANCONE RAINBOW LUXURY APARTMENTS BLOOMINGTON ILLINOIS 0.0002
TA4669 BANCONE MADISON AVENUE MURRIETA CALIFORNIA 0.0002
TA4664 BANCONE ST. ▇▇▇▇▇ GARDEN APARTMENTS CHESTER PENNSYLVANIA 0.0002
TA4609 BANCONE AIRPLAZA 22 ENGLEWOOD COLORADO 0.0002
TA4605 BANCONE THE CASTLE ON LOCUST CHAMPAIGN ILLINOIS 0.0002
TA4604 BANCONE SYNERGY PORTFOLIO VARIOUS ILLINOIS 0.0002
TA4590 BANCONE MANCHESTER INDUSTRIAL PARK DENVER COLORADO 0.0002
TA4588 BANCONE ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0002
TA4563 BANCONE ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE PRINCETON CORPORATE PLAZA AND ONE ▇▇▇▇▇▇ VARIOUS NEW JERSEY 0.0002
PLACE
TA4424 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ AND GRATIOT CENTER CLINTON TWP. MICHIGAN 0.0002
TA4381 BANCONE COMFORT SUITES - AURORA AURORA ILLINOIS 0.0002
B-4-1
------------------------------------------------------------------------
MASTER TRUSTEE RETAINED TOTAL
LOAN ID SERVICING FEE FEE STRIPS FEES
------------------------------------------------------------------------
TA6788 0.0001 0.00002 0.00032
TA5907 0.0001 0.00002 0.00032
TA5906 0.0001 0.00002 0.00032
TA5719 0.0001 0.00002 0.00032
TA5707 0.0001 0.00002 0.00032
TA5706 0.0001 0.00002 0.00032
TA5595 0.0001 0.00002 0.00032
TA5556 0.0001 0.00002 0.00032
TA5434 0.0001 0.00002 0.00032
TA5391 0.0001 0.00002 0.00032
TA5311 0.0001 0.00002 0.00032
TA5244 0.0001 0.00002 0.00032
TA5210 0.0001 0.00002 0.00032
TA5207 0.0001 0.00002 0.00032
TA5150 0.0001 0.00002 0.00032
TA5135 0.0001 0.00002 0.00032
TA5083 0.0001 0.00002 0.00032
TA5060 0.0001 0.00002 0.00032
TA4952 0.0001 0.00002 0.00032
TA4928 0.0001 0.00002 0.00032
TA4882 0.0001 0.00002 0.00032
TA4858 0.0001 0.00002 0.00032
TA4834 0.0001 0.00002 0.00032
TA4833 0.0001 0.00002 0.00032
TA4832 0.0001 0.00002 0.00032
TA4776 0.0001 0.00002 0.00032
TA4704 0.0001 0.00002 0.00032
TA4678 0.0001 0.00002 0.00032
TA4669 0.0001 0.00002 0.00032
TA4664 0.0001 0.00002 0.00032
TA4609 0.0001 0.00002 0.00032
TA4605 0.0001 0.00002 0.00032
TA4604 0.0001 0.00002 0.00032
TA4590 0.0001 0.00002 0.00032
TA4588 0.0001 0.00002 0.00032
TA4563 0.0001 0.00002 0.00032
TA4553 0.0001 0.00002 0.00032
TA4424 0.0001 0.00002 0.00032
TA4381 0.0001 0.00002 0.00032
----------------------------------------------------------------------------------------------------------------------
PRIMARY
LOAN ID SERVICER PROPERTY NAME CITY STATE SERVICING FEE
----------------------------------------------------------------------------------------------------------------------
TA4380 BANCONE "AMERIVEST PROPERTIES TEXAS, INC." VARIOUS TEXAS 0.0002
TA4330 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 0.0002
TA4309 BANCONE AVONDALE SHOPPING CENTER AVONDALE ARIZONA 0.0002
TA4306 BANCONE LA JOLLA GALLERIA LA JOLLA CALIFORNIA 0.0002
TA4235 BANCONE ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0002
TA4171 BANCONE YORK HOTEL SAN FRANCISCO CALIFORNIA 0.0002
TA4160 BANCONE SOUTHDALE APARTMENTS HUTCHINSON MINNESOTA 0.0002
TA4112 BANCONE TORRANCE MEDICAL PLAZA TORRANCE CALIFORNIA 0.0002
TA4080 BANCONE ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.0002
TA4054 BANCONE HAMPSHIRE HOUSE APARTMENTS MT. LEBANON PENNSYLVANIA 0.0002
TA4051 BANCONE HILLSIDE GARDENS APARTMENTS PHILADELPHIA PENNSYLVANIA 0.0002
TA4007 BANCONE TRUXTUN FINANCIAL BUILDING BAKERSFIELD CALIFORNIA 0.0002
TA4006 BANCONE DANVILLE CENTER DANVILLE CALIFORNIA 0.0002
TA3997 BANCONE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE ▇▇▇▇▇▇▇▇▇▇ PROFESSIONAL BUILDING SOUTHGATE MICHIGAN 0.0002
TA3987 BANCONE MARKET PLACE CENTER LITTLE CANADA MINNESOTA 0.0002
TA3981 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LOFTS JERSEY CITY NEW JERSEY 0.0002
TA3974 BANCONE ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ 0.0002
TA3927 BANCONE ASSISTED LIVING CARE VARIOUS TEXAS 0.0002
TA3923 BANCONE HOTEL ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE BAILEY AVENUE APARTMENTS BRONX NEW YORK 0.0002
TA3898 BANCONE ▇▇▇▇▇▇ AVENUE APARTMENTS ROSEMEAD CALIFORNIA 0.0002
TA3886 BANCONE LA MIRADA PLAZA KISSIMMEE FLORIDA 0.0002
TA3884 BANCONE ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0002
TA3878 BANCONE FIRST VIRGINIA TOWER NORFOLK VIRGINIA 0.0002
TA3875 BANCONE ROCKBRIDGE SHOPPING CENTER NORCROSS GEORGIA 0.0002
TA3868 BANCONE BEAR VALLEY PLAZA VICTORVILLE CALIFORNIA 0.0002
TA3854 BANCONE BROOKSIDE PLAZA SHOPPING CENTER REDLANDS CALIFORNIA 0.0002
TA3846 BANCONE OAKWOOD SQUARE PLYMOUTH MINNESOTA 0.0002
TA3772 BANCONE MARLBORO PLAZA PROPERTIES VARIOUS MARYLAND 0.0002
TA3743 BANCONE CHESAPEAKE RODEO APARTMENTS LOS ANGELES CALIFORNIA 0.0002
TA3721 BANCONE ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇▇▇▇
TA3709 BANCONE PLATTSBURGH PLAZA PLATTSBURGH NEW YORK 0.0002
TA3684 BANCONE ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 0.0002
TA3655 BANCONE SEVEN HILLS PLAZA AURORA COLORADO 0.0002
TA3621 BANCONE ▇▇▇▇▇▇▇▇ LAKES CENTER EDEN PRAIRIE MINNESOTA 0.0002
TA3619 BANCONE CROWN POINT V GAINSVILLE FLORIDA 0.0002
TA3602 BANCONE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.0002
TA3492 BANCONE MINNESOTA VALLEY BUILDING BLOOMINGTON MINNESOTA 0.0002
TA3471 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ AT WINDWARD APARTMENTS ALPHARETTA GEORGIA 0.0002
TA3470 BANCONE APARTMENTS AT PINEBROOK NEWARK DELAWARE 0.0002
TA3418 BANCONE WOODSTONE APARTMENTS COLORADO SPRINGS COLORADO 0.0002
TA3416 BANCONE SUNCHASE APARTMENTS CORPUS CHRISTI TEXAS 0.0002
TA3415 BANCONE ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
B-4-2
------------------------------------------------------------------------
MASTER TRUSTEE RETAINED TOTAL
LOAN ID SERVICING FEE FEE STRIPS FEES
------------------------------------------------------------------------
TA4380 0.0001 0.00002 0.00032
TA4330 0.0001 0.00002 0.00032
TA4309 0.0001 0.00002 0.00032
TA4306 0.0001 0.00002 0.00032
TA4235 0.0001 0.00002 0.00032
TA4234 0.0001 0.00002 0.00032
TA4171 0.0001 0.00002 0.00032
TA4160 0.0001 0.00002 0.00032
TA4112 0.0001 0.00002 0.00032
TA4080 0.0001 0.00002 0.00032
TA4054 0.0001 0.00002 0.00032
TA4051 0.0001 0.00002 0.00032
TA4007 0.0001 0.00002 0.00032
TA4006 0.0001 0.00002 0.00032
TA3997 0.0001 0.00002 0.00032
TA3994 0.0001 0.00002 0.00032
TA3987 0.0001 0.00002 0.00032
TA3981 0.0001 0.00002 0.00032
TA3974 0.0001 0.00002 0.00032
TA3927 0.0001 0.00002 0.00032
TA3923 0.0001 0.00002 0.00032
TA3904 0.0001 0.00002 0.00032
TA3898 0.0001 0.00002 0.00032
TA3886 0.0001 0.00002 0.00032
TA3884 0.0001 0.00002 0.00032
TA3878 0.0001 0.00002 0.00032
TA3875 0.0001 0.00002 0.00032
TA3868 0.0001 0.00002 0.00032
TA3854 0.0001 0.00002 0.00032
TA3846 0.0001 0.00002 0.00032
TA3772 0.0001 0.00002 0.00032
TA3743 0.0001 0.00002 0.00032
TA3721 0.0001 0.00002 0.00032
TA3709 0.0001 0.00002 0.00032
TA3684 0.0001 0.00002 0.00032
TA3655 0.0001 0.00002 0.00032
TA3621 0.0001 0.00002 0.00032
TA3619 0.0001 0.00002 0.00032
TA3602 0.0001 0.00002 0.00032
TA3513 0.0001 0.00002 0.00032
TA3492 0.0001 0.00002 0.00032
TA3471 0.0001 0.00002 0.00032
TA3470 0.0001 0.00002 0.00032
TA3418 0.0001 0.00002 0.00032
TA3416 0.0001 0.00002 0.00032
TA3415 0.0001 0.00002 0.00032
----------------------------------------------------------------------------------------------------------------------
PRIMARY
LOAN ID SERVICER PROPERTY NAME CITY STATE SERVICING FEE
----------------------------------------------------------------------------------------------------------------------
TA3414 BANCONE LOVE FIELD MOBILE HOME PARK DALLAS TEXAS 0.0002
TA3412 BANCONE COUNTRY VILLAGE APARTMENTS PEORIA ARIZONA 0.0002
TA3397 BANCONE STONEBRIDGE PROPERTIES PORTFOLIO VARIOUS MISSISSIPPI 0.0002
TA3252 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CALIFORNIA 0.0002
TA3241 BANCONE AMC HOLLYWOOD THEATRE PARKING HOLLYWOOD FLORIDA 0.0002
TA3230 BANCONE ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇▇▇▇
TA3227 BANCONE ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ 0.0002
TA3203 BANCONE PALOMAR SQUARE CHULA VISTA CALIFORNIA 0.0002
TA3202 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ 0.0002
TA3162 BANCONE THE ▇▇▇▇▇ PORTFOLIO VARIOUS NEW YORK 0.0002
TA3127 BANCONE CHERRY STREET INN KANSAS CITY MISSOURI 0.0002
TA3073 BANCONE NAAMANS ROAD BUSINESS PARK CLAYMONT DELAWARE 0.0002
TA3060 BANCONE ▇▇▇▇▇▇▇▇-PARKVIEW APARTMENTS CHICO CALIFORNIA 0.0002
TA2989 BANCONE EXECUTIVE PLAZA NORTHFIELD NEW JERSEY 0.0002
TA2974 BANCONE SOUTHAMPTON APARTMENTS TRIANGLE VIRGINIA 0.0002
TA2949 BANCONE DEL MONTE PARTNERS GILROY CALIFORNIA 0.0002
TA2942 BANCONE ▇▇▇▇▇▇ MANOR APARTMENTS PHILADELPHIA PENNSYLVANIA 0.0002
TA2908 BANCONE CENTRE POINT I AND III WEST ALLIS WISCONSIN 0.0002
TA2896 BANCONE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE FIESTA CROSSING MESA ARIZONA 0.0002
TA2894 BANCONE ▇▇▇▇▇▇▇▇▇▇ PLACE MESA ARIZONA 0.0002
TA2838 BANCONE LASSEN-DESOTO CHATSWORTH CALIFORNIA 0.0002
TA2822 BANCONE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
TA2819 BANCONE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.0002
TA2778 BANCONE CHARLESTON COMMONS LAS VEGAS NEVADA 0.0002
TA2758 BANCONE UNITED STATES FOREST SERVICE CLOVIS CALIFORNIA 0.0002
TA2757 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VILLAGE APARTMENTS GLENDALE ARIZONA 0.0002
TA2728 BANCONE ASTORIA TERRACE RETIREMENT CENTER SYLMAR CALIFORNIA 0.0002
TA2724 BANCONE VICKSBURG FACTORY OUTLET MALL VICKSBURG MISSISSIPPI 0.0002
TA2653 BANCONE SURE-LOCK STORAGE SOMERVILLE MASSACHUSETTS 0.0002
TA2652 BANCONE ALL BEST STORAGE NEW MILFORD CONNECTICUT 0.0002
TA2651 BANCONE PLANET SELF STORAGE BOSTON MASSACHUSETTS 0.0002
TA2588 BANCONE GOLDEN PLAZA CRANBURY NEW JERSEY 0.0002
TA2586 BANCONE RAYMOUR & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE TIMBER BUSINESS PARK FREMONT CALIFORNIA 0.0002
TA2465 ▇▇▇▇▇▇▇ ▇▇▇ PABLO'S RESTAURANT HENRIETTA NEW YORK 0.0002
TA2387 BANCONE ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.0002
TA2352 BANCONE SATCOMS APARTMENTS VARIOUS NEBRASKA 0.0002
TA2350 BANCONE TRAINER SHOPPING CENTER PORTFOLIO VARIOUS PENNSYLVANIA 0.0002
TA2332 BANCONE WESTBOROUGH ARMS APARTMENTS OMAHA NEBRASKA 0.0002
TA2210 BANCONE BEST BUY PLAZA PEMBROKE PINES FLORIDA 0.0002
TA2186 BANCONE ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ 0.0002
TA2174 BANCONE CENTENNIAL PARK VIEW APARTMENTS KINGMAN ARIZONA 0.0002
TA2169 BANCONE SYRACUSE STOR-ALL SYRACUSE NEW YORK 0.0002
B-4-3
------------------------------------------------------------------------
MASTER TRUSTEE RETAINED TOTAL
LOAN ID SERVICING FEE FEE STRIPS FEES
------------------------------------------------------------------------
TA3414 0.0001 0.00002 0.00032
TA3412 0.0001 0.00002 0.00032
TA3397 0.0001 0.00002 0.00032
TA3252 0.0001 0.00002 0.00032
TA3241 0.0001 0.00002 0.00032
TA3230 0.0001 0.00002 0.00032
TA3227 0.0001 0.00002 0.00032
TA3203 0.0001 0.00002 0.00032
TA3202 0.0001 0.00002 0.00032
TA3193 0.0001 0.00002 0.00032
TA3162 0.0001 0.00002 0.00032
TA3127 0.0001 0.00002 0.00032
TA3073 0.0001 0.00002 0.00032
TA3060 0.0001 0.00002 0.00032
TA2989 0.0001 0.00002 0.00032
TA2974 0.0001 0.00002 0.00032
TA2949 0.0001 0.00002 0.00032
TA2942 0.0001 0.00002 0.00032
TA2908 0.0001 0.00002 0.00032
TA2896 0.0001 0.00002 0.00032
TA2895 0.0001 0.00002 0.00032
TA2894 0.0001 0.00002 0.00032
TA2838 0.0001 0.00002 0.00032
TA2822 0.0001 0.00002 0.00032
TA2819 0.0001 0.00002 0.00032
TA2778 0.0001 0.00002 0.00032
TA2758 0.0001 0.00002 0.00032
TA2757 0.0001 0.00002 0.00032
TA2728 0.0001 0.00002 0.00032
TA2724 0.0001 0.00002 0.00032
TA2653 0.0001 0.00002 0.00032
TA2652 0.0001 0.00002 0.00032
TA2651 0.0001 0.00002 0.00032
TA2588 0.0001 0.00002 0.00032
TA2586 0.0001 0.00002 0.00032
TA2470 0.0001 0.00002 0.00032
TA2465 0.0001 0.00002 0.00032
TA2387 0.0001 0.00002 0.00032
TA2352 0.0001 0.00002 0.00032
TA2350 0.0001 0.00002 0.00032
TA2332 0.0001 0.00002 0.00032
TA2210 0.0001 0.00002 0.00032
TA2186 0.0001 0.00002 0.00032
TA2174 0.0001 0.00002 0.00032
TA2169 0.0001 0.00002 0.00032
----------------------------------------------------------------------------------------------------------------------
PRIMARY
LOAN ID SERVICER PROPERTY NAME CITY STATE SERVICING FEE
----------------------------------------------------------------------------------------------------------------------
TA2142 BANCONE COMFORT INN - CLEMSON CLEMSON SOUTH CAROLINA 0.0002
TA2130 BANCONE 19355-19365 BUSINESS CENTER DR. NORTHRIDGE CALIFORNIA 0.0002
TA2118 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE IRS BUILDING EL MONTE CALIFORNIA 0.0002
TA2079 BANCONE THE HEARTHSIDE PLANO TEXAS 0.0002
TA2057 BANCONE PELICAN'S LANDING HOUSTON TEXAS 0.0002
TA2026 BANCONE STAPLES BAYSIDE BAYSIDE NEW YORK 0.0002
TA2008 BANCONE ROCKVILLE CENTER RETAIL ROCKVILLE CENTRE NEW YORK 0.0002
TA1948 BANCONE ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇▇▇▇
TA1860 BANCONE EXECUTIVE INN TUPELO MISSISSIPPI 0.0002
TA1838 BANCONE FAIRFAX APARTMENTS OKLAHOMA CITY OKLAHOMA 0.0002
TA1783 ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.0002
TA1766 BANCONE ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ 0.0002
TA1654 BANCONE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ 0.0002
TA1285 BANCONE AIR PARK LA GUARDIA ASTORIA NEW YORK 0.0002
TA1237 BANCONE LA JOLLA RETAIL LA JOLLA CALIFORNIA 0.0002
TA1182 ▇▇▇▇▇▇▇ ▇▇▇▇ BUSINESS CENTER TRACY CALIFORNIA 0.0002
TA1140 ▇▇▇▇▇▇▇ ▇▇▇▇▇ TOWER PHILADELPHIA PENNSYLVANIA 0.0002
TA0768 BANCONE SIERRA VIEW MEDICAL PLAZA PORTERVILLE CALIFORNIA 0.0002
TA0545 BANCONE SHOPS AT ▇▇▇▇▇▇▇ SQUARE GENEVA ILLINOIS 0.0002
TA0522 BANCONE ▇▇▇▇▇▇▇▇▇ SHOPPING CENTER YPSILANTI MICHIGAN 0.0002
GA6192 BANCONE CAPITAL AUTOMOTIVE - DB4 VARIOUS LOUISIANA 0.0002
GA6039 BANCONE SUNRISE PORTFOLIO VARIOUS MARYLAND 0.0002
GA6038 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ AT CORAL SQUARE CORAL SPRINGS FLORIDA 0.0002
GA6037 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ AT SUNSET VALLEY AUSTIN TEXAS 0.0002
GA6010 BANCONE ONE URBAN CENTRE TAMPA FLORIDA 0.0002
GA5999 BANCONE SYSTEM ONE CENTER MIAMI FLORIDA 0.0002
GA5998 BANCONE METRO CENTER ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.0002
PLAZA
GA5997 BANCONE DORAL CORPORATE CENTER MIAMI FLORIDA 0.0002
GA5996 BANCONE BAYVIEW EXECUTIVE PLAZA MIAMI FLORIDA 0.0002
GA5952 BANCONE CAPITAL AUTOMOTIVE PORTFOLIO VARIOUS VIRGINIA 0.0002
GA5892 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0002
GA5891 ▇▇ ▇▇▇▇▇▇ THE HARBOR BUILDING LOS ANGELES CALIFORNIA 0.0002
GA5885 BANCONE ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE ELDERTRUST MERIDIAN 6 VARIOUS MARYLAND 0.0002
GA5846 ▇▇ ▇▇▇▇▇▇ SPRING CREEK APARTMENTS RIALTO CALIFORNIA 0.0007
GA5843 ▇▇ ▇▇▇▇▇▇ CASA ROYALE APARTMENTS VAN NUYS CALIFORNIA 0.0007
GA5838 ▇▇ ▇▇▇▇▇▇ PARK PLACE AND BOARDWALK APARTMENTS BUENA PARK CALIFORNIA 0.0007
GA5824 BANCONE PRIME CARE SIX VARIOUS MISSOURI 0.0002
GA5631 BANCONE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PARK PLACE LOS ANGELES CALIFORNIA 0.0002
GA5571 ▇▇ ▇▇▇▇▇▇ COLUMBIA OFFICE CENTER TROY MICHIGAN 0.0005
GA5458 BANCONE ▇▇▇▇▇▇▇▇▇ PORTFOLIO VARIOUS COLORADO 0.0002
GA5398 BANCONE SOUTHSIDE DESIGN CENTER FOREST PARK GEORGIA 0.0002
B-4-4
------------------------------------------------------------------------
MASTER TRUSTEE RETAINED TOTAL
LOAN ID SERVICING FEE FEE STRIPS FEES
------------------------------------------------------------------------
TA2142 0.0001 0.00002 0.00032
TA2130 0.0001 0.00002 0.00032
TA2118 0.0001 0.00002 0.00032
TA2087 0.0001 0.00002 0.00032
TA2079 0.0001 0.00002 0.00032
TA2057 0.0001 0.00002 0.00032
TA2026 0.0001 0.00002 0.00032
TA2008 0.0001 0.00002 0.00032
TA1948 0.0001 0.00002 0.00032
TA1860 0.0001 0.00002 0.00032
TA1838 0.0001 0.00002 0.00032
TA1783 0.0001 0.00002 0.00032
TA1766 0.0001 0.00002 0.00032
TA1654 0.0001 0.00002 0.00032
TA1420 0.0001 0.00002 0.00032
TA1285 0.0001 0.00002 0.00032
TA1237 0.0001 0.00002 0.00032
TA1182 0.0001 0.00002 0.00032
TA1140 0.0001 0.00002 0.00032
TA0768 0.0001 0.00002 0.00032
TA0545 0.0001 0.00002 0.00032
TA0522 0.0001 0.00002 0.00032
GA6192 0.0001 0.00002 0.00032
GA6039 0.0001 0.00002 0.00032
GA6038 0.0001 0.00002 0.00032
GA6037 0.0001 0.00002 0.00032
GA6010 0.0001 0.00002 0.00032
GA5999 0.0001 0.00002 0.00032
GA5998 0.0001 0.00002 0.00032
GA5997 0.0001 0.00002 0.00032
GA5996 0.0001 0.00002 0.00032
GA5952 0.0001 0.00002 0.00032
GA5892 0.0001 0.00002 0.00032
GA5891 0.0001 0.00002 0.00032
GA5885 0.0001 0.00002 0.00032
GA5848 0.0001 0.00002 0.00032
GA5846 0.0001 0.00002 0.00082
GA5843 0.0001 0.00002 0.00082
GA5838 0.0001 0.00002 0.00082
GA5824 0.0001 0.00002 0.00032
GA5631 0.0001 0.00002 0.00032
GA5624 0.0001 0.00002 0.00032
GA5571 0.0001 0.00002 0.00062
GA5458 0.0001 0.00002 0.00032
GA5398 0.0001 0.00002 0.00032
----------------------------------------------------------------------------------------------------------------------
PRIMARY
LOAN ID SERVICER PROPERTY NAME CITY STATE SERVICING FEE
----------------------------------------------------------------------------------------------------------------------
GA5281 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ PLAZA LOS ANGELES CALIFORNIA 0.0002
GA5276 BANCONE ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE SAMSUNG SEMICONDUCTOR BUILDING SAN JOSE CALIFORNIA 0.0002
GA5166 BANCONE COMPLETE CARE VARIOUS TEXAS 0.0002
GA5164 BANCONE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0002
GA4992 ▇▇ ▇▇▇▇▇▇ THE TOWERS ON WILSHIRE LOS ANGELES CALIFORNIA 0.0002
GA4985 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇▇▇▇
▇▇▇▇▇▇ BANCONE WINSTONE PARK APARTMENTS MEMPHIS TENNESSEE 0.0005
GA5940 BANCONE EVERGREENE APARTMENTS OSSEO MINNESOTA 0.0005
GA5735 BANCONE PINE ISLAND RIDGE PLAZA DAVIE FLORIDA 0.0005
GA5503 BANCONE BEACHSIDE RESORT & CONFERENCE PENSACOLA FLORIDA 0.0005
GA5418 BANCONE ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.001
GA5397 BANCONE FORTRESS SELF STORAGE ST. ▇▇▇▇▇▇ VIRGIN ISLANDS 0.001
GA5396 BANCONE WILCREST/WESTHEIMER SHOPPING CENTER HOUSTON TEXAS 0.001
GA5395 BANCONE BLOCKBUSTER DISTRIBUTION CENTER MCKINNEY TEXAS 0.0005
GA5394 BANCONE GRAND FOREST APARTMENTS KNOXVILLE TENNESSEE 0.001
GA5295 ▇▇▇▇▇▇▇ ▇▇▇▇▇ BAY APARTMENTS CORPUS CHRISTI TEXAS 0.001
GA5294 BANCONE VERANDA APARTMENTS CORPUS CHRISTI TEXAS 0.001
GA5293 BANCONE SANDCASTLE APARTMENTS CORPUS CHRISTI TEXAS 0.001
GA5283 BANCONE MADISON SQUARE SHOPPING CENTER NASHVILLE TENNESSEE 0.0005
GA4889 BANCONE OAK HILL STORAGE FACILITY AUSTIN TEXAS 0.0005
2338B BANCONE SPRINGS APTS. - PHASE II BAKERSFIELD CALIFORNIA 0.0002
2338A BANCONE SPRINGS APTS. - PHASE I BAKERSFIELD CALIFORNIA 0.0002
2151B BANCONE WIND HILL / SUNSET / KENT ST. BRYAN TEXAS 0.000325
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 0.0002
2667 BANCONE GREAT SOUTHWEST CROSSING GRAND PRAIRIE TEXAS 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0002
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.000325
2373 BANCONE SUMMIT EXECUTIVE CENTER & QUAIL CREEK AUSTIN TEXAS 0.00075
PROFESSIONAL
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CITY OKLAHOMA 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.00125
2242 BANCONE HOLIDAY INN - HOLYOKE HOLYOKE MASSACHUSETTS 0.000325
2197 BANCONE ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.001
BUILDING HEIGHTS
2188 BANCONE RAYMOUR & ▇▇▇▇▇▇▇▇ ▇▇▇▇ NY 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ D.C. 0.001
2143 BANCONE SEVEN ELEVEN CONVENIENCE STORE MELBOURNE FLORIDA 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.00125
2125 BANCONE ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.001
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.001
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 0.00075
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.001
2059 BANCONE COMFORT INN - BREEZEWOOD BREEZEWOOD PENNSYLVANIA 0.001
B-4-5
------------------------------------------------------------------------
MASTER TRUSTEE RETAINED TOTAL
LOAN ID SERVICING FEE FEE STRIPS FEES
------------------------------------------------------------------------
GA5281 0.0001 0.00002 0.00032
GA5276 0.0001 0.00002 0.00032
GA5168 0.0001 0.00002 0.00032
GA5166 0.0001 0.00002 0.001 0.00132
GA5164 0.0001 0.00002 0.00032
GA4993 0.0001 0.00002 0.00032
GA4992 0.0001 0.00002 0.00032
GA4985 0.0001 0.00002 0.00032
GA5941 0.0001 0.00002 0.00062
GA5940 0.0001 0.00002 0.00062
GA5735 0.0001 0.00002 0.00062
GA5503 0.0001 0.00002 0.00062
GA5418 0.0001 0.00002 0.00112
GA5397 0.0001 0.00002 0.00112
GA5396 0.0001 0.00002 0.00112
GA5395 0.0001 0.00002 0.00062
GA5394 0.0001 0.00002 0.00112
GA5295 0.0001 0.00002 0.00112
GA5294 0.0001 0.00002 0.00112
GA5293 0.0001 0.00002 0.00112
GA5283 0.0001 0.00002 0.00062
GA4889 0.0001 0.00002 0.00062
2338B 0.0001 0.00002 0.00032
2338A 0.0001 0.00002 0.00032
2151B 0.0001 0.00002 0.000445
2151A 0.0001 0.00002 0.00032
2667 0.0001 0.00002 0.00137
2592 0.0001 0.00002 0.00032
2478 0.0001 0.00002 0.000445
2373 0.0001 0.00002 0.00087
2292 0.0001 0.00002 0.00137
2287 0.0001 0.00002 0.00137
2242 0.0001 0.00002 0.000445
2197 0.0001 0.00002 0.00112
2188 0.0001 0.00002 0.00137
2155 0.0001 0.00002 0.00112
2143 0.0001 0.00002 0.00137
2134 0.0001 0.00002 0.00137
2125 0.0001 0.00002 0.00112
2118 0.0001 0.00002 0.00112
2113 0.0001 0.00002 0.00087
2064 0.0001 0.00002 0.00112
2059 0.0001 0.00002 0.00112
----------------------------------------------------------------------------------------------------------------------
PRIMARY
LOAN ID SERVICER PROPERTY NAME CITY STATE SERVICING FEE
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 0.0004
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0008
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0005
1979 BANCONE SHEFFIELD RIDGE APTS NEW ALBANY INDIANA 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 0.001
1943 BANCONE SHOPKO PLAZA - EAU CLAIRE EAU CLAIRE WISCONSIN 0.00125
1935 BANCONE BROOKFIELD TRAILS APTS. CINCINNATI OHIO 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇.▇. - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.001
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 0.0008
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 0.0005
1828 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ FINANCIAL PLAZA DELRAY BEACH FLORIDA 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 0.0008
1690 BANCONE ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0005
1671 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ WEST / ILES PARK PLACE OFFICE SPRINGFIELD ILLINOIS 0.0002
COMPLEX
1645 BANCONE NORMANDIE HEIGHTS APARTMENTS LAREDO TEXAS 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TEXAS 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0008
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.001
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.00125
1523 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ INSURANCE DALLAS TEXAS 0.00125
1436 BANCONE SAN MARCOS SELF STORAGE SANTA BARBARA CALIFORNIA 0.00075
----------------------------------------------------------------------------------------------------------------------
B-4-6
------------------------------------------------------------------------
MASTER TRUSTEE RETAINED TOTAL
LOAN ID SERVICING FEE FEE STRIPS FEES
------------------------------------------------------------------------
2057 0.0001 0.00002 0.00052
2056 0.0001 0.00002 0.00092
2055 0.0001 0.00002 0.00062
2050 0.0001 0.00002 0.00062
1979 0.0001 0.00002 0.00137
1944 0.0001 0.00002 0.00112
1943 0.0001 0.00002 0.00137
1935 0.0001 0.00002 0.00062
1870 0.0001 0.00002 0.00112
1867 0.0001 0.00002 0.00062
1855 0.0001 0.00002 0.00062
1842 0.0001 0.00002 0.00092
1836 0.0001 0.00002 0.00062
1828 0.0001 0.00002 0.00137
1825 0.0001 0.00002 0.00062
1808 0.0001 0.00002 0.00092
1690 0.0001 0.00002 0.00062
1671 0.0001 0.00002 0.00032
1645 0.0001 0.00002 0.00137
1632 0.0001 0.00002 0.00062
1599 0.0001 0.00002 0.00092
1569 0.0001 0.00002 0.00112
1568 0.0001 0.00002 0.00137
1523 0.0001 0.00002 0.00137
1436 0.0001 0.00002 0.00087
------------------------------------------------------------------------
EXHIBIT C-1
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_________________, being first duly sworn, deposes and says:
1. That he/she is a ___________________ of
_______________________ (the "Purchaser"), a _______________ duly organized and
existing under the laws of the State of ______________ on behalf of which
he/she makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is
_____________.
3. That the Purchaser of the COMM 1999-1, Commercial Mortgage
Pass-Through Certificates, Class [R] [MR] [LR] (the "Class [R] [MR] [LR]
Certificate") is a Permitted Transferee (as defined in Article I of the Pooling
and Servicing Agreement dated as of March 1, 1999, by and among, Deutsche
Mortgage & Asset Receiving Corporation, as depositor, Bane One Mortgage Capital
Markets, LLC, as servicer, Bane 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")), or is acquiring the Class [R]
[MR] [LR] Certificate for the account of, or as agent (including as a broker,
nominee, or other middleman) for, a Permitted Transferee and has received from
such person or entity an affidavit substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they
have come due and intends to pay its debts as they come due in the future and
the Purchaser intends to pay taxes associated with holding the Class [R] [MR]
[LR] Certificate as they become due.
5. That the Purchaser understands that it may incur tax
liabilities with respect to the Class [R] [MR] [LR] Certificate in excess of any
cash flow generated by the Class [R] [MR] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [MR]
[LR] Certificate to any person or entity from which the Purchaser has not
received an affidavit substantially in the form of this affidavit or as to which
the Purchaser has actual knowledge that the requirements set forth in paragraph
3, paragraph 4 or paragraph 7 hereof are not satisfied or that the Purchaser has
reason to know does not satisfy the requirements set forth in paragraph 4
hereof.
C-1-1
7. That the Purchaser is not a Disqualified Non-U.S. Person
and is not purchasing the Class [R] [MR] [LR] Certificate for the account of, or
as an agent (including as a broker, nominee or other middleman) for, a
Disqualified Non-U.S. Person.
8. That the Purchaser agrees to such amendments of the Pooling
and Servicing Agreement as may be required to further effectuate the
restrictions on transfer of the Class [R] [MR] [LR] Certificate to such a
"disqualified organization," an agent thereof, or a person that does not satisfy
the requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be
designated with respect to the [Upper-Tier REMIC] [Middle-Tier REMIC]
[Lower-Tier REMIC], the Purchaser agrees to act as "tax matters person" and to
perform the functions of "tax matters partner" of the [Upper-Tier REMIC]
[Middle-Tier REMIC] [Lower-Tier REMIC] pursuant to [Section 4.04] of the Pooling
and Servicing Agreement, and agrees to the irrevocable designation of the
Trustee as the Purchaser's agent in performing the function of "tax matters
person" and "tax matters partner."
10. The Purchaser agrees to be bound by and to abide by the
provisions of [Section 5.02] of the Pooling and Servicing Agreement concerning
registration of the transfer and exchange of the Class [R] [MR] [LR]
Certificate. Capitalized terms used but not defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument
to be executed on its behalf by its ________________ this ______ day of
___________, ____.
[Purchaser]
By:_______________________________
Title:
Name:
C-1-2
Personally appeared before me the above-named ______________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ________________ of the Purchaser, and acknowledged to
me that he/she executed the same as his/her free act and deed and the free act
and deed of the Purchaser.
Subscribed and sworn before me this ______ day of
____________, _____.
______________________________
NOTARY PUBLIC
COUNTY OF ____________________
STATE OF _____________________
My commission expires the __________ day of __________________, 199___.
C-1-3
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle National Bank, as Trustee
and Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Trust
Services Group
Re: COMM 1999-1, Commercial Mortgage Pass-Through
Certificates, Class [R][MR][LR]
-----------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of
[Transferee], and has no actual knowledge that such affidavit is not true and
has no reason to know that the information contained in paragraph 4 thereof is
not true.
Very truly yours,
[Transferor]
________________________________
C-2-1
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Trust
Services Group
Deutsche Mortgage & Asset Receiving Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Transfer of COMM 1999-l, Commercial Mortgage Pass-Through
Certificates Series COMM 1999-l: Class [G][H][J][K][L][R][MR][LR]
-----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the
Pooling and Servicing Agreement dated as of March 1, 1999 (the "Pooling and
Servicing Agreement"), by and among, Deutsche Mortgage & Asset Receiving
Corporation as depositor, Banc One Mortgage Capital Markets, LLC, as servicer
(in such capacity, the "Servicer") and as special servicer (in such capacity,
the "Special Servicer"), LaSalle National Bank, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"), on behalf of the
holders of COMM 1999-1, Commercial Mortgage Pass-Through Certificates (the
"Certificates") in connection with the transfer by ___________ (the "Seller") to
the undersigned (the "Purchaser") of [$__________ aggregate Certificate
Balance][___% Percentage Interest] of Class [G][H][J][K][L][R][MR][LR]
Certificates, in certificated fully registered form (such registered interest,
the "Certificate"). Terms used but not defined herein shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby
represents and warrants to you as follows:
[For Institutional Accredited Investors only] 1. The Purchaser
is an "institutional accredited investor" (an entity meeting the requirements of
Rule 501 (a)( 1), (2), (3) or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act")) and has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Certificate, and we and any accounts for which we
are acting are each able to bear the economic risk of our or its investment. We
are acquiring the Certificate purchased by us for our own account or for one or
more accounts (each of which is an "institutional accredited investor") as to
each of which we exercise sole investment discretion. The Purchaser hereby
undertakes to reimburse the Trust for any costs incurred by it in connection
with this transfer.
D-1-1
[For Qualified Institutional Buyers only] 1. The Purchaser is
a "qualified institutional buyer" within the meaning of Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
The Purchaser is aware that the transfer is being made in reliance on Rule 144A,
and the Purchaser has had the opportunity to obtain the information required to
be provided pursuant to paragraph (d)(4)(i) of Rule 144A.
[For Affiliated Persons only]. 1. The Purchaser is a person
involved in the organization or operation of the issuer or an affiliate of such
a person, as defined in Rule 405 of the Securities Act of 1933, as amended (the
"Securities Act").
2. The Purchaser's intention is to acquire the Certificate (a)
for investment for the Purchaser's own account or (b) for resale to (i)
"qualified institutional buyers" in transactions under Rule 144A, or (ii)
"institutional accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act, pursuant
to any other exemption from the registration requirements of the Securities Act,
subject in the case of this clause (ii) to (a) the receipt by the Certificate
Registrar of a letter substantially in the form hereof, (b) the receipt by the
Certificate Registrar of an opinion of counsel acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act, (c) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the Securities Act and other applicable
laws, and (d) a written undertaking to reimburse the Trust for any costs
incurred by it in connection with the proposed transfer. It understands that the
Certificate (and any subsequent Individual Certificate) has not been registered
under the Securities Act, by reason of a specified exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the Purchaser's investment intent (or intent to
resell to only certain investors in certain exempted transactions) as expressed
herein.
3. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
4. The Purchaser has reviewed the Private Placement Memorandum
dated February [___], 1999, relating to the Certificates (the "Private Placement
Memorandum") and the agreements and other materials referred to therein and has
had the opportunity to ask questions and receive answers concerning the terms
and conditions of the transactions contemplated by the Private Placement
Memorandum.
5. The Purchaser hereby undertakes to be bound by the terms
and conditions of the Pooling and Servicing Agreement in its capacity as an
owner of an Individual Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
D-1-2
6. The Purchaser will not sell o r otherwise transfer any
portion of the Certificate, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:
[ ] The Purchaser is a "U.S. Person" and it has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
[ ] The Purchaser is not a "U.S. Person" and under applicable law in
effect on the date hereof, no Taxes will be required to be
withheld by the Certificate Registrar (or its agent) with respect
to Distributions to be made on the Certificate(s). The Purchaser
has attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the beneficial
owner of the Certificate(s) and states that such Purchaser is not
a U.S. Person or (ii) two duly executed copies of IRS Form 4224
(or successor form), which identify such Purchaser as the
beneficial owner of the Certificate(s) and state that interest and
original issue discount on the U.S. Securities, the Certificate
Registrar Priority Securities and Eligible Investments is, or is
expected to be, effectively connected with a U.S. trade or
business. The Purchaser agrees to provide to the Certificate
Registrar updated IRS Forms W-8 or IRS Forms 4224, as the case may
be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after the
occurrence of any event requiring a change in the most recent IRS
form of certification furnished by it to the Certificate
Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership (except to the
extent provided in applicable Treasury Regulations) or other entity created or
organized in or under the laws of the United States or any of its political
subdivisions, an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or a trust if (A) for taxable years beginning
after December 31, 1996 (or for taxable years ending after August 20, 1996, if
the trustee has made an applicable election) a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more United States fiduciaries have the authority to control all
substantial decisions of such trust, or (B) for all other taxable years, such
trust is subject to United States federal income tax regardless of the source of
its income (or, to the extent provided in applicable Treasury Regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
D-1-3
Please make all payments due on the Certificates:**
(a) by wire transfer to the following account at a bank or entity in
New York, New York, having appropriate facilities therefor:
Account number: _________________________________
Institution: ____________________________________
(b) by mailing a check or draft to the following address:
__________________________________________________
__________________________________________________
__________________________________________________
Very truly yours,
__________________________________
[The Purchaser]
By: ______________________________
Name:
Title:
Dated: ___________ __, ____
____________________________
** Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b). For holders of Individual Certificates, wire transfers
are only available if such holder's Individual Certificates have an
aggregate principal face amount of at least U.S. $5,000,000.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF ERISA REPRESENTATION LETTER
[Date]
LaSalle National Bank, as Trustee
and Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Deutsche Mortgage & Asset Receiving Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: COMM 1999-1, Commercial Mortgage Pass-Through
Certificates, Class [B][C][D][E][F][G][H][J][K][L][M][R][MR][LR]
----------------------------------------------------------------
Ladies and Gentlemen:
_____________________ (the "Purchaser") intends to purchase
from _________________ (the "Seller") $______________ initial Certificate
Balance or ____% Percentage Interest of COMM 1999-1, Commercial Mortgage
Pass-Through Certificates, Class [B][C][D][E][F][G][H] [J][K][L][M][R][MR] [LR],
CUSIP No. _____________ (the "Certificates"), issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") dated as of March 1,
1999, by and among, Deutsche Mortgage & Asset Receiving Corporation as
depositor, Banc One Mortgage Capital Markets, LLC, as servicer (in such
capacity, the "Servicer") and as special servicer (in such capacity, the
"Special Servicer"), LaSalle National Bank, as trustee (the "Trustee"), and ABN
AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). All capitalized terms used
herein and not otherwise defined shall have the meaning set forth in the Pooling
and Servicing Agreement. The Purchaser hereby certifies, represents and warrants
to, and covenants with, the Depositor, the Certificate Registrar and the Trustee
that:
1.(1) The Purchaser is not (a) an employee benefit plan or
other retirement arrangement, including an individual retirement account or a
▇▇▇▇▇ plan, which is subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), Section 4975 of the Code, or any essentially
similar Federal, State or local law (a "Similar Law") (each, a "Plan"), or
(b) a collective investment fund in which such Plans are invested, an insurance
company using assets of separate accounts or general accounts which include
assets of Plans (or which are deemed pursuant to ERISA or any Similar Law to
include assets of Plans) or other Person acting on behalf of any such Plan or
using the assets of any such Plan, other than an insurance company using the
assets of its general account under circumstances whereby such purchase and the
-----------------------
1 Purchasers of the R, MR or LR Certificates must meet the requirements of
this paragraph.
D-2-1
subsequent holding of such Certificate by such insurance company would not
constitute or result in a prohibited transaction within the meaning of Section
406 or 407 or ERISA, Section 4975 of the Code, or a materially similar
characterization under any Similar Law; and
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or 1(b) above, except in the case of the Class R, Class MR
or Class LR Certificate, which may not be transferred unless the transferee
represents it is not such a Person, such Purchaser is required to provide to the
Depositor, the Trustee and the Certificate Registrar an Opinion of Counsel which
establishes to the satisfaction of the Depositor, the Trustee and the
Certificate Registrar that the purchase or holding of the Certificates by or on
behalf of a Plan will not result in the assets of the Trust Fund being deemed to
be "plan assets" and subject to the fiduciary responsibility provisions of ERISA
and the Code or Similar Law, and will not constitute or result in a prohibited
transaction within the meaning of Section 406 or Section 407 of ERISA or Section
4975 of the Code, and will not subject the Servicer, the Depositor, the Trustee,
the Fiscal Agent or the Certificate Registrar to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code),
which Opinion of Counsel shall not be at the expense of the Servicer, the
Depositor, the Trustee, the Fiscal Agent or the Certificate Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on this _____ day of ____________, _____.
Very truly yours,
By: ____________________________________
Name:
Title:
D-2-2
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information
----------------
Name of Mortgagor: ___________________________________________
Servicer: ___________________________________________
Loan No.: ___________________________________________
Custodian/Trustee
-----------------
Name: LaSalle National Bank
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Custodian/Trustee: __________________________________________
Mortgage File No.: __________________________________________
Depositor
---------
Name: Deutsche Mortgage & Asset Receiving Corporation
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Certificates: COMM 1999-1, Commercial Mortgage Pass-Through
Certificates
The undersigned Servicer hereby acknowledges that it has
received from LaSalle National Bank, as Trustee for the Holders of COMM 1999-1,
Commercial Mortgage Pass-Through Certificates, Series COMM 1999-l, the documents
referred to below (the "Documents"). All capitalized terms not otherwise defined
in this Request for Release shall have the meanings given them in the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") dated as of
March 1, 1999, by and among the Trustee, ABN AMRO Bank N.V., as fiscal agent,
Deutsche Mortgage & Asset Receiving Corporation, as depositor, and Banc One
Mortgage Capital Markets, LLC, as servicer and Banc One Mortgage Capital
Markets, LLC, as special servicer.
E-1
( ) Promissory Note dated _________, 199__, in the original
principal sum of $___________ made by _________, payable to, or
endorsed to the order of, the Trustee.
( ) Mortgage recorded on ____________ as instrument no. ________ in
the County Recorder's Office of the County of ____________ State
of _____________ in book/reel/docket _______ of official records
at page/image ___________.
( ) Deed of Trust recorded on __________ as instrument no.
_________ in the County Recorder's Office of the County of
___________, State of _______ in book/reel/docket __________ of
official records at page/image _____________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee,
recorded on ___________ as instrument no. ____________ in the
County Recorder's Office of the County of _______________ State
of _____________ in book/reel/docket _________ of official
records at page/image _______________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Note or Mortgage.
( ) ____________________________
( ) ____________________________
( ) ____________________________
( ) ____________________________
The undersigned Servicer hereby acknowledges and agrees as
follows:
(1) The Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee,
solely for the purposes provided in the Agreement.
(2) The Servicer shall not cause or permit the Documents to
become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or
other impositions nor shall the Servicer assert or seek
to assert any claims or rights of set-off to or against
the Documents or any proceeds thereof.
(3) The Servicer shall return the Documents to the
Custodian when the need therefor no longer exists,
unless the Mortgage Loan relating to the Documents has
been liquidated and the proceeds thereof have been
remitted to the Collection Account and except as
expressly provided in the Agreement.
E-2
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or
control of the Servicer shall at all times be earmarked
for the account of the Trustee, and the Servicer shall
keep the Documents and any proceeds separate and
distinct from all other property in the Servicer's
possession, custody or control.
Banc One Mortgage Capital Markets, LLC
By: ____________________________________
Title: _________________________________
Date: ___________, 19__
E-3
EXHIBIT I
FORM OF REGULATION S TRANSFER CERTIFICATE
LaSalle National Bank, as Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Transfer of COMM 1999-l, Commercial Mortgage Pass-Through
Certificates, Class [ ]
----------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the
Pooling and Servicing Agreement dated as of March 1, 1999 (the "Pooling and
Servicing Agreement"), by and among Deutsche Mortgage Asset & Receivables
Corporation, as depositor, Banc One Mortgage Capital, LLC, as servicer (the
"Servicer"), Banc One Mortgage Capital, LLC, as special servicer (the "Special
Servicer"), LaSalle National Bank, as trustee (the "Trustee") and ABN AMRO Bank
N.V., as fiscal agent (the "Fiscal Agent"), on behalf of the holders of the
COMM 1999-l, Commercial Mortgage Pass-Through Certificates, Class [ ](the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _____________ (the "Transferee") of $_________________
Certificate Balance of Certificates, in fully registered form (each, an
"Individual Certificate"), or a beneficial interest of such aggregate
Certificate Balance in the Regulation S Global Certificate (the "Global
Certificate") maintained by The Depository Trust Company or its successor as
Depositary under the Pooling and Servicing Agreement (such transferred
interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby
certify that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a
person in the United States;
[(2) at the time the buy order was originated, the Transferee
was outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the Transferee was outside the United States;]*
I-1
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
undersigned nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;]*
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates
that are being transferred are not "restricted securities" as defined in
Rule 144 under the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Depositor, the Trustee, the Fiscal
Agent, the Servicer and the Special Servicer.
___________________________________
Transferor
By: _______________________________
Name:
Title:
Dated: ___________ __, 199_
____________________________
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
I-2
EXHIBIT J
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to
Section 5.02(c)(ii)(A) of the Pooling and Servicing Agreement)
LaSalle National Bank, as Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Transfer of COMM 1999-l Commercial Mortgage Pass-Through
Certificates, Class [ ]
---------------------------------------------------------
Reference is hereby made to the Pooling and Servicing
Agreement dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), by
and among Deutsche Mortgage Asset & Receivables Corporation, as depositor, Banc
One Mortgage Capital, LLC, as servicer (the "Servicer"), Banc One Mortgage
Capital, LLC, as special servicer (the "Special Servicer"), LaSalle National
Bank, as trustee (the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[____________] aggregate
Certificate Balance of Certificates (the "Certificates") which are held in the
form of the Rule 144A Global Certificate (CUSIP No. ) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest for an interest in
the Regulation S Global Certificate (CUSIP No. ) to be held with [Euroclear]
[CEDEL]* (Common Code) through the Depositary.
In connection with such request and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and pursuant to and in accordance with Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in
the United States,
------------------------
* Select appropriate depositary.
J-1
[(2) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any persons acting on its
behalf reasonably believed that the Transferee was outside the United States,]**
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the transaction was pre-arranged
with a buyer in the United States,]**
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable, and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Depositor, the Trustee, the Servicer,
the Special Servicer and the Fiscal Agent.
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
Dated: _______________, ________
-----------------
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
J-2
EXHIBIT K
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(c)(ii)(B) of the Pooling and Servicing Agreement)
LaSalle National Bank, as Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Transfer of COMM 1999-l Commercial Mortgage Pass-Through
Certificates Series, Class [ ]
---------------------------------------------------------
Reference is hereby made to the Pooling and Servicing
Agreement dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), by
and among Deutsche Mortgage Asset & Receivables Corporation, as depositor, Banc
One Mortgage Capital, LLC, as servicer (the "Servicer"), Banc One Mortgage
Capital, LLC, as special servicer (the "Special Servicer"), LaSalle National
Bank, as trustee (the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[____________] aggregate
Certificate Balance of Certificates (the "Certificates") which are held in the
form of the Rule 144A Global Certificate (CUSIP No. ) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in ------------ the
Certificates for an interest in the Regulation S Global Certificate (Common Code
No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in
the United States,
[(2) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was outside the United States,]*
K-1
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States,]*
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable, and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Depositor, the Trustee, the Fiscal
Agent, the Servicer and the Special Servicer.
[Insert Name of Transferor]
By: ____________________________________
Name:
Title:
Dated: ________ __, _____
------------------------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
K-2
EXHIBIT L
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to Section 5.02(c)(ii)(C) of
the Pooling and Servicing Agreement)
LaSalle National Bank, as Certificate
Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Transfer of COMM 1999-l Commercial Mortgage Pass-Through
Certificates, Class [ ]
---------------------------------------------------------
Reference is hereby made to the Pooling and Servicing
Agreement dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), by
and among Deutsche Mortgage Asset & Receivables Corporation, as depositor, Banc
One Mortgage Capital, LLC, as servicer (the "Servicer"), Banc One Mortgage
Capital, LLC, as special servicer (the "Special Servicer"), LaSalle National
Bank, as trustee (the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[_______________] aggregate
Certificate Balance of Certificates (the "Certificates") which are held in the
form of the Regulation S Global Certificate (CUSIP No. ____________) with
[Euroclear] [CEDEL]* (Common Code _________) through the Depository in the name
of [insert name of transferor] (the "Transferor"). The Transferor has requested
a transfer of such beneficial interest in the Certificates for an interest in
the Regulation 144A Global Certificate (CUSIP No. ____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or an jurisdiction.
------------------------
* Select appropriate depositary.
L-1
This certificate and the statements contained herein are made
for your benefit and the benefit of the Depositor, the Trustee, the Fiscal
Agent, the Servicer and the Special Servicer.
[Insert Name of Transferor]
By: _____________________________________
Name:
Title:
Dated: ________ __, 19__
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-2
FORM OF DELINQUENT LOAN STATUS REPORT
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-4
FORM OF HISTORICAL LOSS ESTIMATE REPORT
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-5
FORM OF REO STATUS REPORT
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-6
FORM OF WATCH LIST
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-7
FORM OF OPERATING STATEMENT ANALYSIS REPORT
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-8
FORM OF OPERATING STATEMENT ANALYSIS WORKSHEET
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-9
CSSA 100.1 SET-UP DATA RECORD LAYOUT
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-10
CSSA 100.1 PERIODIC DATA RECORD LAYOUT
[AVAILABLE FROM TRUSTEE]
EXHIBIT M-11
CSSA 100.1 PROPERTY DATA FILE
[AVAILABLE FROM TRUSTEE]
EXHIBIT N
RETAINED INTEREST
RETAINED
LOAN ID SERVICER PROPERTY NAME CITY STATE INTEREST
------- -------- ------------------------------------------- ------------------ ------------------ -----------
GA5941 BancOne Winstone Park Apartments Memphis Tennessee 0.0005
GA5940 BancOne Evergreene Apartments Osseo Minnesota 0.0005
GA5735 BancOne Pine Island Ridge Plaza Davie Florida 0.0005
GA5503 BancOne Beachside Resort & Conference Pensacola Florida 0.0005
GA5418 BancOne ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.001
GA5397 BancOne Fortress Self Storage St. ▇▇▇▇▇▇ Virgin Islands 0.001
GA5396 BancOne Wilcrest/Westheimer Shopping Center Houston Texas 0.001
GA5395 BancOne Blockbuster Distribution Center McKinney Texas 0.0005
GA5394 BancOne Grand Forest Apartments Knoxville Tennessee 0.001
GA5295 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bay Apartments Corpus Christi Texas 0.001
GA5294 BancOne Veranda Apartments Corpus Christi Texas 0.001
GA5293 BancOne Sandcastle Apartments Corpus Christi Texas 0.001
GA5283 BancOne Madison Square Shopping Center Nashville Tennessee 0.0005
GA4889 BancOne Oak Hill Storage Facility Austin Texas 0.0005
2338b BancOne Springs Apts. - Phase II Bakersfield California 0.0002
2338a BancOne Springs Apts. - Phase I Bakersfield California 0.0002
2151b BancOne Wind Hill / Sunset / Kent St. Bryan Texas 0.000325
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 0.0002
2667 BancOne Great Southwest Crossing Grand Prairie Texas 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0002
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.000325
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇ 0.00075
Quail Creek Apartments
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ City Oklahoma 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.00125
2242 BancOne Holiday Inn - Holyoke Holyoke Massachusetts 0.000325
2197 BancOne ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.001
Medical Office Building
2188 BancOne Raymour & ▇▇▇▇▇▇▇▇ ▇▇▇▇ NY 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ D.C. 0.001
2143 BancOne Seven Eleven Convenience Store Melbourne Florida 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.00125
2125 BancOne ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.001
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.001
L-1
RETAINED
LOAN ID SERVICER PROPERTY NAME CITY STATE INTEREST
------- -------- ------------------------------------------- ------------------ ------------------ -----------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 0.00075
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.001
2059 BancOne Comfort Inn - Breezewood Breezewood Pennsylvania 0.001
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 0.0004
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0008
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0005
1979 BancOne Sheffield Ridge Apts New Albany Indiana 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 0.001
1943 BancOne Shopko Plaza - Eau Claire Eau Claire Wisconsin 0.00125
1935 BancOne Brookfield Trails Apts. Cincinnati Ohio 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇.▇. - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.001
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 0.0008
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 0.0005
1828 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Financial Plaza Delray Beach Florida 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 0.0008
1690 BancOne ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0005
1671 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ West / Iles Park Place Springfield Illinois 0.0002
Office Complex
1645 BancOne Normandie Heights Apartments Laredo Texas 0.00125
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Texas 0.0005
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0.0008
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.001
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0.00125
1523 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Insurance Dallas Texas 0.00125
1436 BancOne San Marcos Self Storage Santa Barbara California 0.00075
L-2