SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report: April 10, 1998
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(Date of earliest event reported)
Deutsche Mortgage & Asset Receiving Corporation
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(Exact name of registrant as specified in its charter)
Delaware 33-08328 04-3310019
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation
One International Place - Room 520, Boston, Massachusetts 02110
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Address of Principal Executive Office
Registrant's telephone number, including area code: (617) 951-7690
<PAGE>
Item 5. Other Events.
On March 30, 1998, the Deutsche Mortgage & Asset Receiving Corporation (the
"Company") caused the issuance, pursuant to a Pooling and Servicing Agreement
dated as of March 1, 1998 (the "Pooling and Servicing Agreement") by and among
the Company, 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 of Deutsche Mortgage & Asset Receiving Corporation, Commercial
Pass-Through Certificates, Series 1998-C1 (the "Certificates"), issued in 18
classes: 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 R and Class LR Certificates.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Item 601(a) of Regulation S-K
Exhibit No. Exhibit No. Description
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1 4 Pooling and Servicing
Agreement dated as of
March 1, 1998.
<PAGE>
Pursuant to the requirements of the Securities Act of 1934, the Registrant
has duly caused this report to be signed on behalf of the Registrant by the
undersigned thereunto duly authorized.
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
By: /s/Nancy D. Smith
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Nancy D. Smith
President
Date: April 10, 1998
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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
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POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1998
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Commercial Mortgage Pass-Through Certificates
Series 1998-C1
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<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms
SECTION 1.02. Certain Calculations
SECTION 1.03. Certain Constructions
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase and Sale Agreement
SECTION 2.02. Acceptance by Custodian and the Trustee
SECTION 2.03. Representations, Warranties and Covenants of the Depositor;
Repurchase and Substitution of Mortgage Loans
SECTION 2.04. Representations, Warranties and Covenants of the Servicer,
Special Servicer and Trustee
SECTION 2.05. Execution and Delivery of Certificates; Issuance of Lower-Tier
Regular Interests
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Administration of the Mortgage
Loans
SECTION 3.02. Liability of the Servicer
SECTION 3.03. Collection of Certain Mortgage Loan Payments
SECTION 3.04. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts
SECTION 3.05. Collection Account; Distribution Account; and Upper-Tier
Distribution Account
SECTION 3.06. Permitted Withdrawals from the Collection Account
SECTION 3.07. Investment of Funds in the Collection Account, the REO Account,
the Lock-Box Accounts, the Cash Collateral Accounts
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions and
Fidelity Coverage
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing Compensation
SECTION 3.13. Reports to the Trustee; Collection Account Statements
SECTION 3.14. Annual Statement as to Compliance
SECTION 3.15. Annual Independent Public Accountants' Servicing Report
SECTION 3.16. Access to Certain Documentation
SECTION 3.17. Title and Management of REO Properties and REO Account
Properties
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties
SECTION 3.19. Additional Obligations of the Servicer and the Special Servicer;
Inspections
SECTION 3.20. Authenticating Agent
SECTION 3.21. Appointment of Custodians
SECTION 3.22. Reports to the Securities and Exchange Commission; Available
Information
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and
Reserve Accounts
SECTION 3.24. Property Advances
SECTION 3.25. Appointment of Special Servicer
SECTION 3.26. Transfer of Servicing Between Servicer and Special Servicer;
Record Keeping; Asset Status Report
SECTION 3.27. [RESERVED]
SECTION 3.28. Limitations on and Authorizations of the Servicer and Special
Servicer with Respect to Certain Mortgage Loans
SECTION 3.29. Intentionally Left Blank
SECTION 3.30. Modification, Waiver, Amendment and Consents
SECTION 3.31. Duties of Healthcare Adviser; Compensation of Healthcare Adviser
SECTION 3.32. Healthcare Adviser; Elections
SECTION 3.33. Limitation on Liability of Healthcare Adviser
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions
SECTION 4.02. Statements to Certificateholders; Reports by Trustee; Other
Information Available to the Holders and Others
SECTION 4.03. Compliance with Withholding Requirements
SECTION 4.04. REMIC Compliance
SECTION 4.05. Imposition of Tax on the Trust Fund
SECTION 4.06. Remittances; P&I Advances
SECTION 4.07. Grantor Trust Reporting
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
SECTION 5.02. Registration, Transfer and Exchange of Certificates
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates
SECTION 5.04. Appointment of Paying Agent
SECTION 5.05. Access to Certificateholders' Names and Addresses
SECTION 5.06. Actions of Certificateholders
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the Special
Servicer
SECTION 6.02. Merger or Consolidation of the Servicer
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer and
Others
SECTION 6.04. Limitation on Resignation of the Servicer and the Special
Servicer; Termination of the Servicer and the Special
Servicer
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer and the Special Servicer
SECTION 6.06. Servicer or Special Servicer as Owner of a Certificate
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default
SECTION 7.02. Trustee to Act; Appointment of Successor
SECTION 7.03. Notification to Certificateholders
SECTION 7.04. Other Remedies of Trustee
SECTION 7.05. Waiver of Past Events of Default; Termination
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee
SECTION 8.02. Certain Matters Affecting the Trustee
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Certificates or Mortgage
Loans
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification
SECTION 8.06. Eligibility Requirements for Trustee
SECTION 8.07. Resignation and Removal of the Trustee
SECTION 8.08. Successor Trustee and Fiscal Agent
SECTION 8.09. Merger or Consolidation of Trustee
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent
ARTICLE IX
TERMINATION
SECTION 9.01. Termination
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts
SECTION 10.02. Limitation on Rights of Certificateholders
SECTION 10.03. Governing Law
SECTION 10.04. Notices
SECTION 10.05. Severability of Provisions
SECTION 10.06. Notice to the Depositor and Each Rating Agency
SECTION 10.07. Amendment
SECTION 10.08. Confirmation of Intent
SECTION 10.09. No Intended Third-Party Beneficiaries
SECTION 10.10. No Recourse
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class X Certificate
Exhibit A-4 Form of Class B Certificate
Exhibit A-5 Form of Class C Certificate
Exhibit A-6 Form of Class D Certificate
Exhibit A-7 Form of Class E Certificate
Exhibit A-8 Form of Class F Certificate
Exhibit A-9 Form of Class G Certificate
Exhibit A-10 Form of Class H Certificate
Exhibit A-11 Form of Class J Certificate
Exhibit A-12 Form of Class K Certificate
Exhibit A-13 Form of Class L Certificate
Exhibit A-14 Form of Class M Certificate
Exhibit A-15 Form of Class Q-1 Certificate
Exhibit A-16 Form of Class Q-2 Certificate
Exhibit A-17 Form of Class R Certificate
Exhibit A-18 Form of Class LR Certificate
Exhibit B-1 Mortgage Loan Schedule
Exhibit B-2 Healthcare Loan Schedule
Exhibit B-3 Servicing Fee Rate Schedule with Respect to Certain Mortgage
Loans
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Form of Custodial Agreement
Exhibit G Securities Legend
Exhibit H-1 BCMC Purchase Agreement
Exhibit H-2 ContiTrade Purchase Agreement
Exhibit H-3 GACC Purchase Agreement
Exhibit H-4 MSMC Purchase Agreement
Exhibit H-5 RMF 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 Formof Transfer Certificate for Exchange or Transfer from Rule
144A Global Certificate to Regulation S Global Certificate
after the Restricted Period
Exhibit L Formof Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global
Certificate
Exhibit M-1 Form of Comparative Financial Status Report
Exhibit M-2 Form of Delinquent Loan Status Report
Exhibit M-3 Form of Historical Loan Modification Report
Exhibit M-4 Form of Historical Loss Estimate Report
Exhibit M-5 Form of REO Status Report
Exhibit M-6 Form of Watch List
Exhibit M-7 Form of 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
<PAGE>
Pooling and Servicing Agreement, dated as of March 1, 1998, 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 portion of the Trust Fund, the "Trust
REMICs"), be treated for federal income tax purposes as two separate real estate
mortgage investment conduits (each, a "REMIC" or, in the alternative, the
"Lower-Tier REMIC" and the "Upper-Tier REMIC," respectively). The Class A-1,
Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L and Class M Certificates constitute "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 Class LR Certificates constitute the sole Class of
"residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions. There are also fourteen Classes of uncertificated Lower-Tier Regular
Interests issued under this Agreement (the Class A-1-L, Class A-2-L, Class B-L,
Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class H-L, Class J-L,
Class K-L, Class L-L, Class M-L and Class LWAC Interests), each of which will
constitute a regular interest in the Lower-Tier REMIC. All such Lower-Tier
Regular Interests will be held by the Trustee as assets of the Upper-Tier REMIC.
The parties intend 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-1
Certificates represent an undivided beneficial interest 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 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
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Class A-1 $ 382,886,000
Class A-2 $ 852,361,000
Class X(1) $1,816,539,338
Class B $ 108,992,000
Class C $ 108,992,000
Class D $ 99,909,000
Class E $ 27,248,000
Class F $ 45,413,000
Class G $ 45,413,000
Class H $ 18,165,000
Class J $ 22,706,000
Class K $ 22,706,000
Class L $ 40,872,000
Class M $ 40,878,155
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(1) The initial Notional Balance of Class X Certificates is equal to the
Lower-Tier Balance of the Class LWAC Interest, which corresponds to
99.9999% of the aggregate Stated Principal Balance of the Mortgage Loans,
as of the Cut-off Date.
The initial Certificate Balance of each of the Class Q-1, Class Q-2, Class
R and Class LR Certificates is zero. Additionally, the Class Q-1, Class Q-2,
Class R 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 per annum rates of interest for the
Lower-Tier Regular Interests are set forth in Section 4.01(a)(i).
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $1,816,541,155.
In consideration of the mutual agreements herein contained, the Depositor,
the Servicer, the Special Servicer, the Trustee and the Fiscal Agent agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"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.
"Actual/365 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"Adjustment Rate": With respect to any future Distribution Date, a
percentage equal to the excess of the Weighted Average Net Mortgage Pass-Through
Rate for the current Distribution Date over (i) the Pass-Through Rate for the
Class A-1 Certificates if such subsequent Distribution Date occurs on or before
the Assumed Final Distribution Date for the Class A-1 Certificates, (ii) the
Pass-Through Rate for the Class A-2 Certificates if such subsequent Distribution
Date occurs after the Assumed Final Distribution Date for the Class A-1
Certificates and on or before the Assumed Final Distribution Date for the Class
A-2 Certificates and, (iii) if such subsequent Distribution Date occurs
thereafter, the Pass-Through Rate for the most senior class of Certificates
(other than the Class X Certificates) for which the Assumed Final Distribution
Date coincides with or follows such subsequent Distribution Date.
"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 P&I Advance, in the event that
the related Borrower makes payment of the amount in respect of which such P&I
Advance was made with interest at the Default Rate, the Advance Interest Amount
payable to the Servicer, the Trustee or the Fiscal Agent shall be paid (i) first
from the amount of Default Interest paid by the Borrower and (ii) to the extent
such amounts are insufficient therefor, from amounts on deposit in the
Collection Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most recently
published in the "Money Rates" section of The Wall Street Journal, New York
edition, on or before the related Record Date) compounded monthly as of each
Servicer Remittance Date. 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 (but excluding) 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.
"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 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 unreimbursed P&I
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 first anniversary of the
date on which an extension of the Maturity Date of such Mortgage Loan becomes
effective as a result of a modification of such Mortgage Loan pursuant to the
terms hereof, which extension does not change the Mortgage Rate, principal
balance or amortization terms of any Mortgage Loan or the amount of Monthly
Payments on the Mortgage Loan (unless during such extension period the borrower
has been delinquent for at least 60 days or more, in which case, the first
Distribution Date following such 60 day delinquency), (ii) 30 days after an
uncured Delinquency (without regard to the application of any grace period)
occurs in respect of such Mortgage Loan, (iii) immediately after the date on
which a reduction in the amount of Monthly Payments on such Mortgage Loan, or a
change in the Mortgage Rate, principal balance or amortization terms of any
Mortgage Loan or the amount of Monthly Payments of such Mortgage Loan (other
than an extension of the Maturity Date), becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer, (iv) immediately
after a receiver has been appointed, (v) immediately after a borrower declares
bankruptcy, (vi) immediately after a Mortgage Loan becomes an REO Mortgage Loan,
(vii) upon a default in the payment of a Balloon Payment, (viii) immediately
upon the occurrence of an event for which a Property Advance would be required
to be made by the Servicer or Special Servicer, or (ix) any other event which,
in the discretion of the Servicer and of which the Servicer becomes aware in
performing its obligations hereunder, in accordance with the Servicing Standard,
would materially and adversely impair the value of a Mortgaged Property and
security for the related Mortgage Loan. 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).
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian and
the Servicer shall be responsible for determining whether any assignment is
legally sufficient or in recordable form.
"Assumed Final Distribution Date": The Assumed Final Distribution Date for
the Class X, Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates is as set forth below:
Assumed Final
Class Distribution Date
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Class X...................................February 15, 2023
Class A-1.................................September 15, 2007
Class A-2.................................February 15, 2008
Class B...................................February 15, 2008
Class C...................................March 15, 2008
Class D...................................July 15, 2012
Class E...................................November 15, 2012
"Assumed Maturity Date": With respect to any Mortgage Loan that is not a
Balloon Loan, the maturity date of such Mortgage Loan. With respect to 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.
"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.
"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 and (iv) any Servicer Prepayment
Interest Shortfalls remitted by the Servicer to the Collection Account, 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;
(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, the
Special Servicer and the Healthcare Adviser, respectively, are
entitled;
(f) all amounts representing certain expenses reimbursable or payable
to the Servicer, the Special Servicer, the Trustee or the Fiscal
Agent and other amounts permitted to be retained by the Servicer
or withdrawn by the Servicer from the Collection Account to the
extent expressly set forth in this Agreement (including, without
limitation, as provided in Section 3.06 and including any
indemnities provided for herein), including interest thereon as
provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account, the Upper-Tier Distribution Account, the
Distribution Account, the 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 or the Lower-Tier REMIC under the
circumstances and to the extent described in Section 4.05;
(j) Prepayment Premiums;
(k) Excess Interest; and
(l) Default Interest.
"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.
"BCMC": Boston Capital Mortgage Company Limited Partnership.
"BCMC Loans": The Mortgage Loans conveyed to the Depositor pursuant to the
BCMC Purchase Agreement.
"BCMC Purchase Agreement": The Mortgage Loan Purchase Agreement dated as of
the Cut-off Date between BCMC and the Depositor, a copy of which is attached
hereto as Exhibit H-1.
"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 related 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.
"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 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 R 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-1, Class Q-2 Class R and Class LR Certificates) (a) on
or prior to the first Distribution Date, an amount equal to the aggregate
initial Certificate Balance of such Class, as specified in the Preliminary
Statement hereto, (b) as of any date of determination after the first
Distribution Date, the Certificate Balance of such Class 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 A-1
and Class A-2 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 clause (ii), for the purpose of giving any
consent or taking any action pursuant to this Agreement, any Certificate
beneficially owned by the Depositor, the Servicer, the 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 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, any Certificate beneficially owned by the Special Servicer
will be deemed outstanding.
(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 or Lower-Tier Regular Interests,
all of the Certificates or Lower-Tier Regular Interests bearing the same
alphabetical and numerical Class designation.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": A per annum rate equal to 6.22%.
"Class A-1-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.538%.
"Class A-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class 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 6.664%.
"Class B-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the 6.861%.
"Class C-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class 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 7.231%.
"Class D-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the lesser of 7.50%
and the Weighted Average Net Mortgage Pass-Through Rate.
"Class E-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the lesser of 7.50%
and the Weighted Average Net Mortgage Pass-Through Rate.
"Class F-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class G Pass-Through Rate": A per annum rate equal to the lesser of 7.50%
and the Weighted Average Net Mortgage Pass-Through Rate.
"Class G-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class H Pass-Through Rate": A per annum rate equal to the lesser of 7.50%
and the Weighted Average Net Mortgage Pass-Through Rate.
"Class H-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest 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 6.22%
and the Weighted Average Net Mortgage Pass-Through Rate.
"Class J-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class K Pass-Through Rate": A per annum rate equal to the lesser of 6.22%
and the Weighted Average Net Mortgage Pass-Through Rate.
"Class K-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class L Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser of 6.22%
and the Weighted Average Net Mortgage Pass-Through Rate.
"Class L-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class LWAC Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class M Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class M Pass-Through Rate": A per annum rate equal to the lesser of 6.22%
and the Weighted Average Net Mortgage Pass-Through Rate.
"Class M-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class 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-15 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-16 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-17 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 Pass-Through Rate": A per annum rate equal to the Weighted Average
Net Mortgage Pass-Through Rate minus the Weighted Average Pass-Through Rate. The
Class X Pass-Through Rate represents a "specified portion," within the meaning
of Treasury Regulations Section 1.860G-1(a)(2), of the interest payments on the
Class LWAC Interest.
"Clipper Pooling and Servicing Agreement": As defined in Section 3.01(a).
"Clipper Remittance Agreement": As defined in Section 3.01(a).
"Clipper Servicer": As defined in Section 3.01(a).
"Closing Date": March 30, 1998.
"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.
"Collateral Account": As defined in Section 3.30(e). The Collateral Account
shall be maintained as an Eligible Account.
"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,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1, 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
1998, 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.
"Comparative Financial Status Report": A report substantially containing
the content described in Exhibit M-1 attached hereto, setting forth, among other
things, the occupancy, revenue, net operating income or net cash flow, as
applicable, and Debt Service Coverage Ratio for each Mortgage Loan 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, (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 Sellers.
"ContiTrade": ContiTrade Services L.L.C.
"ContiTrade Loans": The Mortgage Loans conveyed to the Depositor pursuant
to the ContiTrade Purchase Agreement.
"ContiTrade Purchase Agreement": The Mortgage Loan Purchase Agreement dated
as of the Cut-off Date between ContiTrade and the Depositor, a copy of which is
attached hereto as Exhibit H-2.
"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 (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 (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 M 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
135 South LaSalle Street, Suite 1625, Chicago, Illinois 60674-4107 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 M-9, M-10 and M-11, 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, substantially in
the form of Exhibit F hereto, as the same may be amended or modified from time
to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and, unless
the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee or 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, 1998.
"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(d), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Deutsche Mortgage & Asset Receiving
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
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 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.
"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, delinquent 60 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, however, 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 renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property or takes other actions consistent with Treasury
Regulations Section 1.856-4(b)(5)(ii) of the regulations of the United States
Department of the Treasury.
"Disqualified Non-U.S. Person": With respect to a Class R 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 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 (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 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 or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization 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 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 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. 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, Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, 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, 1998.
"Distribution Date Statement": As defined in Section 4.02(a).
"DMG": Deutsche Morgan Grenfell, Inc.
"Due Date": With respect to any Distribution Date and/or any Mortgage Loan,
as the case may be, either the first day or the tenth day or the fifteenth day
or the twentieth 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.
"Eligible Account": Any of (i) (A) 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-1 by Moody's and
F-1+ by Fitch (if rated 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 (if rated by Fitch) and "Aa2" by Moody's) or (B) as
to which the Trustee has received written confirmation from each of the Rating
Agencies that holding funds in such account would not cause any Rating Agency to
qualify, withdraw or downgrade any of its ratings on the Certificates 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. ss.9.10(b),
having in either case a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal and state authority, or (iii)
any other account that, as evidenced by a written confirmation from each Rating
Agency would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates, which may
be an account maintained with the Trustee 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 related Mortgage Loan Seller
in connection with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account may be
a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Servicer pursuant
to the related Mortgage, Cash Collateral Agreement, Lock-Box Agreement or Loan
Agreement for the account of such Borrower for application toward the payment of
taxes, insurance premiums, assessments and similar items in respect of the
related Mortgaged Property.
"Euroclear": Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Servicer Event of Default or Special Servicer Event
of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans indicated on
the Mortgage Loan Schedule as having a Revised 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(e), which shall be entitled "Deutsche Mortgage & Asset
Receiving Corporation, as Trustee, in trust for Holders of Asset Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
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 or the Upper-Tier REMIC formed hereunder.
"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
report pursuant to Section 4.02(b)(i) 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 Adjustment Distribution Date": For any Class of Certificates in
respect of any prepayment means the Assumed Final Distribution Date for such
Class.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or Mortgage Loan subject to repurchase by the Depositor or the
related 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 Healthcare Adviser (with respect to Healthcare 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.
"Fixed Interest Payment Adjustment": With respect to any of the Class A-1,
Class A-2, Class B, Class C, Class D or Class E Certificates and any prepayment
of principal that is applied, in whole or in part, in reduction of the
Certificate Balance of such Class on any Distribution Date, one-twelfth of the
product of (a) the amount, if any, by which the Pass-Through Rate for such Class
exceeds the applicable Reinvestment Yield (compounding monthly), multiplied by
(b) the applicable Prepayment Amount.
"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.
"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 as of
the Cut-off Date between GACC and the Depositor, a copy of which is attached
hereto as Exhibit H-3.
"Global Certificates": The Class A-1, Class A-2, Class X, Class B, Class C,
Class D and Class E Certificates.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Healthcare Adviser": Survey, LLC, an Alabama limited liability company, or
its successor in interest, or any successor Healthcare Adviser as herein
provided.
"Healthcare Adviser Fee": With respect to each Healthcare Loan and for any
Distribution Date, a portion of the Servicing Fee which is an amount per
Interest Accrual Period equal to the portion of the Servicing Fee which is the
product of (i) one-twelfth of the Healthcare Adviser Fee Rate and (ii) the
Stated Principal Balance of such Healthcare Loan as of the Due Date in the
immediately preceding Collection Period (without giving effect to payments of
principal on such Healthcare Loan on such Due Date).
"Healthcare Adviser Fee Rate": A per annum rate equal to : (a) with respect
to a Healthcare Loan that is a ContiTrade Loan, 0.02% and (b) with respect to a
Healthcare Loan that is an RMF Loan, 0.02% (except with respect to the Mortgage
Loans known as the Clipper Loan Participations (Loan Numbers CLP001, CLP002,
CLP003, CLP004, CLP005 and CLP006) for which the Healthcare Adviser Fee will be
0.03125%).
"Healthcare Adviser Standard": With respect to the Healthcare Adviser shall
mean providing advice and consultation with respect to the Healthcare Loans and
Healthcare Properties using the same care, skill, prudence, and diligence with
which, it (a) advises and administers similar health care loans and health care
properties comparable to the Healthcare Loans and Healthcare Properties and held
for other third-party portfolios or (b) advises and administers health care
loans or health care properties for its own account, whichever standard is
higher, but without regard to (i) any known relationship that the Healthcare
Adviser, or an affiliate of the Healthcare Adviser may have with the borrowers
or any other party to this Agreement; (ii) the ownership of any Certificate by
the Healthcare Adviser or any affiliate of the Healthcare Adviser, as
applicable; (iii) the Healthcare 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 Healthcare
Adviser of other health care loans or health care properties.
"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, the Trustee.
"Indemnified 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) addressed to the Servicer and the Trustee has been
delivered to the Trustee to that effect) or (ii) any other Person (including the
Servicer and the Special Servicer) if the Servicer, on behalf of itself and the
Trustee, has received an Opinion of Counsel (at the expense of the party seeking
to be deemed an Independent Contractor) to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully registered
physical form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Act, or an
entity in which all the equity owners meet such requirements.
"Instructions": As defined in Section 3.30(d).
"Insurance Proceeds": Proceeds of any fire and hazard insurance policy,
title policy or other insurance policy relating to a Mortgage Loan (including
any amounts paid by the Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and any
Class of Certificates (other than the Class Q-1, Class Q-2, Class R and Class LR
Certificates), an amount equal to interest for the related Interest Accrual
Period at the Pass-Through Rate for such Class 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.
"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.
"LCLP": Llama Company, L.P.
"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 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 any documents relating to a Mortgage Loan to
receive revenues therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan and Section 3.07, which Person shall be taxed on
all reinvestment income or gain thereon. The Servicer shall be permitted to make
withdrawals therefrom for deposit into the related Cash Collateral Accounts in
accordance with the terms of the related Mortgage Loan.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box
agreement, if any, between the related Originator and the Borrower, pursuant to
which the related Lock-Box Account, if any, may have been established.
"Lock-out Period": With respect to any Mortgage Loan, the period of time
specified in the related Loan Documents during which voluntary prepayments by
the related Borrower are prohibited.
"Lower-Tier Balance": With respect to any Class of Lower-Tier Regular
Interest, the principal balance specified in Section 4.01(a)(i). For purposes of
all computations under this Agreement, the Lower-Tier Balances shall be
expressed to eight decimal places.
"Lower-Tier Distribution Amount": As defined in Section 4.01(a)(iii).
"Lower-Tier Regular Interests": The Class A-1-L, Class A-2-L, Class B-L,
Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class H-L, Class J-L,
Class K-L, Class L-L, Class M-L and Class LWAC Interests.
"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.
"Lower-Tier Remittance Rate": With respect to any Class of Lower-Tier
Regular Interest, the rate specified in Section 4.01(a)(i).
"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 .015% per annum.
"Maturity Date": With respect to each Mortgage Loan, the Maturity Date as
set forth on the Mortgage Loan Schedule.
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan) and any Due Date, the scheduled monthly payment of principal, if
any, and interest at the Mortgage Rate, excluding any Balloon Payment (but 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": Moody's Investors Services, 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 (xv) pertaining to such particular Mortgage
Loan and any additional documents required to be added to such Mortgage File
pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01 and from time to time held in the Trust Fund,
the mortgage loans originally so transferred, assigned and held being identified
on the Mortgage Loan Schedule as of the Cut-off Date. Such term shall include
any REO Mortgage Loan, Specially Serviced Mortgage Loan or any Mortgage Loan
that has been defeased in whole or in part.
"Mortgage Loan Purchase Agreements": Collectively, the BCMC Purchase
Agreement, the ContiTrade Purchase Agreement, the GACC Purchase Agreement, the
MSMC Purchase Agreement and the RMF 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;
(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; and
(k) whether the Mortgage Loan is an Actual/360 Loan or an Actual/365
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 Sellers": Collectively, GACC, MSMC, BCMC, ContiTrade and
RMF.
"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 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.
"MSMC": Morgan Stanley Mortgage Capital Inc.
"MSMC Loans": The Mortgage Loans conveyed to the Depositor pursuant to the
MSMC Purchase Agreement.
"MSMC Purchase Agreement": The Mortgage Loan Purchase Agreement dated as
of the Cut-off Date between MSMC and the Depositor, a copy of which is attached
hereto as Exhibit H-4.
"MSC": Morgan Stanley & Co., Incorporated.
"Net Default Interest": As defined in Section 3.05(d).
"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
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.
"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 a Servicing Officer or a 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 1998,
a notional principal amount equal to the aggregate initial Notional Balance of
such Class, as specified in the Preliminary Statement hereto, and (b) as of any
Distribution Date after April 1998, a notional principal amount equal to the
aggregate Lower-Tier Balance of the Class LWAC Interest, which corresponds to
99.9999% of the aggregate Stated Principal Balance of the Mortgage Loans
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 customarily performing functions similar to those performed by any of
the above designated officers and also with respect to a particular matter, any
other officer 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 or Lower-Tier
REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any
income or property of either REMIC, (b) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor") or (c) 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 Sellers, and (ii) with respect
to any Mortgage Loan acquired by a Mortgage Loan Seller, the originator of such
Mortgage Loan.
"Ownership Interest": Any record or beneficial interest in a Class R 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-1, Class Q-2, Class R and Class LR Certificates), the
Pass-Through Rate for such Class as set forth below:
Class Pass-Through Rate
----- -----------------
Class A-1 Class A-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class X Class X Pass-Through Rate
Class B Class B Pass-Through Rate
Class C Class C Pass-Through Rate
Class D Class D Pass-Through Rate
Class E Class E Pass-Through Rate
Class F Class F Pass-Through Rate
Class G Class G Pass-Through Rate
Class H Class H Pass-Through Rate
Class J Class J Pass-Through Rate
Class K Class K Pass-Through Rate
Class L Class L Pass-Through Rate
Class M Class M Pass-Through Rate
"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-1, Class Q-2,
Class R and Class LR Certificates), the percentage interest is equal to the
initial denomination of such Certificate divided by the initial Certificate
Balance or Notional Balance, as applicable, of such Class of Certificates. With
respect to any Class Q-1, Class Q-2, Class R or Class LR Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the date upon which such funds are required to be drawn,
regardless of whether issued by the Depositor, the Servicer, the Trustee or any
of their respective Affiliates and having at all times the required ratings, if
any, provided for in this definition, unless each Rating Agency shall have
confirmed in writing to the Servicer that a lower rating would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as to payment
of principal and interest by, the United States or any agency
or instrumentality thereof provided such obligations are backed
by the full faith and credit of the United States of America
including, without limitation, obligations of: the U.S.
Treasury (all direct or fully guaranteed obligations), the
Farmers Home Administration (certificates of beneficial
ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed
Title XI financing), the Small Business Administration
(guaranteed participation certificates and guaranteed pool
certificates), the U.S. Department of Housing and Urban
Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds);
provided, however, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal
due at maturity that cannot vary or change, (B) if rated by
S&P, must not have an "r" highlighter affixed to their rating,
(C) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus
a fixed spread (if any) and must move proportionately with that
index, and (D) such investments must not be subject to
liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations),
the Farm Credit System (consolidated systemwide bonds and
notes), the Federal Home Loan Banks (consolidated debt
obligations), the Federal National Mortgage Association (debt
obligations), the Student Loan Marketing Association (debt
obligations), the Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations); provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if rated by S&P, must not have an
"r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest
rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index,
and (D) such investments must not be subject to liquidation
prior to their maturity;
(iv) federal funds, unsecured certificates of deposit, time or
similar deposits, bankers' acceptances and repurchase
agreements, with maturities of not more than 365 days, of any
bank, the short term obligations of which are rated in the
highest short term rating category by each Rating Agency (or,
if not rated by 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
Moody's rating of Bank One, Texas, N.A.); provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if rated by S&P, must not have an
"r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest
rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index,
and (D) such investments must not be subject to liquidation
prior to their 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
Moody's rating of Bank One, Texas, N.A.); provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if rated by S&P, must not have an
"r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest
rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index,
and (D) such investments must not be subject to liquidation
prior to their maturity;
(vi) debt obligations with maturities of not more than 365 days
rated by each Rating Agency (or, if not rated by 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 the investments described in this clause must (A)
have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (B) if rated by S&P, must not have
an "r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest
rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index,
and (D) such investments must not be subject to liquidation
prior to their maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date of
issuance thereof) with maturities of not more than 365 days and
that is rated by each Rating Agency (or, if not rated by
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 the investments described in this
clause must (A) have a predetermined fixed dollar of principal
due at maturity that cannot vary or change, (B) if rated by
S&P, must not have an "r" highlighter affixed to their rating,
(C) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus
a fixed spread (if any) and must move proportionately with that
index, and (D) such investments must 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 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); and
(ix) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment,
provided that each Rating Agency has confirmed in writing to
the Servicer, Special Servicer or Trustee, as applicable, that
such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates;
provided, however, that, in the judgment of the Servicer, such instrument
continues to qualify as a "cash flow investment" pursuant to Code Section
860G(a)(6) earning a passive return in the nature of interest and that no
instrument or security shall be a Permitted Investment if (i) such instrument or
security evidences a right to receive only interest payments or (ii) the right
to receive principal and interest payments derived from the underlying
investment provides a yield to maturity in excess of 120% of the yield to
maturity at par of such underlying investment.
"Permitted Transferee": With respect to a Class R 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 or Class LR Certificate to
such Person will not cause the Upper-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 Amount": With respect to any Class of Regular Certificates
(other than the Class X Certificates) for any Distribution Date and any
prepayment of principal distributable to Certificateholders on such Distribution
Date, shall be the product of (x) the full amount of such prepayment of
principal, multiplied by (y) a fraction, the numerator of which is the portion
of the Principal Distribution Amount for such Distribution Date that is payable
in respect of such Class, and the denominator of which is the entire Principal
Distribution Amount for such Distribution Date. For purposes of the calculation
of the Prepayment Amount, in respect of a Mortgage Loan with an Anticipated
Repayment Date, any principal payment amount on or after the Anticipated
Repayment Date for such Mortgage Loan will not be considered a prepayment of
principal.
"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 mortgagor 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-Through Rate plus the Trustee Fee) 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, other than an amount paid in connection with the release
of the related Mortgaged Property through defeasance, which are intended to
compensate the holder of the related Note for prepayment.
"Primary Servicing Fee Rate": A per annum rate equal to: 0.0175%, with
respect to the BCMC Loans; (b) as specified on Exhibit B-3, with respect to the
ContiTrade Loans; (c) 0.005%, with respect to the GACC Loans; (d) as specified
on Exhibit B-3, with respect to the MSMC Loans; and (e) 0.02%, with respect to
the RMF Loans.
"Principal Distribution Amount": For any Distribution Date will be equal to
the sum of:
(i) the principal component of all scheduled Monthly Payments (other
than Balloon Payments) due on the Mortgage Loans on or 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 or purchased from the Trust Fund pursuant to Section 9.01;
(iv) the portion of Unscheduled Payments allocable to principal of any
Mortgage Loan that was liquidated during the related Collection Period;
(v) the principal component of all Balloon Payments and, to the extent
not included in the preceding clauses, any other principal payment on any
Mortgage Loan received on or after the Maturity Date thereof, to the extent
received during the related Collection Period;
(vi) to the extent not included in the preceding clauses (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 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 other than any amount paid in connection with the
release of the related Mortgaged Property through defeasance.
"Private Global Certificate": Each of the Regulation S Global Certificates
or Rule 144A Global Certificates with respect to the Class F, G, H, J, K, L and
Class M 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 or
Upper-Tier REMIC to be advanced by the Servicer or the Special Servicer, as
applicable.
"Prospectus": The Depositor's Prospectus Supplement dated March 24, 1998
relating to the Class A-1, Class A-2, Class X, Class B, Class C, Class D, and
Class E Certificates.
"PV Yield Loss Amount": With respect any Distribution Date and any
prepayment of principal of a Mortgage Loan that is distributable to
Certificateholders on such Distribution Date, means: (a) with respect to the
Class A-1, Class A-2, Class B, Class C, Class D and Class E Certificates as to
which such prepayment is payable, in whole or in part, in reduction of the
Certificate Balance thereof on such Distribution Date, an amount equal to the
present value of a series of monthly payments, each equal to the related Fixed
Interest Payment Adjustment deemed payable on each subsequent Distribution Date
to and including the applicable Final Adjustment Distribution Date, and each
discounted at the applicable Reinvestment Yield (compounding monthly) for the
number of months remaining from the then current Distribution Date to the
applicable subsequent Distribution Date; and (b) with respect to the Class X
Certificates, an amount equal to the present value of a series of monthly
payments, which may vary over time, each equal to the applicable related
Variable Interest Payment Adjustment deemed payable on each subsequent
Distribution Date to and including the applicable Final Adjustment Distribution
Date, and each discounted at the applicable Reinvestment Yield (compounding
monthly) for the number of months remaining from the then current Distribution
Date to the applicable subsequent Distribution Date.
"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 "AA" or
better by Fitch (or, if such company is not rated by Fitch, is rated at least
A-1X by A.M. Best's Key Rating Guide) and "Baa3" or better by Moody's, (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-1X by A.M. Best's Key Rating Guide) and in
the case of Moody's, 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
Moody's, insurance financial strength rating of "A2" 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, (1) 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; (vii) will comply with all of the
representations and warranties relating to Mortgage Loans set forth in the
related Mortgage Loan Purchase Agreement, as of the date of substitution; (viii)
has an Environmental Report relating to the related Mortgaged Property in its
Mortgage File; and (ix) as to which the Trustee has received an Opinion of
Counsel, at the related 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 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": June 15, 2031, the next Distribution Date
occurring two years after the latest Assumed Maturity Date of any of the
Mortgage Loans.
"Rating Agency": Any of Fitch or Moody's. 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 Moody's and in the case of any
other rating agency shall mean such highest rating category or better without
regard to any plus or minus or numerical qualification.
"Real Property": Land or improvements thereon such as buildings or other
inherently permanent structures thereon (including items that are structural
components of the buildings or structures), in each such case as such terms are
used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date shall mean the
amount, if any, by which the aggregate Certificate Balance of the Certificates
after giving effect to distributions made on such Distribution Date exceeds the
aggregate Stated Principal Balance of the Mortgage Loans immediately following
the Determination Date preceding such Distribution Date.
"Reassignment of Assignment of Leases, Rents and Profits": As defined in
Section 2.01(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, Class L and
Class M Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class F, Class G, Class H,
Class J, Class K, Class L and Class M Certificates issued as such on the Closing
Date.
"Related Loan Pool": As defined in Section 3.05(d)
"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).
"Reinvestment Yield": With respect to any Class of Regular Certificates
will be the yield for "This Week" as reported by the Federal Reserve Board in
Federal Reserve Statistical Release H.15 (519) as of the Determination Date for
such prepayment for the constant maturity treasury having a maturity coterminous
with the applicable Final Adjustment Distribution Date. If there is no
Reinvestment Yield for instruments having a maturity coterminous with the
remaining term (to maturity or Anticipated Repayment Date, where applicable) of
the applicable Mortgage Loan, then the Reinvestment Yield will be equal to the
interpolation of the yields of the constant maturity treasuries with maturities
next longer and shorter than such remaining term to maturity or Anticipated
Repayment Date.
"Related Certificate" and "Related Lower-Tier Regular Interest": For any
Class of Lower-Tier Regular Interest (other than the Class LWAC Interest), the
related Class of Certificates set forth below and for any Class of Certificates
(other than the Class X, Class Q-1, Class Q-2, Class R, Class LR Certificates),
the related Class of Lower-Tier Regular Interest set forth below:
Related Lower-Tier
Related Certificate Regular Interest
------------------- ------------------
Class A-1 Class A-1-L Interest
Class A-2 Class A-2-L Interest
Class B Class B-L Interest
Class C Class C-L Interest
Class D Class D-L Interest
Class E Class E-L Interest
Class F Class F-L Interest
Class G Class G-L Interest
Class H Class H-L Interest
Class J Class J-L Interest
Class K Class K-L Interest
Class L Class L-L Interest
Class M Class M-L Interest
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations (including any applicable proposed regulations) and rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"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:
(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 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 substitute 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, 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.
"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 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 Servicing Fee": With respect to each Mortgage Loan listed on
Exhibit B-3 hereto and for any Distribution Date, an amount per Interest Accrual
Period equal to the product of (i) one-twelfth of the Retained 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). The Retained
Servicing Fee shall be freely assignable and non-terminable.
"Retained Servicing Fee Rate": As specified on Exhibit B-3 hereto.
"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 related Mortgage Loan Seller has
waived its right under the related Mortgage Loan Purchase Agreement to receive
amounts in excess of such 2% increase.
"RMF": Red Mountain Funding, L.L.C.
"RMF Loans": The Mortgage Loans conveyed to the Depositor pursuant to the
RMF Purchase Agreement.
"RMF Purchase Agreement": The Mortgage Loan Purchase Agreement dated as of
Cut-off Date between RMF and the Depositor, a copy of which is attached hereto
as Exhibit H-5.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class F, Class G, Class H,
Class J, Class K, Class L and Class M 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, June
15, 2029 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).
"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 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, the related Primary Servicing Fee Rate, the related
Healthcare Adviser Fee Rate, if any, and the Retained Servicing Fee Rate, if
any.
"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
Healthcare 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 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;
(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 sub-servicer'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) 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 (after 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 of which the Servicer has notice (other than a failure
by the borrower to pay principal or interest) and which materially and adversely
affects the interests of the Certificateholders has occurred and remained
unremedied for the applicable grace period specified in the Mortgage Loan (or,
if no grace period is specified, 60 days); 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 Healthcare Loan in which the related Healthcare
Property is an 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; (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; (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 (1) or (2) above the related mortgagor'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") (i) 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 (vii), 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, (ii)
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
Servicer, (iii) with respect to the circumstances described in clause (vi) or
(vii) above, when such default is cured;
provided, in each case, that 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).
"Successor Manager": As defined in Section 3.19(b) below.
"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 or Lower-Tier REMIC under the REMIC Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the IRS or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of assignment of
any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto;
(ii) all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (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 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 Agreements; 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).
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle National Bank, a nationally 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 0.0025% per annum.
"Underwriters": DMG, MSC and LCLP.
"Unscheduled Payments": With respect to a Mortgage Loan and a Collection
Period, all Net Liquidation Proceeds and Net Insurance Proceeds payable under
such Mortgage Loan, the Repurchase Price of any Mortgage Loan that is
repurchased or purchased pursuant to Sections 2.03(d), 2.03(e) or 9.01, the
Substitution Shortfall Amount with respect to any 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(c), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of Deutsche Mortgage & Asset Receiving Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, 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 Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a corporation,
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, 1996 a court within the United States
is able to exercise primary supervision over the administration of such trust,
and one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
"Variable Interest Payment Adjustment": With respect to the Class X
Certificates and any particular prepayment of principal distributable on any
Distribution Date, the amount deemed payable on any particular subsequent
Distribution Date through and including the related Final Adjustment
Distribution Date which shall vary with the occurrence of each Assumed Final
Distribution Date that occurs prior to such Final Adjustment Distribution Date,
and which shall equal one-twelfth of (a) the applicable Adjustment Rate,
multiplied by (b) the amount of such prepayment of principal.
"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-1, Class Q-2, Class R 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 of
the Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C and Class B 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
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 M Certificates, second to the Class L
Certificates; third, to the Class K Certificates; fourth, to the Class J
Certificates; fifth, to the Class H Certificates; sixth, to the Class G
Certificates; seventh, to the Class F Certificates; eighth, to the Class E
Certificates; ninth, to the Class D Certificates; tenth, to the Class C
Certificates; and finally, to the Class B Certificates (provided in each case
that no Certificate Balance in respect of any such Class 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).
"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).
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 or Actual/365 Mortgage Loans) and of Advances
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, Actual/365 Mortgage Loans and of Advances provided
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 at 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 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 and Class M
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-1, Class Q-2,
Class LR 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 and Class LR
Certificates shall be deemed to be outstanding so long as the Trust Fund has not
been terminated pursuant to Section 9.01. For purposes of this Agreement, the
Class X Certificates shall be deemed to be outstanding until their Notional
Balance has been reduced to zero.
<PAGE>
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 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 Agreements to the extent related to
any Mortgage Loan. The Servicer, Special Servicer or the Trustee shall notify
the related Mortgage Loan Seller and the Depositor upon such party's becoming
aware of any breach of the representations and warranties contained in this
Agreement or the respective Mortgage Loan Purchase Agreement that gives rise to
a cure or repurchase obligation; provided, that the failure of the Servicer, the
Special Servicer or Trustee to give such notification shall not constitute a
waiver of any cure or repurchase obligation. The Depositor shall cause the
Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts to be
transferred to and held in the name of the Servicer on behalf of the Trustee as
successor to the related 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, Mortgage Pass-Through Certificates,
Series 1998-C1, 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;
(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
mortgagor at the Mortgaged Property (in each case with evidence
of filing thereon) and which were in the possession of the
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 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 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 mortgagor 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 Agreement
is separate from the Mortgage or Loan Agreement, a copy
thereof; with respect to the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts, if any, a copy of the UCC-1
financing statements, if any, submitted for filing with respect
to the related 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 mortgagor 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;
(xvi) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the related
mortgagor if the Mortgage, Note or other document or instrument
referred to above was signed on behalf of the mortgagor
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 Servicer 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 related Mortgage Loan
Seller, shall use its best efforts to promptly prepare a substitute document for
signature by the Depositor or the related Mortgage Loan Seller, as applicable,
and thereafter the 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 related 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 related Mortgage Loan Seller has caused to be delivered to the
Custodian a pro forma title insurance policy in lieu of an original title
insurance policy or a commitment for title insurance "marked-up" at the closing
of such Mortgage Loan, and the related 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 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. Each Mortgage Loan Seller 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), and (xiv) 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), and (xiv) 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 related
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 180 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 related 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).
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 related 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 related Mortgage Loan Seller by providing a
written report, setting forth for each affected Mortgage Loan, with
particularity, the nature of the defective or missing document. The Depositor
shall or shall cause the related 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 related 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.
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 authorized, executed
and delivered by the Depositor and assuming the due
authorization, execution and delivery of this Agreement by each
other party hereto, this Agreement and all of the obligations of
the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable in accordance with the
terms of this Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the performance
of its obligations hereunder by the Depositor will not conflict
with any provision of its certificate of incorporation or
bylaws, or any law or regulation to which the Depositor is
subject, or conflict with, result in a breach of or constitute a
default under (or an event which with notice or lapse of time or
both would constitute a default under) any of the terms,
conditions or provisions of any agreement or instrument to which
the Depositor is a party or by which it is bound, or any order
or decree applicable to the Depositor, or result in the creation
or imposition of any lien on any of the Depositor's assets or
property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions
contemplated by this Agreement. The Depositor has obtained any
consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery
and performance by the Depositor of this Agreement;
(v) The certificate of incorporation of the Depositor provides that
the Depositor is permitted to engage in only the following
activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge 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;
(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 or proceeding pending against the
Depositor in any court or by or before any other governmental
agency or instrumentality which would materially and adversely
affect the ability of the Depositor to carry out its obligations
under this Agreement; and
(vii) 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;
(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 related
Mortgage Loan Seller contained in the related Mortgage Loan
Purchase Agreement are true and correct as of the Cut-off Date;
(vi) (1) Such Mortgage Loan is directly secured by a Mortgage on Real
Property, and (2) either (i) substantially all of the proceeds
of such Mortgage Loan were used to acquire or improve or protect
an interest in real property that, at the origination date, was
the only security for the Mortgage Loan (in the case of a
Mortgage Loan that has not been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code at
a time when the Mortgage Loan was not in default or default with
respect thereto was not reasonably foreseeable) or (ii) the fair
market value of such real property was at least equal to 80% of
the principal amount of the Mortgage Loan (a) at origination
(or, if the Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code at
a time when the Mortgage Loan was not in default or default with
respect thereto was not reasonably foreseeable, the date of the
last such modification) or (b) at the Closing Date; provided
that for purposes of this clause (ii) the fair market value of
the real property interest must first be reduced by (A) the
amount of any lien on the real property interest that is senior
to the Mortgage Loan (unless such senior lien also secures a
Mortgage Loan, in which event the computation described in (a)
and (b) of this clause (ii) shall be made on an aggregate basis)
and (B) a proportionate amount of any lien that is in parity
with the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in (a) and (b) of
this clause (ii) shall be made on an aggregate basis); 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 Cut-off 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 and the Servicer.
(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 or repurchase or cause the related
Mortgage Loan Seller to cure, repurchase or substitute such Mortgage Loan at the
Repurchase Price within 90 days after receipt of notice of such failure or
substitute such loan, pursuant to Section 2.03(e) below; 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 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 related
Mortgage Loan Seller in the respective 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 related Mortgage
Loan Seller and such Mortgage Loan Seller shall, to the extent such Mortgage
Loan Seller is obligated to cure or repurchase the related Mortgage Loan under
the terms of its respective 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 such
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 Seller will be permitted to deliver a Qualifying
Substitute Mortgage Loan and to pay cash equal to the applicable to the
Substitution Shortfall Amount, subject to the terms of the related Mortgage Loan
Purchase Agreement and this Agreement.
As to any Qualifying Substitute Mortgage Loan, the Trustee shall direct the
related 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 related 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 related Mortgage
Loan Seller shall be entitled to retain all amounts received in respect of such
Removed Mortgage Loan.
In any month in which the related Mortgage Loan Seller substitutes one or
more Qualifying Substitute Mortgage Loans for one or more Removed Mortgage
Loans, the Servicer will determine the applicable Substitution Shortfall Amount.
The Trustee shall direct the related Mortgage Loan Seller to deposit cash equal
to such amount into the Distribution 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 related Mortgage Loan
Seller to give written notice to the Trustee 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 a 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
respective 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 such Mortgage Loan Seller any Mortgage Loan released
pursuant hereto, and any rights of the Depositor in, to and under the respective
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 respective 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 such Mortgage Loan Seller any Removed Mortgage Loan released
pursuant hereto, and any rights of the Depositor in, to and under the respective
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.
(i) If for any reason any Mortgage Loan Seller or the Depositor fails to
fulfill its obligations under this Section 2.03 with respect to any Mortgage
Loan, the Servicer 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 related 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 or 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 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 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 in any material
impairment of the right, 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.
(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:
(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 or 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 order or decree
of any court binding on the Special Servicer or any order or
regulation of any federal, state, municipal or governmental
agency having jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance which, in any such
event, would have consequences that would materially and
adversely affect the condition (financial or otherwise) or
operation of the Special Servicer or its properties or impair
the ability of the Trust Fund to realize on the Mortgage Loans;
(v) 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.
(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, Special Servicer, the Healthcare 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, Healthcare 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 related 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 and hereby declares that it
holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC and the
Holders of the Regular Certificates and the Class R Certificates and (ii) has
caused to be executed and caused to be authenticated and delivered to or upon
the order of the Depositor, or as directed by the terms of this Agreement, Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class Q-1, Class Q-2, Class R and
Class LR Certificates 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 (ii)) and Lower Tier Regular Interests evidence ownership of
the entire Trust Fund.
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class A-1-L, Class A-2-L, Class B-L, Class C-L, Class D-L, Class
E-L, Class F-L, Class G-L, Class H-L, Class J-L, Class K-L, Class L-L, Class M-L
and Class LWAC Interests are hereby designated as "regular interests" in the
Lower-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the
Class LR Certificates are hereby designated as the sole Class of "residual
interests" in the Lower-Tier REMIC within the meaning of Section 860G(a)(2) of
the Code. 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 and Class M Certificates
are hereby designated as "regular interests" in the Upper-Tier REMIC within the
meaning of Section 860G(a)(1) of the Code 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. The Class X
Certificates represent a "specified portion" of the interest payments on the
Class LWAC Interest, within the meaning of Treasury Regulations Section
1.860G-1(a)(2). The Closing Date is hereby designated as the "Startup Day" of
the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of Section
860G(a)(9) of the Code. The "latest possible maturity date" of the Lower-Tier
Regular Interests and the Regular Certificates for purposes of Section
860G(a)(1) of the Code is the Scheduled Final Distribution Date. The initial
Lower-Tier Balance and the Lower-Tier Remittance Rate of each Class of the
Lower-Tier Regular Interests is set forth in Section 4.01(a)(i).
(b) The Class Q-1 Certificates represent an 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 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. The Class Q-2B Certificates
represent pro rata undivided beneficial interests in the portion of the Trust
Fund consisting of the Excess Interest collected on the GACC Loans. The Class
Q-1 and Class Q-2 Certificates do not represent regular or residual interests in
either the Upper-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.
<PAGE>
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 Certificateholders) in
accordance with the Servicing Standard, provided, however, that the Mortgage
Loans known as the Clipper Loan Participations (Loan Numbers CLP001, CLP002,
CLP003, CLP004, CLP005 and CLP006) shall be serviced by SouthTrust Capital
Funding Corporation (the "Clipper Servicer") pursuant to that certain Pooling
and Servicing Agreement dated as of July 1, 1997 by and among LaSalle National
Bank (as the "RMF Trustee"), RMF and the Clipper Servicer (the "Clipper Pooling
and Servicing Agreement"), and remittances will be made to the Servicer pursuant
to the Loan Participation Remittance Agreement dated as of March 1, 1998 (the
"Clipper Remittance Agreement"), between the Trustee, the Servicer, the
Depositor, the RMF Trustee and the RMF Servicer.
The Servicer's or Special Servicer's liability for actions and omissions in
its capacity as Servicer or Special Servicer, as the case may be, hereunder is
limited as provided herein (including, without limitation, pursuant to Section
6.03 hereof). To the extent consistent with the foregoing and subject to any
express limitations set forth in this Agreement, the Servicer and Special
Servicer shall seek to maximize the timely and complete recovery of principal
and interest on the Notes; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Servicer or Special
Servicer of the collectability of the Mortgage Loans. Subject only to the
Servicing Standard, the Servicer and Special Servicer shall have full power and
authority, acting alone or through sub-servicers (subject to paragraph (c) of
this Section 3.01 and to Section 3.02), to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
consistent with the Servicing Standard and, in its reasonable judgment, in the
best interests of the Certificateholders, including, without limitation, with
respect to each Mortgage Loan, to prepare, execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien on each Mortgaged Property and related collateral; (ii)
subject to Sections 3.09, 3.10 and 3.30, 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 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, and (iii) such agreement shall be consistent with the
Servicing Standard. 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; provided that no
such termination or assumption shall affect or impair the Retained Servicing
Fee, if any, to which any subservicer may be entitled.
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 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.
In the event that the Trustee, the Servicer or any successor Servicer or
Special Servicer, as applicable, assumes the servicing obligations of the
Servicer or the Special Servicer, as applicable, upon request of the Trustee,
the Servicer or such successor Servicer or Special Servicer, as applicable, the
Servicer or Special Servicer shall at its own expense (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 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 except with respect to the
direct servicing and administering of the Mortgage Loan known as the Clipper
Loan Participations (Loan Numbers CLP001, CLP002, CLP003, CLP004, CLP005 and
CLP006) in accordance with the provisions of this Agreement without diminution
of such obligation or liability by virtue of such sub-servicing agreements or
arrangements or by virtue of indemnification from the Depositor or any other
Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Servicer or Special
Servicer, as applicable, alone were servicing and administering the Mortgage
Loans. Each of the Servicer and the Special Servicer shall be entitled to enter
into an agreement with any sub-servicer providing for indemnification of the
Servicer or Special Servicer, as applicable, by such sub-servicer, and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification, but no such agreement for indemnification shall be deemed to
limit or modify this Agreement.
SECTION 3.03. Collection of Certain Mortgage Loan Payments.
(a) The Servicer or the Special Servicer (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 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.
Notwithstanding the above, the Mortgage Loans known as the Clipper Loan
Participations (Loan Numbers CLP001, CLP002, CLP003, CLP004, CLP005 and CLP006)
shall be serviced by the Clipper Servicer pursuant to the Clipper Pooling and
Servicing Agreement and remittances will be made to the Servicer pursuant to the
Clipper Remittance Agreement.
(b) In the event that the Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Excess
Interest in any Collection Period, the Servicer or Special Servicer, as
applicable, will promptly notify the Trustee.
SECTION 3.04. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage Loan),
the Servicer shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of taxes, assessments and other similar
items that are or may become a lien on the related Mortgaged Property and the
status of insurance premiums payable with respect thereto. From time to time,
the Servicer shall (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills with respect to
such Mortgaged Properties prior to the applicable penalty or termination date,
in each case employing for such purpose Escrow Payments as allowed under the
terms of the related Mortgage Loan. If a Borrower fails to make any such payment
on a timely basis or collections from the Borrower are insufficient to pay any
such item before the applicable penalty or termination date, 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, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, 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;
(v) to pay from time to time to the related Borrower any interest or
investment income earned on funds deposited in the Escrow
Account if such income is required to be paid to the related
Borrower under law or by the terms of the Mortgage Loan, or
otherwise to the Servicer; and
(vi) to remove any funds deposited in an Escrow Account that were not
required to be deposited therein.
SECTION 3.05. Collection Account; Distribution Account; 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 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) and all Net Insurance Proceeds and Net
Liquidation Proceeds;
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses, to the extent not permitted to
be retained by the Servicer 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, including, without limitation, proceeds of any
repurchase of a Mortgage Loan pursuant to Sections 2.03(d) and
(e) hereof; and
(vii) any Servicer Prepayment Interest Shortfalls.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges (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. 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 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
Distribution Account and deposit in the Upper-Tier Distribution Account on or
before such date the Lower-Tier Distribution Amount and Prepayment Premiums to
be distributed in respect of the Lower-Tier Regular Interests pursuant to
Section 4.01(a)(i) and Section 4.01(c)(ii) hereof on such date.
(d) 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-1 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).
(e) 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.
(f) Funds in the Collection Account, the 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.
SECTION 3.06. Permitted Withdrawals from the Collection Account.
The Servicer may make withdrawals from the Collection Account only as
described below (the order set forth below not constituting an order of priority
for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be deposited in the Distribution
Account, the Default Interest Distribution Account and the
Excess Interest Distribution Account, pursuant to Sections
4.06, 3.05(c), 3.05(d), 3.05(e) and 3.27(a);
(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 Work-out
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 in accordance with Section 3.07(b)
any interest or investment income earned on funds deposited in
the Collection Account) (the Servicer may rely on a
certification of the Special Servicer as to amounts of Special
Servicing Compensation to be withdrawn pursuant to this clause
(iv));
(v) to remit to the Distribution Account, an amount equal to the
Trustee Fee 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 related
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, 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 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)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent
or the Special Servicer therefrom, promptly upon receipt of a certificate of a
Responsible Officer of the Trustee or the Fiscal Agent or a certificate of a
Servicing Officer, as applicable, describing the item and amount to which such
Person is entitled. The Servicer may rely conclusively on any such certificate
and shall have no duty to recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Healthcare Adviser, 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, Healthcare Adviser Fees, Special Servicing
Compensation, Advances, Advance Interest Amounts, their respective expenses
hereunder to the extent such fees and expenses are to be reimbursed or paid from
amounts on deposit in the Collection Account pursuant to this Agreement (and to
have such amounts paid directly to third party contractors for any invoices
approved by the Trustee, the Servicer or the Special Servicer, as applicable)
and any federal, state or local taxes imposed on either the Upper-Tier REMIC 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, 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 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 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 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 was 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 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 Officer's Certificate to the Trustee and each
Rating Agency which details the steps that were taken in seeking such insurance
and the factors which led to the determination that such insurance was not so
available. Costs to the Servicer, 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.
Any determination made by the Servicer or Special Servicer that insurance
is not commercially reasonably available 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.
(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 which would have been covered
by such a policy had it been maintained, immediately deposit into the Collection
Account from its own funds the amount not otherwise payable under the blanket
policy because of such deductible clause to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Mortgage Loan,
or, in the absence of any such deductible limitation, the deductible limitation
which is consistent with the Servicing Standard. In connection with its
activities as Servicer or 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 maintained on the related Mortgaged Property or REO Property a
policy otherwise complying with the provisions of Section 3.08(a), and (ii)
there shall have been one or more losses which would have been covered by such a
policy had it been maintained, immediately deposit into the Collection Account
from its own funds the amount not otherwise payable under such policy because of
such deductible to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard.
(c) The Servicer and the Special Servicer shall maintain a fidelity bond in
the form and amount that would meet the servicing requirements of prudent
institutional commercial mortgage lenders and loan servicers with the Trustee
named as loss payee. The Servicer and the Special Servicer each shall be deemed
to have complied with this provision if one of its respective Affiliates has
such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Servicer and the Special Servicer,
as applicable. In addition, the Servicer and the Special Servicer shall keep in
force during the term of this Agreement a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its obligations to service the Mortgage Loans
hereunder in the form and amount that would meet the servicing requirements of
prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer shall cause each and every
sub-servicer for it to maintain, or cause to be maintained by any agent or
contractor servicing any Mortgage Loan on behalf of such sub-servicer, a
fidelity bond and an errors and omissions insurance policy which satisfy the
requirements for the fidelity bond and the errors and omissions policy to be
maintained by the Servicer 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 to the extent permitted under the terms of the
related Mortgage Loan 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 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) the Servicer or,
with respect to Specially Serviced Mortgage Loans, Special Servicer has received
written confirmation, with respect to Mortgage Loans that represent more than 2%
of the then-current aggregate Stated Principal of the Mortgage Loans from
Moody's and, 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) 2% of the
total aggregate Stated Principal Balances of the Mortgage Loans and (y)
$30,000,000, such written confirmation shall not be required from any of the
Rating Agencies. 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.
(b) If any Mortgage Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any lien or
other encumbrance on the related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the creation of
any such lien or other encumbrance on the related Mortgaged
Property,
then 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) with respect to Mortgage Loans that
represent more than 2% of the then-current aggregate Stated Principal of the
Mortgage Loans, receives prior written confirmation from Moody's and 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.
(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) In the event such Mortgage Loan requires that the Servicer on
behalf of the Trustee purchase the required U.S. government
obligations, 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) In the event that such Mortgage Loan permits the assumption of
the obligations of the related Borrower by a successor
mortgagor, 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,
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 through
defeasance, to the extent not inconsistent with the related
Mortgage Loan, the Servicer shall obtain written confirmation
from each Rating Agency that such defeasance would not, in and
of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates.
(vi) Prior to permitting release of any Mortgaged Property through
defeasance, if the related Mortgage Loan so requires and
provides for the related Borrower to pay the cost thereof, the
Servicer shall require an Opinion of Counsel of the related
Borrower to the effect that such release will not cause either
the Upper-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) Such defeasance shall not occur prior to the second anniversary
of the Startup Day.
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
(except with respect to the Mortgage Loans known as the Clipper Loan
Participations (Loan Numbers CLP001, CLP02, CLP003, CLP004, CLP005 and CLP006)
for which only the Clipper Servicer may commence such proceedings in its
discretion and in accordance with the servicing standards and other terms of the
Clipper Pooling and Servicing Agreement governing), 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
Healthcare Adviser pursuant to Section 3.31(a) before taking any such action
with respect to Healthcare 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 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 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 Loan held in the Trust Fund until such time as the
related REO Property shall be sold by the Trust Fund and shall be reduced only
by collections net of expenses. Consistent with the foregoing, for purposes of
all calculations hereunder, so long as such Mortgage Loan shall be considered to
be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such
Note and, for purposes of determining the Stated Principal
Balance thereof, the related amortization schedule in effect at
the time of any such acquisition of title shall remain in effect;
and
(ii) Subject to Section 1.02(b), Net REO Proceeds received in any
month shall be applied to amounts that would have been payable
under the related Note in accordance with the terms of such Note.
In the absence of such terms, Net REO Proceeds shall be deemed to
have been received first in payment of the accrued interest (not
including Excess Interest) that remained unpaid on the date that
the related REO Property was acquired by the Trust Fund; second
in respect of the delinquent principal installments that remained
unpaid on such date; and thereafter, Net REO Proceeds received in
any month shall be applied to the payment of installments of
principal and accrued interest on such Mortgage Loan deemed to be
due and payable in accordance with the terms of such Note and
such amortization schedule until such principal has been paid in
full and then to Excess Interest and other amounts due under such
Mortgage Loan. If such Net REO Proceeds exceed the Monthly
Payment then payable, the excess shall be treated as a Principal
Prepayment received in respect of such Mortgage Loan.
(e) Notwithstanding any provision herein to the contrary, the Special
Servicer shall not acquire for the benefit of the Trust Fund any personal
property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the
Special Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion
of Counsel (which opinion shall be an expense of the Lower-Tier
REMIC) to the effect that the holding of such personal property
by the Lower-Tier REMIC will not cause the imposition of a tax on
the Lower-Tier REMIC or Upper-Tier REMIC under the REMIC
Provisions or cause the Lower-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 or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-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:
(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. 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 (or from the Collateral Account to the extent Advances
are otherwise reimbursable therefrom pursuant to this Section 3.10).
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Servicer shall 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. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Servicer or Special Servicer and
delivery to the Trustee and the Custodian of a Request for Release, the Trustee
shall promptly cause the Custodian to release the Mortgage File (or any portion
thereof) designated in such Request for Release to the Servicer or Special
Servicer, as applicable. Upon return of the foregoing to the Custodian, or in
the event of a liquidation or conversion of the Mortgage Loan into an REO
Property, 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 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 (except with
respect to that portion comprising of the Retained 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 (and not otherwise payable to the Special Servicer pursuant to Section
3.12(b)), any late payment charges, Assumption Fees, loan modification fees,
extension fees, loan service transaction fees, demand fees, beneficiary
statement charges or similar items (but not including any Prepayment Premiums),
in each case to the extent received and not required to be deposited or retained
in the Collection Account pursuant to Section 3.05; provided, however, that the
Servicer shall not be entitled to apply or retain any amounts as additional
compensation, any late payment charges with respect to any Mortgage Loan with
respect to which a default or event of default thereunder has occurred and is
continuing unless and until such default or event of default has been cured and
all delinquent amounts (including any Default Interest) due with respect to such
Mortgage Loan have been paid. 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 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 Master Servicing Fee 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.
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 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 Assumption Fees, loan service transaction fees, demand fees,
statement charges and other fees relating to any Specially Serviced Mortgage
Loan or with respect to servicing activities performed by the Special Servicer
and, for any modification, extension or other action by the Special Servicer for
which the consent of, or review by, the Servicer is required, one-half of any
modification, extension or other fees payable by the related Borrower in
connection therewith and (ii) any interest or other income earned on deposits in
the REO Accounts.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) 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.
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, any 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-1(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 or the Trustee's good faith business judgment
require the assistance of Independent legal counsel or other consultant to the
Servicer, the Special Servicer or the Trustee, the cost of which would not be an
expense of the Trust Fund hereunder, then the Servicer, the Special Servicer or
the Trustee, as the case may be, shall not be required to take any action in
response to such request or inquiry unless the Borrower or such
Certificateholder or such other Person, as applicable, makes arrangements for
the payment of the Servicer's, the Special Servicer's or the Trustee's expenses
associated with such counsel (including, without limitation, posting an advance
payment for such expenses) satisfactory to the Servicer, the Special Servicer or
the Trustee, as the case may be, in its sole discretion. Unless such
arrangements have been made, the Servicer, the Special Servicer or the Trustee,
as the case may be, shall have no liability to any Person for the failure to
respond to such request or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account Statements.
(a) The Servicer shall deliver to the Trustee, the Healthcare 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 Collection
Period and showing the aggregate amount of deposits into and withdrawals from
the Collection Account of each category of deposit specified in Section 3.05 and
each category of withdrawal specified in Section 3.06 for the related Collection
Period. The Trustee and its agents and attorneys may at any time during normal
business hours, upon reasonable notice, inspect and copy the books, records and
accounts of the Servicer solely relating to the Mortgage Loans and the
performance of its duties hereunder.
(c) Beginning in May 1998, 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 Healthcare 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 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 Healthcare 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 June 30th, beginning in 1998, 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 fiscal 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 Mortgaged Property (other than any such
Mortgaged Property which is REO Property or constitutes security for a Specially
Serviced Mortgage Loan) to update the Operating Statement Analysis report for
such Mortgaged Property, such updates to be completed and copies thereof sent to
the Trustee within thirty days after receipt of the necessary information.
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Servicer the information required pursuant to this Section
3.13(d) with respect to Specially Serviced Mortgage Loans and REO Mortgage Loans
on or before June 10th of each year, commencing on June 10, 1998, 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, 1998, the Servicer shall prepare and deliver to the Trustee,
the Healthcare Adviser (with respect to Healthcare 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 trailing twelve-month
Debt Service Coverage Ratio as of the Cut-off Date or having a current trailing
twelve-month Debt Service Coverage Ratio that is less than 1.00x, (ii) Mortgage
Loans as to which any required inspection of the related Mortgaged Property
conducted by the 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 Healthcare Adviser, the Depositor 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 consent of the Servicer, data files in a form acceptable to the
Servicer): (i) a Delinquent Loan Status Report; (ii) an Historical Loss Estimate
Report; (iii) an Historical Loan Modification Report; (iv) an REO Status Report;
(v) Comparative Financial Status Reports with respect to all Specially Serviced
Mortgage Loans; (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 Healthcare Adviser,
the Depositor or any Rating Agency, to such requesting party, the following
materials, in each case to the extent that such materials or the information on
which they are based have been received by the Special Servicer:
(i) Annually, on or before June 10 of each year, commencing with June
10, 1998, 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 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. In addition, the
Special Servicer shall with respect to any such report after January 1, 1998
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, such updates to be completed and copies thereof sent to the Servicer
within ten days after receipt of the necessary information.
(h) The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by the
Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
The Servicer and the Special Servicer (the "reporting person") each shall
deliver to the Trustee, the Depositor and to the Rating Agencies on or before
March 15 of each year, beginning with March 15, 1999, an Officer's Certificate
stating, as to each signatory thereof, (i) that a review of the activities of
the reporting person during the preceding calendar year (or such shorter period
from the Closing Date to the end of the related calendar year) and of its
performance under this Agreement has been made under such officer's supervision,
(ii) that, to the best of such officer's knowledge, based on such review, the
reporting person has fulfilled 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 or Lower-Tier REMIC as a REMIC from the IRS or any other governmental
agency or body.
SECTION 3.15. Annual Independent Public Accountants' Servicing Report.
On or before March 15 of each year, beginning with March 15, 1999, the
Servicer and the Special Servicer (the "reporting person") each at the reporting
person's expense shall cause a firm of nationally recognized Independent public
accountants (who may also render other services to the reporting person) which
is a member of the American Institute of Certified Public Accountants to furnish
a statement (an "Accountant's Statement") to the Trustee, the Depositor and to
the Rating Agencies, to the effect that such firm has examined certain documents
and records relating to the servicing of the similar mortgage loans under
similar agreements and that, on the basis of such examination conducted
substantially in compliance with generally accepted auditing standards and the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FHLMC, such servicing has been conducted in compliance
with similar agreements except for such significant exceptions or errors in
records that, in the opinion of such firm, generally accepted auditing standards
and the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FHLMC require it to report, in which case
such exceptions and errors shall be so reported. Each reporting person shall
obtain from the related accountants, or shall prepare, an electronic version of
each Accountant's Statement and provide such electronic version to the Trustee
for filing in accordance with the procedures set forth in Section 3.22 hereof.
With respect to any electronic version of an Accountant's Statement prepared by
the reporting person, the reporting person shall receive written confirmation
from the related accountants that such electronic version is a conformed copy of
the original Accountant's Statement.
SECTION 3.16. Access to Certain Documentation.
The Servicer and Special Servicer shall provide to any Certificateholders
that are federally insured financial institutions, the Federal Reserve Board,
the FDIC and the OTS and the supervisory agents and examiners of such boards and
such corporations, and any other governmental or regulatory body to the
jurisdiction of which any Certificateholder is subject, access to the
documentation regarding the Mortgage Loans required by applicable regulations of
the Federal Reserve Board, FDIC, OTS or any such governmental or regulatory
body, such access being afforded 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 Healthcare Adviser
with respect to Healthcare 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 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 Healthcare Adviser with respect to Healthcare Properties
(to the extent provided in Section 3.31) and subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which the
Special Servicer manages and operates similar property owned or managed by the
Special Servicer or any of its Affiliates, all on such terms and for such period
as the Special Servicer deems to be in the best interests of Certificateholders,
and, in connection therewith, the Special Servicer shall agree to the payment of
management fees that are consistent with general market standards. Consistent
with the foregoing, the Special Servicer shall cause or permit to be earned with
respect to such REO Property any "net income from foreclosure property," within
the meaning of Section 860G(c) of the Code, which is subject to tax under the
REMIC Provisions only if it has determined, and has so advised the Trustee in
writing, that the earning of such income on a net after-tax basis could
reasonably be expected to result in a greater recovery on behalf of
Certificateholders than an alternative method of operation or rental of such REO
Property that would not be subject to such a tax. The Special Servicer shall
segregate and hold all revenues received by it with respect to any REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to any REO Property a segregated custodial account (each,
an "REO Account"), each of which shall be an Eligible Account and shall be
entitled "LaSalle National Bank, as Trustee, in trust for Holders of Deutsche
Mortgage & Asset Receiving Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1998-C1, 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 all revenues received by it with respect
to any REO Property (other than Liquidation Proceeds), and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property and for other Property Protection Expenses with respect to
such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO
Property;
(ii) all real estate taxes and assessments in respect of any REO
Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any REO Property;
and
(iv) any taxes imposed on the Upper Tier REMIC or Lower-Tier REMIC in
respect of net income from foreclosure property in accordance
with Section 4.05.
To the extent that such REO Proceeds are insufficient for the purposes set
forth in clauses (i) through (iii) above 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 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 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) With respect to any Specially Serviced Mortgage Loan which the Special
Servicer has determined to sell in accordance with Section 3.10, and with
respect to Healthcare Properties, after consultation with the Healthcare
Adviser, the Special Servicer shall promptly so 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 Officer's 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 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 Officer's 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, 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
three 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 Mortgage Loan or REO property, as the case may be, for purposes of
Section 3.18(d), shall be determined by the Special Servicer, if the highest
bidder is a Person other than an Interested Person, and by the Trustee, if the
highest bidder is an Interested Person; 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 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 and shall be selected 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 (unless, as evidenced by an Opinion of Counsel,
changes in the REMIC Regulations made subsequent to the Startup Day allow a sale
for other consideration).
(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 Certificateholder (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).
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 December 1998 (or at such lesser 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) and (C) if the Mortgage Loan (i)
becomes a Specially Serviced Mortgage Loan, (ii) has a debt service coverage
ratio of less than 1.0 or (iii) is delinquent for 60 days, each related
Mortgaged Property shall be inspected by the Special Servicer as soon as
practicable and thereafter at least every 12 months for so long as such
condition exists. The Servicer or Special Servicer, as applicable, shall send to
the Rating Agencies, (and, in the case of Healthcare Properties, the Healthcare
Adviser) within 20 days of completion, each inspection report.
(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
promptly shall 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 Moody's , unless the Trustee shall have
received prior written confirmation from each Rating Agency that the appointment
of such Custodian would not cause such Rating Agency to withdraw, qualify or
downgrade any of its then-current ratings on the Certificates, and shall be
qualified to do business in the jurisdiction in which it holds any Mortgage
File. Each Custodial Agreement may be amended only as provided in Section 10.07.
Any reasonable compensation paid to the Custodian shall be an unreimbursable
expense of the Trustee. The Trustee shall serve as the initial Custodian. The
Custodian shall maintain a fidelity bond in the form and amount that are
customary for securitizations similar to the securitization evidenced by this
Agreement, with Trustee named as loss payee. The Custodian shall be deemed to
have complied with this provision if one of its respective Affiliates has such
fidelity bond coverage and, by the terms of such fidelity bond, the coverage
afforded thereunder extends to the Custodian. In addition, the Custodian shall
keep in force during the term of this Agreement a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its obligations hereunder in the form and
amount that are customary for securitizations similar to the securitization
evidenced by this Agreement, with the Trustee named as loss payee. All fidelity
bonds and policies of errors and omissions insurance obtained under this Section
3.21 shall be issued by a Qualified Insurer.
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 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 EDGAR
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 March 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 EDGAR 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
1999 and shall fila Form 15 with the Commission no later than January 30, 1999.
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].
(c) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement,
that provides that such information shall be used solely for purposes of
evaluating the investment characteristics of the Certificates and be used in
accordance with applicable law governing securities, be executed to the extent
the Servicer deems such action 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
Healthcare Adviser (only with respect to Healthcare Properties), 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
Healthcare Adviser and the Depositor) for review by the Depositor, the Trustee,
the Rating Agencies, the Underwriters, the Healthcare 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 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 Healthcare 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 statement
or omission or alleged statement or omission therein. None of the Trustee, the
Special Servicer and the Servicer shall have any responsibility or liability
with respect to any Exchange Act Report filed by the Depositor, and each of the
Servicer, the Special Servicer and the Trustee shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to any statement or omission or
alleged statement or omission therein.
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts
and Reserve Accounts.
The Servicer shall administer each Lock-Box Account, Cash Collateral
Account, Escrow Account and Reserve Account in accordance with the related
Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box
Agreement, if any.
SECTION 3.24. Property Advances.
(a) The Servicer or, with respect to Specially Serviced Mortgage Loans, 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 will be
paid, and the circumstances and purpose of such Property Advance, and shall set
forth therein information and instructions for the payment of such Property
Advance, and, on the 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 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 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 have caused 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(a) mutatis mutandis.
SECTION 3.26. Transfer of Servicing Between Servicer and Special Servicer;
Record Keeping; Asset Status Report.
(a) Upon determining that any Mortgage Loan has become a Specially Serviced
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
became a Specially Serviced Mortgage Loan and in any event shall continue to act
as Servicer and administrator of such Mortgage Loan until the Special Servicer
has commenced the servicing of such Mortgage Loan, which shall occur upon the
receipt by the Special Servicer of the information, documents and records
referred to in the preceding sentence. With respect to each Mortgage Loan that
becomes a Specially Serviced Mortgage Loan, the Servicer shall instruct the
related Borrower to continue to remit all payments in respect of such Mortgage
Loan to the Servicer. The Servicer or Special Servicer, as applicable, may agree
that, notwithstanding the preceding sentence, with respect to each Mortgage Loan
that became a Specially Serviced Mortgage Loan, the Servicer shall instruct the
related Borrower to remit all payments in respect of such Mortgage Loan to the
Special Servicer, provided that the payee in respect of such payments shall
remain the Servicer. The Special Servicer shall remit to the Servicer any such
payments received by it pursuant to the preceding sentence within one Business
Day of receipt. The Servicer shall forward any notices it would otherwise send
to the Borrower of a Specially Serviced Mortgage Loan to the Special Servicer
who shall send such notice to the related Borrower.
Upon determining that no event has occurred and is continuing with respect
to a Mortgage Loan that causes such Mortgage Loan to be a Specially Serviced
Mortgage Loan, the Special Servicer shall immediately give notice thereof to the
Servicer, and upon giving such notice, such Mortgage Loan shall cease to be a
Specially Serviced Mortgage Loan in accordance with the first proviso of the
definition of Specially Serviced Mortgage Loan, the Special Servicer's
obligation to service such Mortgage Loan shall terminate and the obligations of
the Servicer to service and administer such Mortgage Loan as a Mortgage Loan
that is not a Specially Serviced Mortgage Loan shall resume. In addition, if the
related Borrower has been instructed, pursuant to the last sentence of the
preceding paragraph, to make payments to the Special Servicer, upon such
determination, the Special Servicer shall instruct the related Borrower to remit
all payments in respect of such Specially Serviced Mortgage Loan directly to the
Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the Special Servicer
shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Servicer 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 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 Healthcare Loan,
the Healthcare 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
Standards, 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;
(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 Standards.
If within 5 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 Mortgage Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report, 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 Healthcare Loan, the
Healthcare 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 15 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 Standards. 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 Fiscal Agent shall send such notice to all
Certificateholders. If the majority of such Certificateholders, as determined by
Voting Rights, fail, within 5 days of the Fiscal Agent's sending such notice, to
reject such Asset Status Report, the 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 3.21(e). The Fiscal Agent shall be entitled to reimbursement from the
Trust Fund for the reasonable expenses of providing such notices.
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 Standards 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 Standards.
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 Standards and to
maintain the REMIC status of each of the Lower-Tier REMIC and the Upper-Tier
REMIC, or (b) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions, or (c) expose the
Servicer, the Special Servicer, the Depositor, any 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 Healthcare Properties, after consultation with the Healthcare
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 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, either 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
Moody's that such consent would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates.
(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(i).
(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 Servicer to continue to require the related
Borrower to maintain earthquake insurance, the Servicer shall require the
related Borrower to maintain such insurance in the amount, in the case of clause
(i), required by the Mortgage Loan and in the amount, in the case of clause
(ii), maintained at origination, in each case, to the extent such amounts are
available at commercially reasonable rates. Any determination by the Servicer
that such insurance is not available at commercially reasonable rates shall be
subject to confirmation by 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.
(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 related 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 Mortgage Loan
Documents, the Servicer agrees that it shall enforce the provisions of the
Mortgage 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 Mortgage Loan Documents.
(u) The Servicer shall convene dial-in conference calls on a quarterly
basis for the purpose of providing investors in the Certificates with an
opportunity to discuss pool and loan performance issues.
SECTION 3.29. [Intentionally Left Blank].
SECTION 3.30. Modification, Waiver, Amendment and Consents.
(a) The Servicer or, with respect to Specially Serviced Mortgage Loans, 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 it is required
to service and administer hereunder, without the consent of the Trustee or,
except as contemplated by clause (ii) below, 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 Servicer or,
with respect to Specially Serviced Mortgage Loans, 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 Servicer or
the Special Servicer's, as applicable, 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 improvement thereon) or any guaranty or other credit enhancement
with respect thereto (other than the substitution of a similar commercially
available credit enhancement contract); the Special Servicer may, however, 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 Servicer or the Special Servicer, as applicable, shall be
accompanied by an Officer's 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 Servicer or the Special Servicer, as applicable, may not
extend the Maturity Date of any Mortgage Loan beyond the date that is two years
prior to the Rated Final Distribution Date;
(iii) neither the Servicer or the Special Servicer, as applicable,
shall 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 1.860G-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 Servicer or the Special Servicer, as
applicable, shall not be liable for judgments as regards decisions made under
this subsection which were made in good faith and, unless it would constitute
bad faith or negligence to do so, the Special Servicer may rely on opinions of
counsel in making such decisions);
(iv) neither the Servicer or the Special Servicer, as applicable,
shall permit any Mortgagor to add or substitute any collateral for an
outstanding Mortgage Loan, which collateral constitutes real property, unless
the Servicer or the Special Servicer, as applicable, 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
Servicer or the Special Servicer, as applicable, 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 Servicer or the Special Servicer, as applicable, 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 Servicer or the
Special Servicer's, as applicable, 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 Servicer or the Special
Servicer's, as applicable, 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 (x) the limitations, conditions and restrictions set forth in
clauses (i) through (v) above shall not apply to any modification of any term of
any Mortgage Loan that either occurs automatically, or results from the exercise
of a unilateral option by the Mortgagor within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), and (y) notwithstanding clauses (i)
through (v) above, the Servicer or the Special Servicer, as applicable, shall
not be required to oppose the confirmation of a plan in any bankruptcy or
similar proceeding involving a Mortgagor if in their reasonable and good faith
judgment such opposition would not ultimately prevent the confirmation of such
plan or one substantially similar. The Servicer or the Special Servicer, as
applicable, 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.
(b) The Servicer or the Special Servicer, as applicable, 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 Servicer or the Special
Servicer, as applicable, and the Servicer or the Special Servicer, as
applicable, 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 Servicer or the Special Servicer, as applicable, shall notify the
Trustee, each other and with respect to Healthcare Loans, the Healthcare
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 Servicer or, with respect to the Specially Serviced Mortgage Loans,
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 Servicer
or, with respect to Specially Serviced Mortgage Loans, 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 Healthcare Adviser; Compensation of Healthcare
Adviser.
(a) The Trustee, the Servicer and the Special Servicer will be required to
deliver to the Healthcare Adviser all reports and other information they receive
with respect to any Healthcare Property and Healthcare Loan. The Healthcare
Adviser will monitor such Healthcare Loans and Healthcare 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 Healthcare
Adviser Standard. The Special Servicer is required to consult with the
Healthcare Adviser with respect to the preparation of each Asset Status Report
pertaining to any Healthcare Loan or Healthcare Property. The Servicer and the
Special Servicer will be restricted from taking any material actions with
respect to Healthcare Loans and the Healthcare Properties without first
providing notice to, and consulting with, the Healthcare Adviser. The Healthcare
Adviser in turn will recommend to the Servicer or Special Servicer, as the case
may be, with notice to the Controlling Class, an action that should be taken
(which recommendation the Servicer or the Special Servicer, as applicable, may
or may not adopt) with respect to such Healthcare Loan or Healthcare Property,
such advice to be given in accordance with the Healthcare Adviser Standard.
(b) All correspondence and communications with the Healthcare Adviser may
be conducted with the officers or employees of the Healthcare Adviser whose
names appear on a list of officers or employees furnished to the Special
Servicer by the Healthcare Adviser, as such list may from time to time be
amended.
(c) As compensation for its activities hereunder, the Healthcare Adviser
shall be entitled with respect to each Healthcare Loan to the Healthcare Adviser
Fee, which is a portion of the Servicing Fee, payable from amounts on deposit in
the Collection Account as set forth in Section 3.06(iv). The Healthcare
Adviser's rights to the Healthcare Adviser Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Healthcare
Adviser's responsibilities and obligations under this Agreement.
SECTION 3.32. Healthcare Adviser; Elections.
(a) On the Closing Date and as otherwise provided herein, 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 entitled to elect, and
shall be deemed to have elected, the Healthcare 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 Healthcare 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 Healthcare Adviser, or (iii) a determination by the Trustee
that the Controlling Class has changed, an election of a successor Healthcare
Adviser shall be held, commencing as soon as practicable thereafter. The
Healthcare 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 Healthcare Adviser.
Notice of any such meeting of such Holders shall be mailed or delivered to each
Holder 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 Healthcare Adviser. At the meeting, each such Holder shall be entitled to
nominate one Person to act as Healthcare Adviser. The Trustee shall cause the
election of the Healthcare 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 Healthcare Adviser. The voting in each
election of the Healthcare 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 (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 Healthcare Adviser. In the event that after the Closing Date a
Healthcare Adviser shall have resigned and a successor Healthcare Adviser shall
not have been elected within 90 days, the Servicer shall appoint a new
Healthcare Adviser.
Upon receipt of notice from either Rating Agency that, unless the
Healthcare Adviser is replaced, the then-current ratings on the Certificates
will be qualified, withdrawn or downgraded the Controlling Class shall appoint a
successor Healthcare Adviser, or, if the Controlling Class fails to appoint such
successor within 90 days, the Servicer shall appoint a successor Healthcare
Adviser, in either case subject to the restrictions set forth herein.
(d) The Healthcare 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 Healthcare Adviser cannot be removed unless a
successor Healthcare Adviser has been appointed.
(e) The Trustee shall act as judge of each election of a Healthcare
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 Healthcare 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 Healthcare Adviser is required to be an entity that regularly
provides consultation and advice with respect to healthcare properties and
healthcare loans similar to the Healthcare Properties and the Healthcare Loans
and is responsible for providing such advice in connection with loans having an
original principal balance in the aggregate in excess of $100,000,000. Prior to
the appointment of any successor Healthcare 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 Healthcare Adviser.
SECTION 3.33. Limitation on Liability of Healthcare Adviser. The Healthcare
Adviser will have no responsibility or liability to the Trust 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 Healthcare 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
Healthcare 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
Healthcare Adviser may have 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 Healthcare
Adviser, agree to take no action against the Healthcare Adviser or any of its
officers, directors, employees, principals or agents as a result of such special
relationship or conflict.
<PAGE>
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 Lower-Tier Remittance Rates on,
each Class of Lower-Tier I Regular Interests shall be derived from the
Certificate Balances and Pass-Through Rates on the Classes of Regular
Certificates in the manner set forth in the following table:
Lower-Tier Initial Lower- Lower-Tier Lower-Tier
Regular Interest Tier Balance Balance (1) Remittance Rate
- ---------------- -------------- ----------- ---------------
Class A-1-L $382.88600000 0.0001% x A-1 6.2200%
Class A-2-L $852.36100000 0.0001% x A-2 6.5380%
Class B-L $108.99200000 0.0001% x B 6.6640%
Class C-L $108.99200000 0.0001% x C 6.8610%
Class D-L $99.90900000 0.0001% x D 7.2310%
Class E-L $27.24800000 0.0001% x E 7.5000%
Class F-L $45.41300000 0.0001% x F 7.5000% (3)
Class G-L $45.41300000 0.0001% x G 7.5000% (3)
Class H-L $18.16500000 0.0001% x H 7.5000% (3)
Class J-L $22.70600000 0.0001% x J 6.2200% (3)
Class K-L $22.70600000 0.0001% x K 6.2200% (3)
Class L-L $40.87200000 0.0001% x L 6.2200% (3)
Class M-L $40.87200000 0.0001% x M 6.2200% (3)
Class LWAC $1,816,539,338 99.9999% x SPB(2) (4)
- ------------------------------
(1) The designations A-1, A-2, B, C, D, E, F, G, H, J, K, L and M 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 E, Class F, Class G, Class H, Class
J, Class K, Class L and Class M Certificates, respectively, as of any
applicable date.
(2) The Class LWAC Interest has a Lower-Tier Balance equal to 99.9999% of the
Stated Principal Balance of the Mortgage Loans immediately following the
preceding Distribution Date or the Cut-off Date in the case of the first
Distribution Date.
(3) Interest will accrue on the Class F-L, Class G-L, Class H-L, Class J-L,
Class K-L, Class L-L and Class M-L Interests at the lesser of the specified
fixed rate or the Weighted Average Net Mortgage Pass-Through Rate.
(4) Interest will accrue on the Class LWAC Interest during each Interest
Accrual Period at 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 Distribution Amount)
in the case of all Classes of Lower-Tier Regular Interests and distributed on
the Lower-Tier Regular Interests as follows:
(1) amounts distributable as interest to the Class A-1 and Class
A-2 Certificates pursuant to Section 4.01(b)(i) and (ii)
shall be allocated 0.0001% to the Related Lower-Tier Regular
Interests and 99.9999% to the Class LWAC Interest;
(2) amounts distributable as principal to the Class A-1 and
Class A-2 Certificates pursuant to Section 4.01(b)(iii),
(iv) or (v) shall be allocated 0.0001% to the Related
Lower-Tier Regular Interests and 99.9999% to the Class LWAC
Interest;
(3) amounts distributable as interest to the Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L and Class M Certificates pursuant to Section
4.01(b)(vi), (vii), (x), (xi), (xiv), (xv), (xviii), (xix),
(xxii), (xxiii), (xxvi), (xxvii), (xxx), (xxxi), (xxxiv),
(xxxv), (xxxviii), (xxxix), (xlii), (xliii), (xlvi) and
(xlvii) shall be allocated 0.0001% to the Related Lower-Tier
Regular Interests and 99.9999% to the Class LWAC Interest;
(4) amounts distributable as principal to the Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L and Class M Certificates pursuant to Section
4.01(b)(viii), (xii), (xvi), (xx), (xxiv), (xxviii),
(xxxii), (xxxvi), (xl), (xliv), and (xlviii) shall be
allocated 0.0001% to the Related Lower-Tier Regular
Interests and 99.9999% to the Class LWAC Interest;
(5) amounts distributable for unreimbursed amounts of Realized
Losses previously allocated to the Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L and Class M Certificates pursuant to Section
4.01(b)(ix), (xiii), (xvii), (xxi), (xxv), (xxix), (xxxiii),
(xxxvii), (xli), (xlv), and (xlix) shall be allocated
0.0001% to the Related Lower-Tier Regular Interests and
99.9999% to the Class LWAC Interest;
(6) amounts distributable as interest to the Class X
Certificates pursuant to Section 4.01(b)(i) or (ii) shall be
allocated 100.0000% to the Class LWAC Interest.
(iii) The amounts distributable pursuant to clauses (i)(1) though (7)
above constitute the "Lower-Tier Distribution Amount." Any amount that remains
in the Distribution Account on each Distribution Date after distribution of the
Lower-Tier Distribution Amount and Prepayment Premiums allocable to the
Lower-Tier Regular Interests pursuant to Section 4.01(c)(ii) shall be
distributed to the Holders of the Class LR Certificates (but only to the extent
of the Available Distribution Amount for such Distribution Date remaining in the
Distribution Account, if any).
(b) On each Distribution Date, amounts distributed on the Lower-Tier
Regular Interests pursuant to Section 4.01(a) shall be deposited in the
Upper-Tier Distribution Account, and Holders of each Class of Certificates
(other than the Class LR Certificates) shall receive distributions from amounts
on deposit in the Upper-Tier Distribution Account in respect of interest and
principal, in the amounts and in the order of priority set forth below:
(i) First, pro rata, in respect of interest, to the Class A-1,
Class A-2 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-1, 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-1
Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution
Amount until the Certificate Balance thereof is reduced to
zero;
(iv) Fourth, 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-1 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;
(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;
(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;
(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;
(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;
(xlvi) Forty-sixth, to the Class M Certificates in respect of
interest, up to an amount equal to an amount equal to the
aggregate Interest Accrual Amount of such Class;
(xlvii) Forty-seventh, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate unpaid
Class Interest Shortfalls previously allocated to such
class;
(xlviii) Forty-eighth, to the Class M 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;
(xlix) Forty-ninth, to the Class M 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
(l) Fiftieth, to the Class R Certificates.
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
Distribution Account in respect of the Lower-Tier Regular Interests pursuant to
Section 4.01(c)(ii), the Paying Agent shall make distributions of any Prepayment
Premiums with respect to any Principal Prepayments received in the related
Collection Period from amounts deposited in the Upper-Tier Distribution Account
pursuant to Section 3.05(c) in the following amounts (as additional payments and
not as payments of interest and principal due thereunder) and order of priority,
with respect to the Certificates of each Class in each case to the extent
remaining amounts of Prepayment Premiums are available therefor:
(I) First, to the Holders of the Class X Certificates and the
Holders of the Class A-1 and Class A-2 Certificates then
entitled to distributions of principal, pro rata, in accordance
with their corresponding respective PV Yield Loss Amount, in an
amount up to the corresponding PV Yield Loss Amount for each
such Class of Certificates;
(II) Second, sequentially, to the Holders of the Class B, Class C,
Class D and Class E Certificates in an amount up to the
corresponding PV Yield Loss Amount for each such Class of
Certificates; and
(III) Third, to the holders of the Class X Certificates any remaining
amount so collected.
Prepayment Premiums will only be distributed on a Distribution Date (i) 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 (ii) 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 in proportion to the principal
distributable thereon in accordance with Section 4.01(a)(ii).
(d) (i) On each Distribution Date, the Net Default Interest distributable
to each Class Q-1 Certificate, as determined pursuant to Section 3.05(d), for
such Distribution Date shall be distributed to the Class Q-1 Certificates from
amounts on deposit in the Default Interest Distribution Account.
(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) 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 M
Class Certificates; second, to the Class L Certificates; third, to the Class K
Certificates; fourth, to the Class J Certificates; fifth, to the Class H
Certificates; sixth, to the Class G Certificates; seventh, to the Class F
Certificates; eighth, to the Class E Certificates; ninth, to the Class D
Certificates; tenth, to the Class C Certificates; eleventh, 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. 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 Related Lower-Tier Regular Interests and the Class LWAC Interest in the same
manner as principal is allocated thereto pursuant to Section 4.01(a)(ii).
(f) All amounts distributable to a Class of Certificates pursuant to this
Section 4.01 on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in each such Class based on their respective Percentage
Interests. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date, by 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) maintained in the Borough of Manhattan 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 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-1, Class Q-2, Class R and Class LR
Certificates shall remain outstanding until there is no other Class of
Certificates 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
4.01(g) shall not have been surrendered for cancellation within six months after
the time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering 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].
(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 Healthcare
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 R 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) as to which foreclosure proceedings have been commenced;
(vii) with respect to any REO Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the preceding calendar
month, the 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 respective 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) [Intentionally Left Blank];
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) the amount of any Appraisal Reduction Amounts allocated during
the related Collection Period on a loan-by-loan basis; the total Appraisal
Reduction Amounts allocated during the related Collection Period; and the
total Appraisal Reduction Amounts as of such Distribution Date on a
loan-by-loan basis; and
(xvi) 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 or Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to the Class R or Class LR
Certificates 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 Healthcare 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 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 1998, 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 Healthcare 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 1998, 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 Healthcare 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 shall deliver a copy of each Operating Statement Analysis
report and Operating Statement Analysis Worksheet that it receives from the
Servicer and Special Servicer to the Depositor, the Healthcare Adviser, each
Underwriter and each Rating Agency promptly after its receipt thereof. Upon
request, the Trustee shall make such reports available to the Certificateholders
and the Special Servicer. Upon request, the Trustee shall also make available
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.
(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 Healthcare Adviser (with respect to
Healthcare Loans and Healthcare Properties), 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.
The Trustee shall provide access to the information in the Distribution
Date Statements referred to in Section 4.02(a) telephonically through the
Trustee's ASAP System or by such other mechanism as the Trustee may have in
place from time to time. Additionally, certain information regarding the
Mortgage Loans will be made accessible at the website maintained by Trustee at
www.lnbabs.com or their electronic bulletin board service at 714-282-3990 or
such other mechanism as the Trustee may have in place from time-to-time and,
after the Certificates have been sold by the Underwriters, at the website
maintained by the Servicer at www.bomcm.com.
(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 and the Lower-Tier
REMIC shall constitute, and that the affairs of each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall be conducted so as to qualify it as, a "real estate
mortgage investment conduit" as defined in, and in accordance with, the REMIC
Provisions, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC and the Lower-Tier REMIC and shall on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC: (i) prepare,
sign and file, or cause to be prepared and filed, all required Tax Returns for
each of the Upper-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC and the Lower-Tier REMIC when
and as required by the REMIC Provisions and other applicable federal, state or
local income tax laws; (ii) make an election, on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC on Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.05(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the Holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-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 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 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 should hold an
equal Percentage Interest in the Class R or Class LR Certificates larger than
that held by any other Holder, the first such Holder to have acquired such Class
R or Class LR Certificates shall be such tax matters person. The Trustee shall
act as attorney-in-fact and agent for the tax matters person of each of the
Upper-Tier REMIC and Lower-Tier REMIC, and each Holder of a Percentage Interest
in the Class R or Class LR Certificates, by acceptance hereof, is deemed to have
consented to the Trustee's appointment in such capacity and agrees to execute
any documents required to give effect thereto, and any fees and expenses
incurred by the Trustee in connection with any audit or administrative or
judicial proceeding shall be paid by the Trust Fund. The Trustee shall not
intentionally take any action or intentionally omit to take any action if, in
taking or omitting to take such action, the Trustee knows that such action or
omission (as the case may be) would cause the termination of the REMIC status of
the Upper-Tier REMIC or the Lower-Tier REMIC or the imposition of tax on the
Upper-Tier REMIC or the Lower-Tier REMIC (other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement).
Notwithstanding any provision of this paragraph to the contrary, the Trustee
shall not be required to take any action that the Trustee in good faith believes
to be inconsistent with any other provision of this Agreement, nor shall the
Trustee be deemed in violation of this paragraph if it takes any action
expressly required or authorized by any other provision of this Agreement, and
the Trustee shall have no responsibility or liability with respect to any act or
omission of the Depositor, the Servicer or the Special Servicer which does not
enable the Trustee to comply with any of clauses (i) through (vi) of the fifth
preceding sentence or which results in any action contemplated by clauses (i) or
(ii) of the next succeeding sentence. In this regard the Trustee shall (i)
exercise reasonable care not to allow the occurrence of any "prohibited
transactions" within the meaning of Code Section 860F(a), unless the party
seeking such action shall have delivered to the Trustee an Opinion of Counsel
(at such party's expense) that such occurrence would not (A) result in a taxable
gain, (B) otherwise subject the Upper-Tier REMIC or Lower-Tier REMIC to tax
(other than a tax at the highest marginal corporate tax rate on net income from
foreclosure property), or (C) cause either the Upper-Tier REMIC or Lower-Tier
REMIC to fail to qualify as a REMIC; and (ii) exercise reasonable care not to
allow the Trust Fund to receive income from the performance of services or from
assets not permitted under the REMIC Provisions to be held by a REMIC (provided,
however, that the receipt of any income expressly permitted or contemplated by
the terms of this Agreement shall not be deemed to violate this clause). None of
the Servicer, the Special Servicer and the Depositor shall be responsible or
liable (except in connection with any act or omission referred to in the two
preceding sentences 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 related Mortgage Loan Seller or the
Depositor pursuant to Article II hereof.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC or
Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(viii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from Available Funds sufficient funds to
pay or provide for the payment of, and to actually pay, such tax as is legally
owed by the Upper-Tier REMIC 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 or 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 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 or the Class LR Certificates as the
case may be, and shall distribute such retained amounts to the Holders of
Regular Certificates or Lower-Tier Regular Interests, as applicable, until they
are fully reimbursed and then to the Holders of the Class R Certificates 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 or Lower-Tier REMIC except to the extent such tax is attributable to a
breach of a representation or warranty of the Servicer, the Special Servicer or
the Trustee or an act or omission of the Servicer, the Special Servicer or the
Trustee in contravention of this Agreement in both cases, provided, further,
that such breach, act or omission could result in liability under Section 6.03,
in the case of the Servicer or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Servicer or the Special Servicer shall not be responsible for Trustee's
breaches, acts or omissions, and the Trustee shall not be responsible for the
breaches, acts or omissions of the Servicer or the Special Servicer.
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan with
respect to any month, (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.
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 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; provided,
however, that with respect to Advances made in connection with the ContiTrade
Loans known as Duke Tower Residential Suites (Loan Number A960018), Alameda
Market Square (Loan Number MP-1041), Wadsworth Market Square (Loan Number
MP-1042), Havana Market Square (Loan Number MP-1043), Leetsdale Market Square
(Loan Number MP-1044), Pecos Market Place (Loan Number MP-1045), Capitol Hiss
Center (Loan Number MP-1046), Southgate Plaza Shopping Center (Loan Number
MP-1047), Jewell Market Square (Loan Number MP 1048), Table Mesa Center (Loan
Number MP-1049), and Gerbes Shopping Center (Loan Number MP-1050), such Advances
shall not accrue interest at the Advance Rate until after the expiration of
their applicable notice periods and grace periods from the related Due Date.
(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 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 and the Default Interest Distribution Account and (ii) 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.
<PAGE>
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 F Certificates, the Class G
Certificates, the Class H Certificates, the Class J Certificates, the Class K
Certificates, the Class L Certificates, the Class M Certificates, the Class Q-1
Certificates, the Class Q-2 Certificates, the Class R Certificates and the Class
LR Certificates.
The Class A-1, Class A-2, Class 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 and
Class Q-2, Class R 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 $1 in excess thereof (or such lesser amount if the Certificate or
Notional Balance, as applicable, is not a multiple of $1). With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (A) set forth on the face thereof or (B) in the
case of any Global Certificate, set forth on a schedule attached thereto or, in
the case of any beneficial interest in a Global Certificate, the amount set
forth on the books and records of the related Participant or Indirect
Participant, as applicable, (ii) expressed in terms of Initial Certificate
Balance or Notional Balance, as applicable, and (iii) be in an authorized
denomination, as set forth below.
Minimum Aggregate Denomination of all
Class Denomination Certificates of Class
- ----- ------------ -----------------------------
A-1 $ 50,000.00 $ 382,886,000
A-2 $ 50,000.00 $ 852,361,000
X(1) $1,000,000.00 $1,816,539,338
B $ 50,000.00 $ 108,992,000
C $ 50,000.00 $ 108,992,000
D $ 50,000.00 $ 99,909,000
E $ 50,000.00 $ 27,248,000
F $ 50,000.00 $ 45,413,000
G $ 50,000.00 $ 45,413,000
H $ 50,000.00 $ 18,165,000
J $ 50,000.00 $ 22,706,000
K $ 50,000.00 $ 22,706,000
L $ 50,000.00 $ 40,782,000
M $ 50,000.00 $ 40,878,155
Each Certificate will share ratably in all rights of the related Class. The
Class Q-1, Class Q-2, Class R 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 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 Trustee 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
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 M, Class Q-1, Class Q-2,
Class R 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-1, Class Q-2 Class R or Class LR Certificates
remain outstanding, neither the Depositor nor the Trustee nor the Certificate
Registrar shall take any action which would cause the Trust Fund to fail to be
subject to Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar form, and
each Certificate shall, upon original issue, be executed and authenticated by
the Trustee or the Authenticating Agent and delivered to the Depositor. All
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee or Authenticating Agent by an authorized officer or signatory.
Certificates bearing the signature of an individual who was at any time the
proper officer or signatory of the Trustee or Authenticating Agent shall bind
the Trustee or Authenticating Agent, notwithstanding that such individual has
ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-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) and (h). 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(i) and 5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.01(h) and 5.02(d), (e),
(f), (g) and (h) and the rules of the Depository; the exchange, transfer and
registration of transfer of Individual Certificates or beneficial interests in
the Private Global Certificates shall be subject to the following restrictions:
(i) Transfers between Holders of Individual Certificates. With respect
to the transfer and registration of transfer of an Individual Certificate
representing an interest in the Class Q-1, Class Q-2, Class R or Class LR
Certificates to a transferee that takes delivery in the form of an
Individual Certificate:
(A) The Certificate Registrar shall register the transfer of an
Individual Certificate if the requested transfer is being made by a
transferee who has provided the Certificate Registrar with an
Investment Representation Letter substantially in the form of Exhibit
D-1 hereto (an "Investment Representation Letter"), to the effect that
the transfer is being made to a Qualified Institutional Buyer in
accordance with Rule 144A;
(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 for any costs incurred by it in
connection with the proposed transfer. In addition, the Certificate
Registrar may, as a condition of the registration of any such transfer,
require the transferor to furnish such other certificates, legal opinions
or other information (at the transferor's expense) as the Certificate
Registrar may reasonably require to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Act and other applicable laws.
(ii) Transfers within the Private Global Certificates. Notwithstanding
any provision to the contrary herein, so long as a Private Global
Certificate remains outstanding and is held by or on behalf of the
Depository, transfers within the Private Global Certificates shall only be
made in accordance with this Section 5.02(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 case 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.
(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 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 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 (1) the Individual Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(a),
(2) written instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Certificate Registrar to credit or cause
to be credited to another specified Agent Member's account a beneficial
interest in such 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, 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 as 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 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 Public Global Certificate pursuant to
Section 5.01) or a beneficial interest in a Private Global Certificate may only
be transferred to Eligible Investors, as described herein. In the event that a
Responsible Officer of the Certificate Registrar becomes aware that such an
Individual Certificate or beneficial interest in a Private Global Certificate is
being held by or for the benefit of a Person who is not an Eligible Investor, or
that such holding is unlawful under the laws of a relevant jurisdiction, then
the Certificate Registrar shall have the right to void such transfer, if
permitted under applicable law, or to require the investor to sell such
Individual Certificate or beneficial interest in a Private Global Certificate to
an Eligible Investor within fourteen days after notice of such determination and
each Certificateholder by its acceptance of a Certificate authorizes the
Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding transfer and
exchange, transfers of the Global Certificates shall be limited to transfers of
such Global Certificates in whole, but not in part, to nominees of the
Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in this Section 5.02 other than for transfers to Institutional Accredited
Investors, as provided herein. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
(i) Subject to Section 5.02(e), transfers of the Class Q-1, Class Q-2,
Class R and Class LR Certificates may be made only in accordance with this
Section 5.02(i). The Certificate Registrar shall register the transfer of a
Class Q-1, Class Q-2, Class R or Class LR Certificate only if (x) the transferor
has advised the Certificate Registrar in writing that such Certificate is being
transferred to a Qualified Institutional Buyer, an Affiliated Person 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 M, Class Q-1, Class Q-2, Class R or Class LR
Certificates under the Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of such
Certificates without registration or qualification. Any Certificateholder
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Servicer, the Trustee and the Certificate Registrar, against
any loss, liability or expense that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(k) No transfer of any Class B, Class C, Class D, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class Q-1, Class Q-2 Class R or Class LR
Certificate (each, a "Restricted Certificate") shall be made to (i) an employee
benefit plan 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 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 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-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. 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.
(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-1 (a "Transferee Affidavit")
of the proposed transferee (A) that such proposed transferee is a Permitted
Transferee and (B) stating that (i) the proposed transferee historically
has paid its debts as they have come due and intends to do so in the
future, (ii) the proposed transferee understands that, as the holder of 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(e) and (y) other than in connection
with the initial issuance of the Class R 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 5 of this Agreement or under applicable law
with respect to any transfer of any Certificate, or any interest therein, other
than to require delivery of the certification(s) and/or opinions of counsel
described in Article 5 applicable with respect to changes in registration of
record ownership of Certificates in the Certificate Register. The Trustee and
the Certificate Registrar shall have no liability for transfers, including
transfers made through the book-entry facilities of the Depository or between or
among Depositor 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 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
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
Moody's, 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.
<PAGE>
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 Healthcare
Adviser nor any of the directors, officers, employees or agents (including
subservicers) of the Depositor or the Servicer or the Special Servicer or the
Healthcare Adviser shall be under any liability to the Trust Fund or the
Certificateholders (and in the case of the Special Servicer, to the Healthcare
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 Servicer or the Special
Servicer or the Healthcare 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 Healthcare Adviser and any member, manager, director, officer,
employee or agent (including subservicers) of the Depositor, the Servicer, the
Special Servicer or the Healthcare Adviser may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any appropriate Person respecting any matters arising hereunder. The Depositor,
the Servicer, the Special Servicer, the Healthcare Adviser and any member,
manager, director, officer, employee or agent (including subservicers) of the
Depositor or the Servicer or the Special Servicer or the Healthcare 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 imposed for a breach of the Servicing Standard)
in the performance of duties hereunder or by reason of reckless disregard of
obligations or duties hereunder, in each case by the Person being indemnified 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 nor the Servicer nor the Special Servicer or the Healthcare 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 or the Servicer or the Special Servicer or the
Healthcare 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 Healthcare 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 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 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; provided, further, that nothing herein shall
restrict or impair the ability of the Servicer to assign its rights to the
Retained Servicing Fee. The Retained Servicing Fee shall be irrevocably and
absolutely assigned to SouthTrust Capital Funding Corporation and its successors
and assigns. 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 provided that it
has received notice from any Rating Agency that if such 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 acting as 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.
Notwithstanding anything else to the contrary herein, no resignation,
termination, removal, merger or assignment of servicing rights or obligations
shall affect, limit or impede payment of the Retained Servicing Fee to the
Servicer or its assigns, such Retained Servicing Fee being non-terminable except
upon termination of the Trust Fund.
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 (or in the case of the Servicer or Special Servicer,
the financial statements of December 31, 1997 if no separate financial
statements have been prepared for the Servicer) 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 seek the approval of the
Certificateholders to such action by delivering to the Trustee a written notice
that (i) states that it is delivered pursuant to this Section 6.06, (ii)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate of the Servicer or
the Special Servicer, and (iii) describes in reasonable detail the action that
the Servicer or the Special Servicer proposes to take. The Trustee, upon receipt
of such notice, shall forward it to the Certificateholders (other than the
Servicer and its Affiliates or the Special Servicer and its Affiliates, as
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) 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.
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Servicer Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to remit to the Collection Account
or any failure by the Servicer to remit to the Trustee for
deposit into the Distribution Account, Upper-Tier Distribution
Account, 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
(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" servicer by each
of the Rating Agencies for mortgage pools similar to the Trust
Funds;
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 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; 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, the Healthcare
Adviser 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 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" special
servicer by each of the Rating Agencies for mortgage pools
similar to the Trust Fund;
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.
Notwithstanding any of the above, with respect to the Mortgage Loans
conveyed to the Depositor by ContiTrade Loans, Banc One Mortgage Capital, LLC
shall continue to service the ContiTrade Loans unless such Event of Default has
occurred with respect to the servicing of any ContiTrade Loan or the Rating
Agencies have confirmed in writing that the retention of Banc One Mortgage
Capital, LLC as subservicer would not, in and of itself, cause the then-current
rating assigned to any Class of Certificates to be qualified, withdrawn or
downgraded.
(c) In the event that the Servicer or the Special Servicer is terminated
pursuant to this Section 7.01, the Trustee (the "Terminating Party") shall, by
notice in writing to the Servicer or the Special Servicer, as the case may be
(the "Terminated Party"), terminate all of its rights and obligations under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
any rights the Terminated Party may have hereunder as a Certificateholder and
any rights or obligations that accrued prior to the date of such termination
(including the right to receive all amounts accrued or owing to it under this
Agreement, plus interest at the Advance Rate on such amounts until received to
the extent such amounts bear interest as provided in this Agreement, with
respect to periods prior to the date of such termination and the right to the
benefits of Section 6.03 notwithstanding any such termination 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, and any REO Account, Lock-Box Account or Cash Collateral
Account thereafter be received with respect to the Mortgage Loans, and shall
promptly provide the Terminating Party or such successor Servicer or successor
Special Servicer (which may include the Trustee), as applicable, all documents
and records reasonably requested by it, such documents and records to be
provided in such form as the Terminating Party or such successor Servicer or
Special Servicer shall reasonably request (including electromagnetic form), to
enable it to assume the Servicer's or Special Servicer's function hereunder. All
reasonable costs and expenses of the Terminating Party 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. Any successor Servicer shall
remit the Retained Servicing Fee to the assignee of such Retained Servicing Fee
on the related Servicer Remittance Date (or the Servicer Remittance Date
immediately following any late receipt or recovery thereof).
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,
subject to any prior assignment of the Retained Servicing Fee. In the event any
Advances made by the Servicer and the Trustee or the Fiscal Agent shall at any
time be outstanding, or any amounts of interest thereon shall be accrued and
unpaid, all amounts available to repay Advances and interest hereunder shall be
applied entirely to the Advances made by the Trustee or the Fiscal Agent (and
the accrued and unpaid interest thereon), until such Advances and interest shall
have been repaid in full. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall, if it is unable to so act, or if the
Holders of Certificates entitled to at least 25% of the aggregate Voting Rights
so request in writing to the Trustee, or if 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 if the Rating Agencies do not provide written confirmation
that the succession of the Trustee, as Servicer or Special Servicer, as
applicable, will not cause a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings assigned to
any Class of Certificates as evidenced in writing by each Rating Agency, as the
successor to the Servicer or Special Servicer, as applicable, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Servicer or Special Servicer hereunder. No appointment of a successor to the
Servicer or Special Servicer hereunder shall be effective until the assumption
by such successor of all the Servicer's or Special Servicer's responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Servicer (or the Special Servicer if the Special Servicer is also the Servicer)
hereunder, unless the Trustee shall be prohibited by law from so acting, the
Trustee shall act in such capacity as herein above provided. Pending the
appointment of a successor to the Special Servicer, unless the Servicer is also
the Special Servicer, the Servicer shall act in such capacity. In connection
with such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree, subject to the continuing right of
the Servicer or its assigns to receive the Retained Servicing Fee; provided,
however, that no such compensation shall be in excess of that permitted the
Terminated Party hereunder (net of any Retained Servicing Fee), 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 shall be deemed to be a waiver of any Servicer Event of Default or Special
Servicer Event of Default, if applicable. The Trustee, the Depositor and the
Certificateholders hereby irrevocably waive any right to counterclaim with
respect to, off-set of or other defense to payment of the Retained Servicing Fee
and no act or omission of the Servicer shall release or impair the right of any
assignee of the Servicer with respect to such Retained Servicing Fee to receive
such Retained Servicing Fee.
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.
<PAGE>
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 be 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 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 or
Responsible Officers, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of
Certificates entitled to greater than 50% of the Percentage
Interests (or such other percentage as is specified herein) of
each affected Class, or 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 Fund), and the
Trustee shall be entitled to be reimbursed therefor from the
Collection Account, unless such legal action arises out of the
negligence or bad faith of the Trustee or any breach of an
obligation, representation, warranty or covenant of the Trustee
contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act,
failure to act or breach of any Person upon the occurrence of
which the Trustee may be required to act, unless a Responsible
Officer of the Trustee obtains actual knowledge of such failure.
The Trustee shall be deemed to have actual knowledge of the
Servicer's or the Special Servicer's failure to provide
scheduled reports, certificates and statements when and as
required to be delivered to the Trustee pursuant to this
Agreement.
None of the provisions contained in this Agreement shall require either the
Trustee, in its capacity as Trustee, or the Fiscal Agent, to expend or risk its
own funds, or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if in
the opinion of the Trustee or the Fiscal Agent, respectively, the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer or the Special
Servicer under this Agreement, except during such time, if any, as the Trustee
shall be the successor to, and be vested with the rights, duties, powers and
privileges of, the Servicer or the Special Servicer in accordance with the terms
of this Agreement. Neither the Trustee nor the Fiscal Agent shall be required to
post any surety or bond of any kind in connection with its performance of its
obligations under this Agreement and neither the Trustee nor the Fiscal Agent
shall be liable for any loss on any investment of funds pursuant to this
Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected
in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties and the
Trustee shall have no responsibility to ascertain or confirm the
genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of
Counsel;
(iii) (A) The Trustee shall be under no obligation to institute,
conduct or defend any litigation hereunder or in relation hereto
at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or
thereby; (B) the right of the Trustee to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the
performance of any such act; and (C) provided, that subject to
the foregoing clause (A), nothing contained herein shall relieve
the Trustee of the obligations, upon the occurrence of an Event
of Default (which has not been cured or waived) of which a
Responsible Officer of the Trustee has actual knowledge, to
exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) Neither the Trustee nor any of its directors, officers,
employees, Affiliates, agents or "control" persons within the
meaning of the Act shall be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by the Trustee to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(v) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing to do so by 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 the Special Servicer,
respectively, and otherwise by the Certificateholders requesting
the investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys but shall not be relieved of the obligations
hereunder.
(b) Following the Start-up Day, the Trustee shall not, except as expressly
required by any provision of this Agreement, accept any contribution of assets
to the Trust Fund 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 either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
either the Upper-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 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, 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.
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
(except with respect to the Retained Servicing Fee).
(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 1.860G-1(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 a REMIC" shall include any fees, expenses
and disbursement of any separate trustee or co-trustee appointed hereunder, only
to the extent such fees, expenses and disbursements were not reasonably
anticipated as of the Closing Date and the losses, liabilities, damages, claims
or expenses (including reasonable attorneys' fees) incurred or advanced by an
Indemnified Party in connection with any litigation arising out of this
Agreement, including, without limitation, under Section 2.03, Section 3.10, the
third paragraph of Section 3.11, Section 4.05 and Section 7.01.
The 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 and/or negligence in the performance of each of its
respective duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder (including in the case of the Servicer, any
agent of the Servicer or 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, 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 Moody's (or at any time when there is no
Fiscal Agent appointed and acting hereunder or any such Fiscal Agent so
appointed has a rating on its long-term unsecured debt that is lower than "AA"
by Fitch and "Aa2" by Moody's (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 Moody's, or meet different standards provided
that each Rating Agency shall have confirmed in writing that such different
standards would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates) and subject
to supervision or examination by federal or state authority and shall not be an
Affiliate of the Servicer (except during any period when the Trustee has assumed
the duties of the Servicer pursuant to Section 7.02); 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. In the event that the place of business from which the
Trustee administers the Trust Fund is a state or local jurisdiction that imposes
a tax on the Trust Fund or the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions) the Trustee shall
elect either to (i) resign immediately in the manner and with the effect
specified in Section 8.07, (ii) pay such tax and continue as Trustee or (iii)
administer the Trust Fund from a state and local jurisdiction that does not
impose such a tax. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Servicer, the
Special Servicer and each Rating Agency. Upon such notice of resignation, the
Fiscal Agent shall also be deemed to have been removed and, accordingly, the
Servicer shall promptly appoint a successor Trustee, the appointment of which
would not, 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, 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 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 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 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).
<PAGE>
ARTICLE IX
TERMINATION
SECTION 9.01. Termination.
(a) The respective obligations and responsibilities of the Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created hereby
with respect to the Certificates (other than the obligation to make certain
payments and to send certain notices to Certificateholders as hereinafter set
forth) shall terminate immediately following the occurrence of the last action
required to be taken by the Trustee pursuant to this Article IX on the
Termination Date; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of twenty-one years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of
the United States to the United Kingdom, living on the date hereof.
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC shall be
terminated and the assets of the Trust Fund shall be sold or otherwise disposed
of in connection therewith, only pursuant to a "plan of complete liquidation"
within the meaning of Code Section 860F(a)(4)(A) providing for the actions
contemplated by the provisions hereof pursuant to which the applicable Notice of
Termination is given and requiring that the Trust Fund, the Upper-Tier REMIC and
the Lower-Tier REMIC shall terminate on a Distribution Date occurring not more
than 90 days following the date of adoption of the plan of complete liquidation.
For purposes of this Section 9.01(b), the Notice of Termination given pursuant
to Section 9.01(c) shall constitute the adoption of the plan of complete
liquidation as of the date such notice is given, which date shall be specified
by the Servicer in the final federal income tax returns of the Upper-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 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
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 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-1 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 the Lower-Tier Regular
Interests notwithstanding that such distribution may be insufficient to
distribute in full the Certificate Balance of each Certificate or Lower-Tier
Regular Interest, together with amounts required to be distributed on such
Distribution Date pursuant to Section 4.01(a), (b), (c) or (d) or (ii) if no
such Classes of Certificates are then outstanding, to the Holders of the Class
LR Certificates of any amount remaining in the Collection Account or the
Distribution Account and to the Holders of the Class R Certificates of any
amount remaining in the Upper-Tier Distribution Account, in either 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;
(ii) specify the amount of any such final distribution, if known; and
(iii) state that the final distribution to Certificateholders will be
made only upon presentation and surrender of Certificates at the
office of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any such amounts transferred to
the Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
SECTION 10.02. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Mortgage Loan, unless such Holder previously shall have given to the
Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates of any Class shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Notices.
All demands, notices and communications hereunder shall be in writing,
shall be deemed to have been given upon receipt (except that notices to Holders
of Class M, Class Q-1, Class Q-2, Class R and Class LR Certificates or Holders
of any Class of Certificates no longer held through a Depository and instead
held in registered, definitive form shall be deemed to have been given upon
being sent by first class mail, postage prepaid or by overnight courier) as
follows:
If to the Trustee, to:
LaSalle National Bank
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services Group, DMARC 1998-C1
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
135 South LaSalle Street
Suite 1625
Chicago, IL 60674-4107
Attention: Asset-Backed Securities
Trust Services Group, DMARC 1998-C1
If to the Depositor, to:
Deutsche Mortgage & Asset Receiving Corporation
One International Place, Room 520
Boston, Massachusetts 02110
Attention: R. Douglas Donaldson
With a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Anna H. Glick
If to the Servicer, to:
Banc One Mortgage Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75021
Attention: Edgar L. Smith, II
With a copy to:
Banc One Mortgage Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75021
Attention: Grace E. Holst
If to the Special Servicer, to:
Banc One Mortgage Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75021
Attention: Edgar L. Smith, II
With a copy to:
Banc One Mortgage Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75201
Attention: Paul Smyth
If to the Mortgage Loan Sellers, to:
Boston Capital Mortgage Company Limited Partnership
One Boston Place, Suite 2100
Boston, Massachusetts 02108
Attention: J. Kingsley Greenland
With a copy to:
Peabody & Brown
101 Federal Street
Boston, Massachusetts 02110
Attention: Thomas G. Tumilty
ContiTrade Services L.L.C.
277 Park Avenue,
38th Floor
New York, New York 10972
Attention: Chief Counsel
German American Capital Corporation
31 West 52nd Street
New York, New York 10019
Attention: Joel Horne
Morgan Stanley Mortgage Capital Inc.
1585 Broadway
New York, New York 10036
Attention: Russell Rahbony
Red Mountain Funding, L.L.C.
420 N. 20th Street,
9th Floor
Birmingham, Alabama 35203
Attention: Lawrence D. Katz
With a copy to:
ContiTrade Services L.L.C.
277 Park Avenue,
38th Floor
New York, New York 10972
Attention: Susan Valenti
If to the Underwriters, to:
Deutsche Morgan Grenfell Inc.
Commercial Mortgage-Backed Securities
31 West 52nd Street
New York, NY 10019
Attention:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Attention: Russell Rahbany
Llama Company
One McIlroy Plaza, Suite 302
Fayetteville, AR 72701
Attention: Stephen D. Mansfield
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 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 or the
Distribution Account;
(vii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Servicer;
(viii) each report to Certificateholders described in Section 4.02 and
Section 3.22;
(ix) any change in the lien priority of a Mortgage Loan;
(x) any new lease of an anchor or a termination of an anchor lease
at a retail Mortgaged Property;
(xi) 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; and
(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 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.
One State Street Plaza
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Moody's Investor Services, Inc.
99 Church Street
New York, New York 10007
Attention: Managing Director
Commercial Mortgage-Backed Securities
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:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under this Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interest 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 all Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of all the holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee and
the Fiscal Agent, at any time and from time to time, without the consent of the
Certificateholders, may amend this Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Trust 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
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.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement or any Custodial Agreement unless, if requested
by the Servicer and/or the Trustee, the Servicer and the Trustee shall have
received an Opinion of Counsel, at the expense of the party requesting such
amendment (or, if such amendment is required by either Rating Agency to maintain
the rating issued by it or requested by the Trustee for any purpose described in
clause (i), (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
either the Upper-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 (other than a tax at the highest
marginal corporate tax rate on net income from foreclosure property).
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 or Upper-Tier
Account, Default Interest Distribution Account and 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 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 J.H. 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 willful
misconduct or intentional misrepresentation.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent have caused their names to be signed hereto by
their respective officers thereunto duly authorized all as of the day and year
first above written.
Signed and acknowledged 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: Edgar L. Smith, II
- ------------------------------ ------------------------------
Print Name:
Title: Chief Operating Officer
-----------------------------
Signed and acknowledged BANC ONE MORTGAGE CAPITAL
in the presence of MARKETS, LLC
as Special Servicer
- ------------------------------ By:
Print Name: --------------------------------
Name: Edgar L. Smith, II
- ------------------------------ ------------------------------
Print Name:
Title: Chief Operating Officer
-----------------------------
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:
-----------------------------
<PAGE>
STATE OF ________________)
) ss:
COUNTY OF _______________)
On this _____ day of March, 1998, 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 One International Place,
Boston, Massachusetts; 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: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ________________)
) ss:
COUNTY OF _______________)
On this ____ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of _______, duly commissioned and sworn, personally
appeared Edgar L. Smith, II to me known who, by me duly sworn, did depose and
acknowledge before me and say that he resides at 1717 Main Street, Dallas, Texas
75021; that he is the Chief Operating Officer of Banc One Mortgage Capital
Markets, LLC, the corporation described in and that executed the foregoing
instrument; and that he signed his name thereto under authority of the board of
directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
______________________________
NOTARY PUBLIC in and for the
State of _______________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
______________________________
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ________________)
) ss:
COUNTY OF _______________)
On this ____ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of _______, duly commissioned and sworn, personally
appeared Edgar L. Smith II, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at 1717 Main Street, Dallas,
Texas 75021; that he is the Chief Operating Officer of Banc One Mortgage Capital
Markets, LLC, the corporation described in and that executed the foregoing
instrument; and that he signed his name thereto under authority of the board of
directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
______________________________
NOTARY PUBLIC in and for the
State of _______________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
______________________________
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ________________)
) ss:
COUNTY OF _______________)
On this ____ day of March, 1998, 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:
______________________________
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ________________)
) ss:
COUNTY OF _______________)
On this ____ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of _______, duly commissioned and sworn, personally
appeared _____________, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at
______________________________; that s/he is a _____________ of ABN AMRO BANK
N.V., a nationally chartered bank, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
______________________________
NOTARY PUBLIC in and for the
State of _______________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
______________________________
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
Rider 200
Transfer Procedures.
<PAGE>
As of March 27, 1998
Collegeview Apartments LLC
117 Fulton Avenue
Poughkeepsie, New York 12603
Attn.: Stephen E. Miron
Collegeview Tower Associates, Limited Partnership
141 Fulton Avenue
Poughkeepsie, New York 12603
Attn.: Stephen E. Miron
Re: Nomura Asset Capital Corporation ("Lender")
Collegeview Apartments and Collegeview Tower Financing
Dear Mr. Miron:
In connection with those certain mezzanine loans (collectively, the
"Mezzanine Loan") from Nomura Asset Capital Corporation ("Lender") in the amount
of $100,000.00 to Collegeview Apartments LLC ("Collegeview Apartments") and in
the amount of $400,000.00 to Collegeview Tower Associates, Limited Partnership
("Collegeview Tower", and together with Collegeview Apartment, collectively, the
"Borrower"), each pursuant to the terms of a mezzanine note, which may be
contributed as capital contribution (the "Preferred Equity") by the Lender to
the related Borrower, in the case of Collegeview Apartments in exchange for a
special membership interest in Collegeview Apartments and in the case of
Collegeview Tower in exchange for a special limited partnership interest in
Collegeview Tower (collectively, the "Preferred Equity") and as further
consideration for, the Mezzanine Loan, the Preferred Equity and the Loan (as
defined below), Borrower, Managing Member and General Partner (each as defined
herein) hereby represent, warrant and covenant to Lender as follows:
1. Borrower was provided the option to structure the Preferred Equity as
either (i) a separate mezzanine loan to Borrower made simultaneously
with and subordinate to that certain mortgage loan in the original
principal amount of $6,686,553.00 from Lender to Borrower secured by
an agreement of spreader, consolidation and modification of mortgage
and an assignment of leases and rents agreement from Borrower to
Lender dated as of the date hereof (the "Loan") encumbering the
Collegeview Apartments and the Collegeview Tower, 117 and 141 Fulton
Avenue, Poughkeepsie, New York (the "Premises"), which subordinate
loan would be convertible into an equity ownership interest in
Borrower at a later date (the "Convertible Mezzanine Debt Option"), or
(ii) a capital contribution made directly to Borrower simultaneously
with the closing of the Loan in exchange for a special membership
interest or a special limited partnership interest, as the case may
be, in the Borrower (the "Straight Preferred Equity Option");
2. Each of Collegeview Apartments, Inc., as managing member of Collegeview
Apartments LLC ("Managing Member"), and Collegeview Tower Corp. as
general partner of Collegeview Tower ("General Partner"), has consulted
with its own independent accounting, legal and tax counsel with respect
to the financial, legal and tax implications of either structure;
3. After seeking its own advice and counsel, Borrower has elected to
proceed with Preferred Equity under the Convertible Mezzanine Debt
Option;
4. Borrower, Managing Member and General Partner hereby acknowledge and
agree that Lender or any affiliate of Lender has not given any advice
or otherwise acted as an advisor to Borrower, Managing Member or
General Partner in any capacity in connection with the Loan, the
Mezzanine Loan, the Preferred Equity or in determining the structure
thereof;
5. Borrower, Managing Member and General Partner each acknowledge and
agree that Lender or any affiliate of Lender shall have no liability
for any adverse tax consequences to Borrower, Managing Member and
General Partner resulting from the structure or consummation of the
Loan, the Mezzanine Loan or the Preferred Equity and Borrower,
Managing Member and General Partner, jointly and severally, each
hereby agree to indemnify and hold harmless Lender, and any affiliate
of Lender for any claims, actions, costs, expenses or fees of any
nature incurred in connection with any claim, action or dispute by or
with Borrower, Managing Member or General Partner as a result of
NAAC's investment in Borrower, or Borrower's election to proceed with
the Convertible Mezzanine Debt Option.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
<PAGE>
Please evidence your agreement herewith by executing the enclosed copy of
this letter and returning the original to my attention at your earliest
convenience.
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation
By:
------------------------------
Name:
Title:
Acknowledged and Agreed:
COLLEGEVIEW APARTMENTS LLC
By: COLLEGEVIEW APARTMENTS, INC.,
its Managing Member
By:
------------------------------
Name: Stephen E. Miron
Title: President
COLLEGEVIEW TOWER ASSOCIATES LIMITED PARTNERSHIP
By: COLLEGEVIEW TOWER CORP.,
its General Partner
By:
------------------------------
Name: Stephen E. Miron
Title: President
<PAGE>
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS A-1
Class A-1 Pass-Through Rate: 6.2200 %
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1 Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AB 0 ISIN: US 251562AB06
Common Code: 8599211 Initial Certificate
Balance of this Certificate:
$
No.: A-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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
A-1 Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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" 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, 1998 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 1998, 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(f) 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). 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 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 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.
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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1 Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto__________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1
Certificate of the entire Percentage Interest represented by the within Class
A-1 Certificates to the above-named Assignee(s) and to deliver such Class A-1
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ______________________________________
Signature by or on behalf of
Assignor(s)
______________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________for
the account of _____________________________________________________________
account number _______________________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-2
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS A-2
Class A-2 Pass-Through Rate: 6.5380 %
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-2 Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AC 8 ISIN: US 251562AC88
Common Code: 8599238 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
A-2 Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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" 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, 1998 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 1998, 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(f) 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). 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 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 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.
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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto__________________________________________________
_______________________________________________________________________________.
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2
Certificate of the entire Percentage Interest represented by the within Class
A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ _______________________________________
Signature by or on behalf of
Assignor(s)
_______________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-3
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 30, 1998, AT AN ISSUE PRICE OF 7.048009% 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 4.032126%; (II) THE ANNUAL YIELD TO MATURITY OF
THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.30%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 30, 1998 TO
APRIL 15, 1998) AS A PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY .027256%.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, 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, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class X Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AA 2 ISIN: US 251562AA23
Common Code: 8599203 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 M,
Class Q-1, Class Q-2E, Class R and Class LR Certificates (together with the X
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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 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 1998 (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" 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, 1998 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 1998, 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(f) 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 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
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 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 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class 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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class X Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X
Certificate of the entire Percentage Interest represented by the within Class X
Certificates to the above-named Assignee(s) and to deliver such Class X
Certificate to the following address: __________________________________________
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ _______________________________________
Signature by or on behalf of
Assignor(s)
_______________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-4
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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS B
Class B Pass-Through Rate: 6.6640%
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AD 6 ISIN: US 251562AD61
Common Code: 8599246 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 A-1, Class A-2, Class X, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
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, 1998 (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.
<PAGE>
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, 1998 (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" 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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class 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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B
Certificate of the entire Percentage Interest represented by the within Class B
Certificates to the above-named Assignee(s) and to deliver such Class B
Certificate to the following address: __________________________________________
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ _____________________________________
Signature by or on behalf of
Assignor(s)
_____________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-5
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), AN Y 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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS C
Class C Pass-Through Rate: 6.8610%
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class C Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AE 4 ISIN: US 251562AE45
Common Code: 8599254 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
C Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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" 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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class 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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class C Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class C
Certificate of the entire Percentage Interest represented by the within Class B
Certificates to the above-named Assignee(s) and to deliver such Class C
Certificate to the following address: __________________________________________
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ___________________________________
Signature by or on behalf of
Assignor(s)
___________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-6
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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS D
Class D Pass-Through Rate: 7.2310 %
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class D Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AF 1 ISIN: US 251562AF10
Common Code: 8599262 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
D Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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" 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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class 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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class D Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class D
Certificate of the entire Percentage Interest represented by the within Class B
Certificates to the above-named Assignee(s) and to deliver such Class D
Certificate to the following address: __________________________________________
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ____________________________________
Signature by or on behalf of
Assignor(s)
____________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-7
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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS E
Class E Pass-Through Rate: A per annum rate equal to the lesser of 7.500 % and
the Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class E Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AG 9 ISIN: US 251562AG92
Common Code: 8599289 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
E Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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" 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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class 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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class E Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class E
Certificate of the entire Percentage Interest represented by the within Class E
Certificates to the above-named Assignee(s) and to deliver such Class E
Certificate to the following address: __________________________________________
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ____________________________________
Signature by or on behalf of
Assignor(s)
____________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-8
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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
THIS CERTIFICATE IS ISSUED ON MARCH 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 93.99453%, 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 6.317966%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.24%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (MARCH 30, 1998 TO APRIL 15, 1998) AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.009642%.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS F
Class F Pass-Through Rate: A per annum rate equal to the lesser of 7.5000% and
the Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class F Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AH 7 ISIN: USU08525AA26
Common Code: 8606889 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
F Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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" 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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class 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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto-----------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class F Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class F
Certificate of the entire Percentage Interest represented by the within Class F
Certificates to the above-named Assignee(s) and to deliver such Class F
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: ---------------- ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:----------------------------------------------------------------
- -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- -----------------------------------------------------------------------------for
the account of -------------------------------------------------------------
account number ------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: -----------------------------------------
----------------------------------------
[Please print or type name(s)]
----------------------------------------
Title
----------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-9
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 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 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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
THIS CERTIFICATE IS ISSUED ON MARCH 30, 1998, AND BASED ON ITS ISSUE
PRICE OF 91.664532%, 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 8.647968%;
(II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.53%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (MARCH 30, 1998 TO APRIL 15, 1998) AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.012711%.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS G
Class G Pass-Through Rate: A per annum rate equal to the lesser of 7.5000% and
the Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class G Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AJ 3 ISIN: USU08525AB09
Common Code: 8606919 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
G Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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, 1998 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 1998, 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(f) 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.
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 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 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 either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class G Certificate to
be duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto--------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class G Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class G
Certificate of the entire Percentage Interest represented by the within Class G
Certificates to the above-named Assignee(s) and to deliver such Class G
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: ----------- -------------------------------
Signature by or on behalf of
Assignor(s)
-------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:-----------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- -----------------------------------------------------------------------------for
the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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 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 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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
THIS CERTIFICATE IS ISSUED ON MARCH 30, 1998, AND BASED ON ITS ISSUE PRICE OF
89.414695%, 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 10.897805%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.82%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (MARCH 30, 1998 TO APRIL 15, 1998) AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.015492%.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS H
Class H Pass-Through Rate: A per annum rate equal to the lesser of 7.5000% and
the Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class H Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AK 0 ISIN: USU08525AC81
Common Code: 8606927 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
H Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class H Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto--------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class H Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class H
Certificate of the entire Percentage Interest represented by the within Class H
Certificates to the above-named Assignee(s) and to deliver such Class H
Certificate to the following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Date: ----------- ---------------------------------
Signature by or on behalf of
Assignor(s)
---------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ---------------------------------------------------------------------------.
.
Distributions, if be made by wire transfer in immediately available funds to
- -----------------------------------------------------------------------------for
the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ----------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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 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 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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
THIS CERTIFICATE IS ISSUED ON MARCH 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 74.00034%, 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 26.258776%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 9.54%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (MARCH 30, 1998 TO APRIL 15, 1998) AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.034482%.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS J
Class J Pass-Through Rate: A per annum rate equal to the lesser of 6.2200% and
the Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class J Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AL 8 ISIN: USU08525AD64
Common Code: 8606943 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
J Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class J Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto--------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class J Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class J
Certificate of the entire Percentage Interest represented by the within Class J
Certificates to the above-named Assignee(s) and to deliver such Class J
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: ----------- -------------------------------------
Signature by or on behalf of
Assignor(s)
-------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- -----------------------------------------------------------------------------for
the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ----------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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 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 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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
THIS CERTIFICATE IS ISSUED ON MARCH 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 73.597931%, 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 26.661236%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 9.59%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (MARCH 30, 1998 TO APRIL 15, 1998) AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.034401%.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS K
Class K Pass-Through Rate: A per annum rate equal to the lesser of 6.2200% and
the Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class K Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AM 6 ISIN: USU08525AJ35
Common Code: 8606951 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
K Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class K Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto--------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class K Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class K
Certificate of the entire Percentage Interest represented by the within Class K
Certificates to the above-named Assignee(s) and to deliver such Class K
Certificate to the following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Date: ----------- -----------------------------------
Signature by or on behalf of
Assignor(s)
-----------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:-----------------------------------------------------------------
- -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- -----------------------------------------------------------------------------for
the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ----------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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 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 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 KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
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 IS ISSUED ON MARCH 30, 1998, AND BASED ON ITS
ISSUE PRICE OF 55.87386%, 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 44.385303%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY 12.50%; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 30, 1998 TO APRIL 15, 1998)
AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE EXACT METHOD, IS APPROXIMATELY 0.030982%.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS L
Class L Pass-Through Rate: A per annum rate equal to the lesser of 6.2200% and
the Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class L Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AN 4 ISIN: USU0852AE48
Common Code: 8606978 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 M,
Class Q-1, Class Q-2, Class R and Class LR Certificates (together with the Class
L Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class L Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class L Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class L
Certificate of the entire Percentage Interest represented by the within Class L
Certificates to the above-named Assignee(s) and to deliver such Class L
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ________________________________________
Signature by or on behalf of
Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- ---------------------------------------------------------------------------- for
the account of -------------------------------------------------------------
account number------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: -----------------------------------------
----------------------------------------
[Please print or type name(s)]
----------------------------------------
Title
----------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-14
FORM OF CLASS M 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 M CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY 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.
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 IS ISSUED ON MARCH 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 40.76216%, 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 59.497012%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 16.19%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (MARCH 30, 1998 TO APRIL 15, 1998) AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.014950%.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS M
Class M Pass-Through Rate: A per annum rate equal to the lesser of 6.2200% and
the Weighted Average Net Mortgage Pass-Through Rate.
First Distribution Date: Cut-off Date: March 1, 1998
April 15, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class M Certificates: June 15, 2031
$ 1,816,539,338.00
CUSIP: 251562 AP 9 ISIN: USU08525AF13
Common Code: 8606986 Initial Certificate
Balance of this Certificate:
$
No.: M
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 M Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily 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 Q-2, Class R and Class LR Certificates (together with the Class
M Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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.
<PAGE>
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, 1998 (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 M
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums, as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class M Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date, 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, 1998 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 1998, 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(f) 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.
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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class M Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely
as Trustee
By:---------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class M Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:---------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class M Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class M
Certificate of the entire Percentage Interest represented by the within Class M
Certificates to the above-named Assignee(s) and to deliver such Class M
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: ----------- -----------------------
Signature by or on
behalf of
Assignor(s)
-----------------------
Taxpayer Identification
Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- ---------------------------------------------------------------------------- for
the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ---------------------------------------
---------------------------------------
[Please print or type name(s)]
---------------------------------------
Title
---------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-15
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 KEOGH 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 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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, 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 M, Class Q-2, Class R and Class LR Certificates (together with the Class
Q-1 Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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 ContiTrade Services L.L.C., German American Capital
Corporation, Morgan Stanley Mortgage Capital Inc., Red Mountain Funding, L.L.C.
and Boston Capital Mortgage Company Limited Partnership Corporation 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 Business Day immediately following such
day, commencing in April, 1998 (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, 1998, 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(f) 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 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 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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class Q-1 Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class Q-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class Q-1
Certificate of the entire Percentage Interest represented by the within Class
Q-1 Certificates to the above-named Assignee(s) and to deliver such Class Q-1
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ____________________________________
Signature by or on behalf of
Assignor(s)
____________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number _____________________.
This information is provided by __________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By: ________________________________________
_________________________________________
[Please print or type name(s)]
_________________________________________
Title
_________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-16
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 KEOGH 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 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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS Q-2
Percentage Interest: 100%
CUSIP: _______
No.: Q-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 Excess
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 M, Class Q-1, Class R and Class LR Certificates (together with the Class
Q-2 Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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 Excess
Interest collected on the ContiTrade Services L.L.C., German American Capital
Corporation, Morgan Stanley Mortgage Capital Inc., Red Mountain Funding, L.L.C.
and Boston Capital Mortgage Company Limited Partnership Corporation Loans, which
portions of the Trust Fund will be treated as a grantor trust for federal income
tax purposes.
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 1998 (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, 1998, 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(f) 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 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 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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class Q-2 Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class Q-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class Q-2
Certificate of the entire Percentage Interest represented by the within Class
Q-2 Certificates to the above-named Assignee(s) and to deliver such Class Q-2
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ______________________________________________
Signature by or on behalf of Assignor(s)
______________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _________________________________________________________
account number ________________________________________________.
This information is provided by _______________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ______________________________________________
______________________________________________
[Please print or type name(s)]
______________________________________________
Title
______________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-17
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
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE, OR ANY
ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR
LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE
TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED 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.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1, CLASS R
CUSIP: U08525 AG 9
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 M, Class Q-1, Class Q-2, and Class LR Certificates (together with the
Class R Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 1, 1998 (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
1998, 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(f) 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 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 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 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 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
either (a) 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class R Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class R
Certificate of the entire Percentage Interest represented by the within Class R
Certificates to the above-named Assignee(s) and to deliver such Class R
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ______________________________________________
Signature by or on behalf of Assignor(s)
______________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ______________________________________________
______________________________________________
[Please print or type name(s)]
______________________________________________
Title
______________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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 LOWER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE, OR ANY
ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR
LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE
TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED 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.
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.
<PAGE>
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS LR
CUSIP: U08525 AH 7
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
Class LR Certificateholder will be entitled to receive the proceeds of the
remaining assets of the Lower-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 Lower-Tier REMIC or Trust Fund on the Final Scheduled
Distribution Date following the distributions on the Regular Certificates. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class 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, 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, 1998 (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 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 1998, 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 LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to the Pooling and
Servicing Agreement and any proceeds thereof; (vi) any Assignments of Leases,
Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the 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 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 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 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 the Class LR Certificates representing greater than a 50% Percentage Interest
in such Class may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee and Servicer any
time on or after the Early Termination Notice Date defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date specifying the Anticipated Termination Date, 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 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 Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class LR Certificate to be
duly executed.
Dated:
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
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class LR Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class LR
Certificate of the entire Percentage Interest represented by the within Class LR
Certificates to the above-named Assignee(s) and to deliver such Class LR
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: ___________ ______________________________________________
Signature by or on behalf of Assignor(s)
______________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ______________________________________________
______________________________________________
[Please print or type name(s)]
______________________________________________
Title
______________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT B-1
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Original
Loan Loan Principal
Seller Number Address City State Zip Code Balance
- ------ ------ ------- ---- ----- -------- -------
<S> <C> <C> <C> <C> <C> <C>
MS MS1 224 Independence Drive Brookline Massachusetts 02167 63,187,490
GACC TA0289 Various Various Various Various 61,500,000
GACC TA02891 231 North 3rd Street Philadelphia Pennsylvania 19106
GACC TA02892 1025 Clinton Street Philadelphia Pennsylvania 19107
GACC TA02893 924 Spruce Street Philadelphia Pennsylvania 19107
GACC TA02894 1035 Spruce Street Philadelphia Pennsylvania 19107
GACC TA02895 2429 Locust Street Philadelphia Pennsylvania 19103
GACC TA02896 1666 Callowhill Street Philadelphia Pennsylvania 19130
GACC TA02897 300 East 4th Street St. Paul Minnesota 55101
GACC TA02898 117-123 North 15th Street Philadelphia Pennsylvania 19102
GACC TA02899 423 Walnut Street Harrisburg Pennsylvania 17101
GACC TA028910 3514 Lancaster Avenue Philadelphia Pennsylvania 19104
GACC TA028911 317 North Broad Street Philadelphia Pennsylvania 19107
GACC TA028912 250 East 5th Street St. Paul Minnesota 55101
GACC TA028913 155 South Poplar Street Elizabethtown Pennsylvania 17022
GACC TA028914 651 Wells Street Chicago Illinois 60607
GACC TA028915 401 Amberson Avenue Pittsburgh Pennsylvania 15232
GACC TA028916 300 East Evans Street West Chester Pennsylvania 19380
GACC TA028917 201 North Chestnut Street Palmyra Pennsylvania 17078
GACC TA028918 1520 Spruce Street Philadelphia Pennsylvania 19102
GACC TA028919 2027-2029-2031 Arch Street Philadelphia Pennsylvania 19103
GACC TA028920 33 South Letitia Street Philadelphia Pennsylvania 19106
GACC TA028921 106 South Front Street Philadelphia Pennsylvania 19106
GACC GA0178 Various Various Various Various 52,150,000
GACC GA01781 8457 Roswell Road Atlanta Georgia 30350
GACC GA01782 1515 Mt. Zion Road Morrow Georgia 30260
GACC GA01783 5311 Apex Highway Durham North Carolina 27713
GACC GA01784 5502 Chapel Hill Blvd. Chapel Hill North Carolina 27707
GACC GA01785 3472 Hillsborough Road Durham North Carolina 27705
GACC GA01786 4615 West Beryl Road Raleigh North Carolina 27606
GACC GA01787 4141 Snapfinger Woods Drive Atlanta Georgia 30035
GACC GA01788 1010 North Loop 250 West Midland Texas 79703
GACC GA01789 3654 West Pioneer Parkway Arlington Texas 76013
GACC GA017810 7012 Glenwood Avenue Raleigh North Carolina 27612
GACC GA017811 7800 North Broadway Oklahoma City Oklahoma 73116
GACC GA017812 2960 South Cobb Smyra Georgia 30080
GACC GA017813 1440 North Hairston Road Stone Moutain Georgia 30083
GACC GA017814 2115 Silas Creek Parkway Winston-Salem North Carolina 27103
GACC GA017815 1320 Norwood Drive Bedford Texas 76022
GACC GA017816 3751 Longmire Way Atlanta Georgia 30340
GACC GA017817 426 South College Road Wilmington North Carolina 28403
GACC GA017818 3208 East Park Row Arlington Texas 76010
GACC GA017819 5717 Will Ruth Avenue El Paso Texas 79924
GACC GA017820 3125 University Boulevard Winston-Salem North Carolina 27105
GACC GA017821 2000 Country Club Drive Carrolton Texas 75006
GACC GA017822 2306 North Collins Street Arlington Texas 76011
GACC GA017823 914 North Beltline Road Grand Prairie Texas 75050
GACC GA017824 3120 Knickerbocker Road San Angelo Texas 76901
GACC GA017825 2815 White Horse Road Greenville South Carolina 29611
GACC GA017826 3730 West Wenddover Avenue Greensboro North Carolina 27407
GACC GA017827 7469 Tara Boulevard Jonesboro Georgia 30236
GACC GA017828 1311 Northwest Loop 281 Longview Texas 75605
GACC GA017829 6046 Financial Drive Norcross Georgia 30071
GACC GA017830 2826 South Clack Street Abilene Texas 79605
GACC GA017831 2316 Highway 19 North Meridian Mississippi 39307
GACC GA017832 3016 South Cooper Street Arlington Texas 76015
GACC GA017833 1808 Hampton Road Texarkana Texas 75503
GACC GA017834 1604 Camp Lane Albany Georgia 31707
GACC GA017835 3415 Highway 45 North Meridian Mississippi 39301
GACC GA017836 2331 South Collins Arlington Texas 76014
GACC GA017837 5513 East lancaster Fort Worth Texas 76112
GACC GA017838 1303 South Stemmons Lewisville Texas 75067
GACC GA017839 218 Eisenhower Drive Savannah Georgia 31406
GACC GA017840 1412 Poinsett Highway Greenville South Carolina 29609
GACC GA017841 3121 Washington Road Augusta Georgia 30907
GACC GA017842 4155 Milgen Road Columbus Georgia 31907
GACC GA017843 2215 West Southwest Loop 323 Tyler Texas 75701
GACC GA017844 1881 Gordon Highway Augusta Georgia 30904
GACC GA017845 4917 E. California Parkway, Southwest Fort Worth Texas 76119
GACC GA017846 3229 Highway 80 Mesquite Texas 75150
GACC GA017847 6715 Wolflin Road Amarillo Texas 79106
GACC GA017848 4011 Midland Boulevard Fort Smith Arkansas 72904
GACC GA017849 2990 Pio Nono Avenue Macon Georgia 31206
GACC GA017850 831 North Forest Amarillo Texas 79106
GACC GA017851 5604 Tinker Diagonal Midwest City Oklahoma 73110
GACC GA017852 4000 I-40 East Amarillo Texas 79104
GACC GA017853 3194 South Cambell Avenue Springfield Missouri 65807
GACC GA017854 5121 North Street Nacogdoches Texas 75961
GACC GA017855 9303 Abercorn Extension Savannah Georgia 31406
GACC GA017856 2305 East Lohman Avenue Las Cruces New Mexico 88001
GACC GA017857 1005 West Cotton Street Longview Texas 75604
GACC GA017858 818 South Clack Street Abilene Texas 79605
GACC GA017859 1513 Denman Street Lufkin Texas 75901
GACC GA017860 4701 Osborne Drive El Paso Texas 79922
GACC GA017861 3107 South Lake Drive Texarkana Texas 75501
GACC GA017862 3233 Odessa Texas 79761
GACC GA017863 95 Green Street Warner-Robins Georgia 31093
GACC GA017864 5808 Highway 271 South Fort Smith Arkansas 72908
GACC GA017865 1850 North Clack Abilene Texas 79603
GACC GA017866 8400 canyon Drive Amarillo Texas 79109
GACC GA017867 1510 West 7th Street Clovis New Mexico 88101
GACC GA017868 132 Slaton Highway Lubbock Texas 79404
GACC GA0177 3435 Wilshire Boulevard Los Angeles California 90005 30,500,000
MS MS2 3600 West Ridge Rd. Greece New York 14626 30,000,000
GACC GA0084 State Rd #30 & Rafael Cordero Avenue Caguas Puerto Rico 00625 28,000,000
GACC TA0977 110 Fifth Avenue New York New York 10022 23,500,000
MS MS3 3609 Pleasantdale Road Doraville Georgia 30340 23,000,000
GACC TA1578 2219 North Rancho Drive Las Vegas Nevada 89130 22,500,000
Conti ST001 27200 Perdido Beach Blvd. Orange Beach Alabama 36561 22,500,000
Conti MP-1022 Imperial Highway at Kraemer Blvd. Brea California 92821 20,000,000
Conti 9510172 1325 Wilson Boulevard Arlington Virginia 22209 19,500,000
BCMC 2727 35 Cambidge Park Drive Cambridge Massachusetts 02140 19,200,000
Conti 9761-HSP(A) 10 W. Trimble Road San Jose California 95131 18,470,000
Conti 97-27C 1250 Foxdale Loop San Jose California 95122 18,500,000
GACC TA2206 641 Avenue of the Americas New York New York 10011 17,200,000
BCMC 2831 74-110 Commerce Way Woburn Massachusetts 01801 16,950,000
GACC TA1369 162-10 Jamaica Avenue & 163-25Archer Avenue Jamaica New York 11432 16,500,000
BCMC 2638 Various Various Various Various 16,365,000
BCMC 26381 331, 335-363 Bolivar Street Canton Massachusetts 02021
BCMC 26382 333 Bolivar Street Canton Massachusetts 02021
Conti A970027 1801 Valley View Lane Farmers Branch Texas 75234 15,500,000
Conti 9810050 A Consolidation of Nine Car Wash Properties Various Various Various 14,850,000
Conti 9810050A 1214 N. State Road 7 Hollywood Florida 33021
Conti 9810050B 1890 N.W. 40th Avenue Lauderhill Florida 33313
Conti 9810050C 5190 N. Federal Highway Lighthouse Point Florida 33064
Conti 9810050D 339-435 Eastern Avenue Malden Massachusetts 02148
Conti 9810050E 204 Daniel Webster Highway Nashua New Hampshire 03060
Conti 9810050F 5699 Lake Margaret Dr. Orlando Florida 32822
Conti 9810050G 6475 Raleigh Street Orlando Florida 32835
Conti 9810050H 1500 S. Federal Highway Pompano Beach Florida 33062
Conti 9810050I 374 Main Street Reading Massachusetts 01867
Conti 9510228 3400 El Camino Real Palo Alto California 94306 14,000,000
Conti 25012 One Imeson Park Boulevard, Building 100 Jacksonville Florida 32218 13,500,000
Conti MP-1041 12031-12093 West Alameda Parkway Lakewood Colorado 80228 13,380,000
Conti MP-1042 8031 Wadsworth Blvd. Arvada Colorado 80003 13,280,000
Conti 97-60C 432 West Market Street San Antonio Texas 78205 12,750,000
GACC TA2719 1700 Waterford Road Vero Beach Florida 32966 12,750,000
RMF TSAR01 2650 Thousand Oaks Blvd. Memphis Tennessee 38118 12,300,000
RMF VDC001 1088 Laguna Drive Carlsbad California 92008 12,000,000
GACC TA1632 Various Various Various Various 11,635,000
GACC TA16321 14570-14610 Greenfield Detroit Michigan 48227
GACC TA16322 23230 Fenkell Detroit Michigan 48223
GACC TA16323 15097-15101 Greenfield Detroit Michigan 48227
GACC TA16324 14897-14941 Greenfield Detroit Michigan 48227
GACC TA16325 16501-16561 Greenfield Detroit Michigan 48227
GACC TA16326 17500-17550 2nd, 398-420 Whitmore, 387-409 Covington Detroit Michigan 48226
GACC TA16327 300 Whitmore Detroit Michigan 48226
GACC TA16328 653-681-701 Whitmore Detroit Michigan 48226
GACC TA16329 831-841 Merton Detroit Michigan 48226
GACC TA163210 361 Merton Road Detroit Michigan 48226
GACC TA163211 361-381 Covington Detroit Michigan 48226
GACC TA163212 13600, 13620, 13640 LaSalle Detroit Michigan 48238
GACC TA163213 20830 Joy Road Detroit Michigan 48228
GACC TA163214 641-711 Covington Detroit Michigan 48226
GACC TA163215 18637-18719 James Couzens Detroit Michigan 48235
GACC TA163216 1514 Washington Boulevard Detroit Michigan 48226
MS MS4 100 East Imperial Highway Fullerton California 92835 11,450,000
MS MS5 1034-1060 S. Winchester Blvd. San Jose California 95128 11,000,000
MS MS6 1651 Tiburon Boulevard Tiburon California 94920 10,850,000
Conti 9761-HSP(C) 3100 Parkway Blvd. Kissimmee Florida 34747 10,040,000
Conti MP-1013 2455 E. Imperial Highway Brea California 92821 10,000,000
Conti 28001 18450 Showalter Road Hagerstown Maryland 21742 10,000,000
RMF HCC011 Lake Forest Boulevard New Orleans Louisiana 70127 9,920,000
Conti A970044 128 N. Fair Avenue Yakima Washington 98901 9,700,000
Conti 9761-HSP(B) 8737 Baymeadows Road Jacksonville Florida 32256 9,520,000
MS MS7 11850 University Boulevard Orlando Florida 32817 9,300,000
Conti MP-1043 1155 South Havana Street Aurora Colorado 80012 9,160,000
RMF WMAR01 768 Jefferson Avenue Cookeville Tennessee 38501 9,200,000
RMF SCA001 6980 Roswell Road Atlanta Georgia 30328 8,900,000
Conti 9761-HSP(D) 6955 Fort Dent Way Seattle/Tukwila Washington 98188 8,830,000
GACC TA1564 1900-2000 Embarcadero Oakland California 94606 8,800,000
RMF HCC005 210 East 10th Street South Pittsburg Tennessee 37380 8,800,000
Conti MP-1015 2512 - 2642 E. Chapman Ave. Orange California 92869 8,500,000
Conti A970030 555 Quince Orchard Road Gaithersburg Maryland 20878 8,500,000
RMF HCC002 Dovecreast Road Memphis Tennessee 38134 8,400,000
Conti A970009 5770 US Highway 192 Kissimmee Florida 34746 8,375,000
GACC TA1355 5553 Wissahickon Avenue Philidelphia Pennsylvania 19144 8,200,000
Conti 97C-080137 9956 North Kendall Drive Miami Florida 33176 8,200,000
RMF HCC003 5301 Tullis Drive New Orleans Louisiana 70131 8,160,000
BCMC 2307 1400 Worcester Street (Route 9) Natick Massachusetts 01760 8,000,000
Conti 97-L022 1443 Park Avenue, 105, 111, 113 East 106th Street New York New York 10029 8,000,000
BCMC 1006-I Various Various Various Various 7,960,000
BCMC 1006-IA 403-431 Town Center Blvd. Bella Vista Arkansas 72715
BCMC 1006-IB 555 Memorial Dr. Bella Vista Arkansas 72714
BCMC 1006-IC Lancshire Rd. Bella Vista Arkansas 72715
BCMC 1006-ID 301-313 Town Center Blvd. Bella Vista Arkansas 72714
BCMC 1006-IE Bella Vista Way Bella Vista Arkansas 72715
BCMC 1006-IF 2829 Bella Vista Way Bella Vista Arkansas 72715
BCMC 1006-IG 10-44 Sugar Creek Center Bella Vista Arkansas 72715
BCMC 1006-IH 10 Riordan Road Bella Vista Arkansas 72715
BCMC 1006-II 4-27 Cunningham Corner Bella Vista Arkansas 72715
BCMC 1006-IJ 1806 Forest Hills Blvd. Bella Vista Arkansas 72715
MS MS8 2030 Village Drive/2160 Zink Road Fairborn Ohio 45324 7,800,000
Conti 97C-080131 16020 Industrial Drive Gaithersburg Maryland 20877 7,800,000
Conti PMC01005 6000 Plumas Street Reno Nevada 89509 7,800,000
GACC TA2947 2504 Larkin Road Lexington Kentucky 40503 7,750,000
RMF HCC013 208 Duncan Street North Jamestown Tennessee 38556 7,760,000
Conti A970020 Buckeystown Pike Frederick Maryland 21704 7,750,000
Conti 9761-HSP(E) 5820 White Bluff Road Savannah Georgia 31405 7,640,000
RMF LCC001 9494 East Becker Lane Scottsdale Arizona 85260 7,500,000
MS MS9 3900 West Prospect Rd. Fort Lauderdale Florida 33309 7,420,000
MS MS10 10550 State Road 84 Fort Lauderdale Florida 33324 7,300,000
RMF SHA003 1000 Old Brook Road Charlottesville Virginia 22901 7,250,000
GACC TA1402 90 Halls Road (Route 1) Old Lyme
Marketplace Connecticut 06371 7,200,000
Conti 97C-080133 600 West Fulton Street Chicago Illinois 60661 7,200,000
MS MS11 16115 Condit Road Morgan Hill California 95037 7,000,000
Conti NYU108 50 St. Andrews Place Yonkers New York 10705 7,000,000
MS MS12 5601 North State Road 7 Fort Lauderdale Florida 33319 6,940,000
MS MS13 3760 & 3765 Tamarack Lane Santa Clara California 95051 6,700,000
RMF HIFH01 260 Oxmoor Road Homewood Alabama 35209 6,500,000
GACC TA1178 1400 McCorkle Avenue St. Albans West Virginia 25711 6,400,000
RMF SOA001 2035 Idlewood Road Atlanta Georgia 30084 6,200,000
RMF PCAR01 3500 S.W. College Road Ocala Florida 34474 6,000,000
RMF SHA002 1405 Devon Lane Harrisonburg Virginia 22801 6,000,000
MS MS14 3127- 3139 Hacienda Blvd. Hacienda Heights California 90010 6,000,000
Conti 9510148 24275 Jefferson Avenue Murrieta California 92562 6,000,000
Conti A970018 2519-2567 S. Shields St. Fort Collins Colorado 80526 5,950,000
GACC TA1093 369,373,& 379 Washington Ave. & 76,
80, 84 St.James Pl New York New York 11238 5,900,000
BCMC 1004 Various Various Various Various 5,710,000
BCMC 1004A 1394 State Highway 248 Branson Missouri 65616
BCMC 1004B 1440 State Highway 248 Branson Missouri 65616
BCMC 1004C 1494 Highway 248 Branson Missouri 65616
BCMC 1004D 1464 Highway 248 Branson Missouri 65616
BCMC 1004E 1756 Bee Creek Road Branson Missouri 65616
BCMC 1004F 802 South Highway 13 Lexington Missouri 64067
BCMC 1004G 610 North Ridgeview Drive Warrensburg Missouri 64093
BCMC 1004H 2872 South Meadowbrook Springfield Missouri 65807
BCMC 1004I 225 Church Road Branson Missouri 65616
Conti MP-1048 1937 South Wadsworth Blvd. Lakewood Colorado 80227 5,610,000
GACC TA0826 320 West 31st Street New York New York 10001 5,500,000
GACC TA2720 4017 SE Vineyard Road Milwaukie Oregon 97267 5,500,000
MS MS16 2700-3156 S. E. Loop 820 Fort Worth Texas 76140 5,500,000
Conti 9754-KMJ 3555 O'Neil Drive Blackman
Township Michigan 49202 5,500,000
BCMC 2397 482-490 Norristown Road Whitpain
Township Pennsylvania 19422 5,500,000
Conti 97-36C 7301 NW Tiffany Springs Rd. Kansas City Missouri 64153 5,500,000
MS MS17 1700 DeAnza Boulevard San Mateo California 94402 5,400,000
MS MS18 1050 N. Westmoreland Rd. Dallas Texas 75211 5,400,000
Conti MP-1044 890 South Monaco Street Parkway Denver Colorado 80224 5,370,000
MS MS19 100 Dorset St. South Burlington Vermont 05403 5,300,000
Conti 97C-070126 13300 Princeton Avenue Taylor Michigan 48180 5,300,000
Conti 9410235 A Consolidation of Five Self-Storage Properties Various Various Various 5,245,000
Conti 9410235A 11702 Beechnut Street Houston Texas 77072
Conti 9410235B 1920 South FM 2818 Bryan Texas 77807
Conti 9410235C 3412 Garth Road Baytown Texas 77521
Conti 9410235D 10610 Fairmont Parkway La Porte Texas 77571
Conti 9410235E 2150 Wirt Road Houston Texas 77055
GACC TA0696 Various Various Various Various 5,200,000
GACC TA06961 24415 Russell Road Kent Washington 98032
GACC TA06962 24415 Russell Road Kent Washington 98032
GACC TA1197 30-60/68 Whitestone Expressway& 131-23/35 31st Av New York New York 11354 5,200,000
Conti A970025 Includes Four Individual Properties Various Various Various 5,200,000
Conti A970025A 6870 East Genessee Street Dewitt New York 13066
Conti A970025B 574 Columbia Turnpike East Greenbush New York 12061
Conti A970025C 417 Kenwood Avenue Delmar New York 12054
Conti A970025D 2695 West Ridge Rd. Greece New York 14622
MS MS20 236 Shepherd of the Hills Exp. Branson Missouri 65616 5,200,000
MS MS21 100 Ocean View Avenue Pismo Beach California 93449 5,100,000
GACC TA1398 102-01-65 185th Street Hollis New York 11423 5,000,000
Conti 97C090152 2000 Mountain View Drive Colchester Vermont 05446 5,000,000
Conti 9510198SN 4344 W. Indian School Road Phoenix Arizona 85031 5,000,000
Conti NY97003 45 Ewing Place Spring Valley New York 10977 5,000,000
GACC BL9702 121 West Esplanade Avenue Kenner Louisiana 70065 5,000,000
MS MS22 615 Clark Dr Rockford Illinois 61107 4,900,000
Conti 97-H008 930 Mill Hill Terrace Southport Connecticut 06490 4,900,000
Conti A970037 3601 Fremont Avenue Seattle Washington 98103 4,835,000
RMF CLP001 188 Jones Avenue Portsmouth New Hampshire 03801 4,840,000
RMF SPUR01 1105 Parkside Lane Woodstock Georgia 31089 4,800,000
Conti MP-1045 1574 West 84th Ave. Federal Heights Colorado 80221 4,660,000
RMF AVA002 421 Ocala Drive Nashville Tennessee 37211 4,628,000
Conti HCCA1880 3134 NW Cache Road Lawton Oklahoma 73505 4,600,000
MS MS23 4820 Hays Rd Madison Wisconsin 53704 4,600,000
GACC TA1866 25485 Medical Center Drive Murrieta California 92562 4,550,000
Conti A960018 807 West Trinity Ave. Durham North Carolina 27701 4,600,000
Conti 97-L037 2535 Hubbel Ave. Des Moines Iowa 50317 4,500,000
MS MS24 3273 Northwest 37th Street Lauderdale Lakes Florida 33309 4,400,000
GACC TA1809 6100 South Malt Avenue Commerce California 90040 4,390,000
GACC TA1565 1325 North Sierra Bonita Avenue Los Angeles California 90046 4,340,000
RMF HCC009 West Grand Street Springfield Missouri 65802 4,320,000
Conti 9510211SN 23041-23071 Antonio Parkway Rancho Santa
Margarita California 92688 4,317,000
Conti 97C-100155 551-589 N. McLean Blvd., et al Elgin Illinois 60123 4,300,000
Conti A970075 401 Alton Street Alton Illinois 62002 4,300,000
BCMC 2655 3220 South Clack Street Abilene Texas 79606 4,275,000
MS MS25 2645 North Main Place High Point North Carolina 27265 4,250,000
RMF AVA001 329 Murfreesboro Road Nashville Tennessee 37210 4,200,000
Conti 97-42-HBS 3001 Polo Parkway Richmond Virginia 23235 4,165,000
BCMC 2610 3916 Kemp Boulevard Wichita Falls Texas 76308 4,125,000
GACC TA1532 500, 510, 520, 530, 540, 550 E. Gladstone Street Azusa California 91702 4,107,000
RMF HCC015 1831 Sosimo Padilla Boulevard Belen New Mexico 87002 4,016,100
GACC TA1649 1640 Aquarena Springs Drive San Marcos Texas 78666 4,000,000
Conti A970048 1633 Bellevue Avenue Seattle Washington 98122 4,000,000
MS MS26 5026 Dierker Road Columbus Ohio 43202 4,000,000
MS MS27 2840 Ramada Way Green Bay Wisconsin 54304 4,000,000
Conti 9510239 6001-6021 Pacific Boulevard Huntington Park California 90255 4,000,000
Conti 9510164 6041-6081 Pacific Blvd. Huntington Park California 90255 4,000,000
Conti 97C-080018 Comprised of Two Hospitality Properties Various Various Various 3,975,000
Conti 97C-080018A 740 & 750 Crocker Avenue Pacific Grove California 93950
Conti 97C-080018B 133 Asilomar Boulevard Pacific Grove California 93950
GACC TA1942 Various Various Various Various 3,900,000
GACC TA19421 22 IBM Road Poughkeepsie New York 12601
GACC TA19422 1440 Route 9 Wappinger New York 12590
GACC TA1484 275-277 Forest Avenue Paramus New Jersey 07652 3,900,000
Conti NYU107 28 Lamartine Terrace Yonkers New York 10701 3,900,000
RMF CAN003 4400 Gulf Street Groves Texas 77619 3,900,000
BCMC 2600 5500 North Haverhill Road West Palm Beach Florida 33407 3,850,000
BCMC 2639 38-48 Dean Street Norwood Massachusetts 02062 3,835,000
GACC TA0394 301 Blanding Boulevard Orange Park Florida 32073 3,830,000
GACC TA2328 341 South Road Poughkeepsie New York 12601 3,800,000
BCMC 2511 1266 Furnace Brook Parkway Quincy Massachusetts 02169 3,800,000
RMF MSMF01 1011 Stephens St. Smyrna Georgia 30080 3,800,000
RMF CLP004 319 East Dunstable Road Nashua New Hampshire 03602 3,800,000
GACC TA0179 4251 Kipling Street Wheat Ridge Colorado 80033 3,750,000
BCMC 1006-II Various Various Various Various 3,697,000
BCMC 1006-II1 110 - 132 Cordorba Center Drive Hot Springs Arkansas 71909
BCMC 1006-II2 100-120 Ponderosa Lane Hot Springs Arkansas 71909
BCMC 1006-II3 101-110 Catella - 101-121 DeSota Drive Hot Springs Arkansas 71909
BCMC 1006-II4 110 Cooper Circle Hot Springs Arkansas 71909
BCMC 2746 333 South State Street Lake Oswego Oregon 97034 3,690,000
RMF TCAR01 641 Bear Creek Road Tuscaloosa Alabama 35405 3,700,000
GACC TA2073 140 6th Avenue North Nashville Tennessee 37203 3,650,000
RMF CLP005 62 Rochester Hill Road Rochester New Hampshire 03867 3,640,000
MS MS28 1600 West Josephine Lakeland Florida 33803 3,600,000
GACC TA2404 3721, 3722, & 3801 Catalina Street Los Alamitos California 90720 3,600,000
GACC TA1534 4164 - 4242 Peck Road & 11618 - 11639 Basye Street El Monte California 91732 3,600,000
Conti 28002 10726 Tucker Street Beltsville Maryland 20705 3,596,851
RMF CAN006 225 South Main Street Vidor Texas 77662 3,600,000
RMF PVE001 1055 Holcomb Road Atlanta Georgia 30344 3,600,000
BCMC 2594 429 Edwards Access Road Edwards Colorado 81632 3,500,000
GACC TA1618 201 Jay Street West Pottsgrove Pennsylvania 19464 3,500,000
Conti 97C-03121 2515 E. Rosemeade Parkway Carrollton Texas 75007 3,500,000
RMF MTV001 2640 Honolulu Avenue Montrose California 91020 3,500,000
RMF BLR001 Hospital Road Chatsworth Georgia 30705 3,450,000
RMF BLR002 178 West Campbellton Road Fairburn Georgia 30213 3,450,000
MS MS29 32455 W. Eight Mile Rd. Livonia Michigan 48152 3,412,500
RMF CLP002 39 Clipper Drive Wolfeboro New Hampshire 03894 3,440,000
Conti 97-3C 6483 Richmond Road Williamsburg Virginia 23188 3,300,000
RMF HCC008 410 West Crawford Avenue Monterey Tennessee 38574 3,285,900
BCMC 2601 1753, 1755, 1759 Euclid Avenue San Diego California 92105 3,250,000
Conti 26585 1197-1215 East 233rd Street Bronx New York 10466 3,250,000
Conti 97C-090144 4754-70 South Kedzie Avenue, 3201-43 W.47th Place Chicago Illinois 60632 3,250,000
BCMC 2571 162 East Main Street Mount Kisco New York 10549 3,225,000
BCMC 2697 189 Dean Street Norwood Massachusetts 02062 3,200,000
GACC TA1521 2380-2396 Crenshaw Boulevard Torrance California 90501 3,200,000
MS MS31 2110 Rose Street LaCrosse Wisconsin 54603 3,200,000
MS MS30 5601 N. Lovers Lane Rd Milwaukee Wisconsin 53225 3,200,000
GACC TA0542 2400 West Broward Boulevard Ft. Lauderdale Florida 33312 3,140,000
RMF JFFR01 8373 Westheimer Houston Texas 77063 3,150,000
Conti 97-H013 Highway 13 South Lexington Missouri 64067 3,100,000
Conti 9410243 35 South Dove Street Alexandria Virginia 22314 3,100,000
Conti 97C-070125 1601 Marine World Parkway Vallejo California 94589 3,080,000
GACC TA2107 3875 North 44th Street Phoenix Arizona 85018 3,069,000
MS MS32 4820 Massachusetts Boulevard College Park Georgia 30337 3,050,000
RMF YVMF01 SEC N. Frankford Ave. and Ershine St. Lubbock Texas 79416 3,040,000
BCMC 2793 Rt 113 & 309 Souderton Pennsylvania 18964 3,000,000
BCMC 2794 330-344 West Trenton Avenue Morrisville Pennsylvania 19067 3,000,000
GACC TA1012 7 Industrial Way Salem New Hampshire 03079 3,000,000
Conti 25018 720 Carrollwood Village Drive Gretna Louisiana 70056 3,000,000
GACC TA0746 993 South Main Street Cottonwood Arizona 86326 3,000,000
Conti 97C-0999 12300 Inwood Road Dallas Texas 75244 3,000,000
BCMC 2391 253 Williams Street Chelsea Massachusetts 02150 2,950,000
Conti A960040 5979 Buford Highway Doraville Georgia 30340 3,000,000
MS MS33 2727 Godby Road College Park Georgia 30349 2,900,000
Conti 9510192 2920 South Chautauqua Avenue Norman Oklahoma 73072 2,900,000
RMF CLP006 1251 White Mountain Highway North Conway New Hampshire 03860 2,920,000
GACC TA1790 335-37 East 95th Street & 1841-45 First Avenue New York New York 10128 2,800,000
BCMC 2403 300 Third Avenue Waltham Massachusetts 02154 2,800,000
Conti 97-H012 3720 Church Rock Road Gallup New Mexico 87301 2,800,000
Conti A960038 1500 Blondell Avenue Bronx New York 10461 2,800,000
BCMC 1006-IV Various Various Various Various 2,720,000
BCMC 1006-IV1 142 - 144 Chota Road Tellico Village Tennessee 37774
BCMC 1006-IV2 200 Chota Road Tellico Village Tennessee 37774
BCMC 1006-IV3 202 - 228 Chota Road Tellico Village Tennessee 37774
BCMC 1006-IV4 200 Mailaquo Center Tellico Village Tennessee 37774
Conti 9510221SN 91 Veterans Road Winthrop Massachusetts 02152 2,700,000
MS MS34 1285-1295 Broadway Chula Vista California 91911 2,656,000
Conti A970066 1585 Folsom St./329-333 12th St. San Francisco California 94103 2,650,000
Conti 9410239 Consolidation of Two Self-Storage Properties Various Various Various 2,605,000
Conti 9410239A 1709 Gause Blvd. West Slidell Louisiana 70460
Conti 9410239B 2355 East Gause Blvd. Slidell Louisiana 70461
BCMC 2675 115 South Acacia Ave. Solana Beach California 92075 2,600,000
Conti 9510195SN Route 29 Tunkhannock Pennsylvania 18657 2,600,000
GACC TA0809 577 Broadway New York New York 10012 2,600,000
BCMC 2289 52 Litton Avenue Groton Connecticut 06340 2,575,000
GACC TA1745 401-435 North Federal Highway Pompano Beach Florida 33062 2,500,000
RMF DMV001 21202 Pacific Highway South Sea Tac Washington 98198 2,500,000
Conti 97-H025 5601 Southeast 122nd Street Portland Oregon 97238 2,500,000
Conti HCCA2035 900 Friday Road Cocoa Florida 32926 2,460,000
Conti MP-1050 3805 Truman Blvd Jefferson City Missouri 65109 2,410,000
Conti 9410249 5061 Beech Place Temple Hills Maryland 20748 2,400,000
BCMC 2437 260 Second Street Chelsa Massachusetts 02150 2,400,000
Conti 96-L014 25 South Main Street Hellertown Pennsylvania 18055 2,400,000
BCMC 2795 698 North Delsea Drive Glassboro, New Jersey 08028 2,362,500
RMF HLA001 4241 Hendrix Drive Forest Park Georgia 30297 2,350,000
Conti A970063 600-624 Pennsylvania Street Denver Colorado 80203 2,320,000
Conti HCCA1975 7915 U.S. 42 Florence Kentucky 41042 2,300,000
BCMC 2158 6710 West Central Avenue Toledo Ohio 43617 2,296,030
Conti 9410222 13951 Beach Boulevard Jacksonville Florida 32224 2,300,000
Conti 9410227 20001 North 35th Avenue Phoenix Arizona 85027 2,250,000
GACC TA2144 239 Washington Street Jersey City New Jersey 07303 2,230,000
MS MS35 3900 E. 45th Ave. Denver Colorado 80216 2,210,000
Conti MP-1049 3600 Table Mesa Drive Boulder Colorado 80303 2,210,000
Conti 2255-09144CM40 Sitterly Road Half Moon New York 12065 2,205,000
MS MS36 Various Various Various Various 2,200,000
MS MS36A 582 Quaker Highway Uxbridge Massachusetts 01569
MS MS36B 361 Jefferson Boulevard Warwick Rhode Island 02886
Conti 97-L018 9300 East Hampton Drive Capitol Heights Maryland 20743 2,200,000
GACC TA1394 4906 El Camino Real Los Altos California 94022 2,175,000
Conti A960047 1630 & 1640 Coit Road Plano Texas 75075 2,175,000
Conti A960033 3601 W. Commercial Blvd. Ft. Lauderdale Florida 33309 2,180,000
Conti 9610072 South Eisenman Road Boise Idaho 83705 2,150,000
Conti MP-1047 2012 South Ohio Street Salina Kansas 67401 2,130,000
GACC TA1029 92-19 to 92-45 Guy Brewer Blvd.,
a/k/a 163-05 Archer Av Jamaica New York 11433 2,100,000
BCMC 2528 1370 Calle Jules Vista California 92084 2,100,000
MS MS38 33175 State Route 20 Oak Harbor Washington 98277 2,100,000
Conti 9510147 10510-10526 West Pico Blvd Los Angeles California 90064 2,100,000
Conti 90145 7402 Heritage Hill Drive Temple Terrace Florida 33637 2,080,000
BCMC 2516 485 Granite Street Braintree Massachusetts 02184 2,000,000
GACC TA1951 2975 Bowers Avenue Santa Clara California 95051 2,000,000
RMF CAN002 Highway 51 Blacks Hill Drive Gainesville Texas 76240 2,000,000
RMF FRH001 71-44 Yellowstone Boulevard Forest Hills New York 11375 2,000,000
Conti 97-L019 732-736 Vestal Parkway East Vestal New York 13850 2,000,000
RMF BWA001 4501 Sprenkle Lane Richmond Virginia 23228 2,000,000
Conti 9410252 18900 North 107th Avenue Sun City Arizona 85373 2,000,000
Conti 9410209 7250 Bandini Blvd Commerce California 90040 2,000,000
Conti 97-H009 408 Country Club Drive Greenville Alabama 36037 2,000,000
Conti 9510150 2070 N. State Street Greenfield Indiana 46140 1,950,000
Conti 9410241 Consolidation of Two Self-Storage Properties Various Various Various 1,910,000
Conti 9410241A 14500 Chef Menteur Highway New Orleans Louisiana 70129
Conti 9410241B 2500 Archbishop Hannan Blvd. Meraux Louisiana 70075
BCMC 2385 428 Hudson River Road Half Moon New York 12188 1,910,000
BCMC 2157 4400 Heatherdowns Boulevard Toledo Ohio 43617 1,900,000
MS MS39 1400 E. County Line Rd. Littleton Colorado 80126 1,885,000
Conti 9410219 9910 Slaughter Creek Drive Austin Texas 78748 1,875,000
RMF EDFR02 7941 Tara Boulevard Jonesboro Georgia 30274 1,870,000
RMF CLP003 8 Hampton Road Exeter New Hampshire 03833 1,860,000
Conti 9410216 701 Bliss Avenue Pittsburg California 94565 1,825,000
Conti 97C-0128 7413-7437 Southwest Highway Worth Illinois 60482 1,824,000
GACC TA1335 1150 South Highway 395 Hermiston Oregon 97838 1,800,000
MS MS40 3624 W.College Avenue Grand Chute Wisconsin 54914 1,800,000
Conti MP-1046 1155 East 9th Avenue Denver Colorado 80218 1,790,000
Conti 9510181 5065 Hollywood Boulevard Hollywood California 90038 1,775,000
GACC TA2143 82-84 Washington Street Hoboken New Jersey 07030 1,750,000
Conti HCCA1800 1611 Highway 71 West LaGrange Texas 78945 1,760,000
GACC TA1050 392-94 West Broadway New York New York 10012 1,750,000
Conti 9510170 18907-18919 Nordhoff Street Northridge California 91324 1,750,000
GACC TA2477 10415-10497 San Diego Mission Road San Diego California 92108 1,730,000
Conti 9410232 12851 Inkster Rd. Livonia Michigan 48150 1,700,000
Conti 9410251 455 Herman Avenue Watsonville California 95076 1,700,000
Conti A970024 1516-1518 Jarret Place Bronx New York 10461 1,700,000
Conti 1022 5289 Alton Parkway Irvine California 92714 1,660,000
Conti HCCA2049 624 Nampa Blvd. Nampa Idaho 83687 1,650,000
Conti NYU106 170-190 Jericho Turnpike Syosset New York 11791 1,650,000
GACC TA1533 1415 Alamitas Avenue Monrovia California 91016 1,628,000
GACC TA1043 905 Burnside Avenue East Hartford Connecticut 06108 1,600,000
Conti 97-S020 One Elliot Place Fairfield Connecticut 06430 1,600,000
Conti NYU115 301-399 West Broad Street Quakertown Pennsylvania 18951 1,600,000
Conti 97-H006 5890 Southwest 8th Street West Miami Florida 33144 1,580,000
BCMC 1755 3625 & 3665 Ruffin Road San Diego California 92123 1,560,000
Conti 97-S075 135 South State Lindon Utah 84042 1,550,000
Conti HCCA2050 1157 Winnemucca Boulevard Winnemucca Nevada 89446 1,550,000
Conti A970049 First & Cayuga Streets Oswego New York 13126 1,550,000
GACC TA0999 3175 Grand Concourse at 206th Street New York New York 10458 1,530,000
GACC TA1666 400 Park Street Alameda California 94501 1,500,000
MS MS41 400 Cove Terrace Copperas Cove Texas 76522 1,500,000
Conti 9410250 8680 Stonebrook Parkway Frisco Texas 75034 1,500,000
Conti NYU109 Comprised of Three Individual Properties Various Various Various 1,500,000
Conti NYU109A 10 Vermilyea Avenue New York New York 10034
Conti NYU109B 17-19 Vermilyea Avenue New York New York 10034
Conti NYU109C 530 Isham Street New York New York 10034
Conti 9510158 655/661 Keeaumoku Street Honolulu Hawaii 96814 1,500,000
Conti A970023 29900 Hawthorne Blvd. Rolling Hills
Estate California 90274 1,500,000
Conti HCCA2048 572 North Main Street Clearfield Utah 84015 1,400,000
GACC TA1024 340-350 South Federal Highway Deerfield Beach Florida 33441 1,400,000
Conti NYU117 17-25 Kensington Avenue Jersey City New Jersey 07304 1,400,000
Conti 97-L023 2244 South Reynolds Road Toledo Ohio 43614 1,400,000
Conti 2243-09108 33 Sharpe Drive Cranston Rhode Island 02920 1,375,000
Conti 9410217 2925 SE Ferry Slip Road Newport Oregon 97365 1,370,000
Conti 9510149 16723 and 16727 Aldine Westfield Road Houston Texas 77032 1,350,000
Conti HCCA2046 206 SE Delaware Avenue Ankeny Iowa 50021 1,340,000
Conti MM005 4551 Boat Club Road Lake Worth Texas 76135 1,330,000
Conti PMC1003 7986 Haven Avenue Rancho Cucamonga California 91730 1,330,000
Conti 9410233 4303 Highland Road Waterford Michigan 48328 1,300,000
Conti HCCA1925 4353 Northfield Road Warrensville
Heights Ohio 44128 1,300,000
Conti 97-S088 1020 FM 1960 West Houston Texas 77090 1,300,000
Conti 26583 845 Gerard Ave. Bronx New York 10451 1,300,000
Conti MM002 3013 Northridge Street Sherman Texas 75090 1,300,000
Conti 9510205 12301 Norwalk Blvd. Norwalk California 90650 1,280,000
Conti NYU111 39-07 - 39-19 Queens Boulevard Long Island City New York 11104 1,275,000
BCMC 1001 1720-1806Moberly Lane Bentonville Arkansas 72712 1,246,000
Conti 97-L026 1329 Boston Post Road Mamaroneck New York 10538 1,250,000
Conti 9510202 650 Willard Drive Folsom California 95630 1,225,000
Conti MM004 2101 Mustang Road Alvin Texas 77511 1,225,000
BCMC 2658 204 E. Point Lane East Lansing Michigan 48823 1,200,000
BCMC 2785 1486 East Valley Road Montecito California 93108 1,200,000
Conti 9510171 53 Mountain Avenue Mount Kisco New York 10549 1,200,000
Conti NYU113 38-48 & 50 North Main Street South Norwalk Connecticut 06854 1,200,000
Conti 9510190SN 31031 21st Place SW Federal Way Washington 98023 1,200,000
RMF ITUR01 2040 Beaver Ruin Road Norcross Georgia 30093 1,200,000
Conti 97-S067 1211 East Gadsden Street Pensacola Florida 32501 1,175,000
Conti 97-H010 12030 113th Street Youngtown Arizona 85363 1,150,000
Conti A970034 537 Sweeten Creek Industrial Park Asheville North Carolina 28803 1,070,000
Conti 97C-0116 4630 West 53rd Street Chicago Illinois 60632 1,070,000
Conti 28000 7234 Fullerton Road Springfield Virginia 22150 1,067,600
Conti HCCA2047 1715 South Story Street Boone Iowa 50036 1,030,000
Conti 97099964 235 NE Loop 820 Hurst Texas 76053 1,000,000
Conti NYU110 396 Kenmore Avenue Buffalo New York 14223 1,000,000
RMF EDFR01 1733 Powder Springs Road Marietta Georgia 30064 1,000,000
RMF FSUR01 1166 Franklin Road Marietta Georgia 30067 1,000,000
Conti 97-S036 9091-9107 Euclid Ave. Manassas Virginia 20110 975,000
RMF HVFR01 7121 Merrill Road Jacksonville Florida 32277 975,000
Conti 97060017 460 Highway 142 East Covington Georgia 30014 966,000
Conti 97-S039 4805 - 4823 Silver Hill Road Suitland Maryland 20746 960,000
Conti 9610066 999 Balmer Road Porter New York 14174 950,000
Conti NYU114 723 St. Nicholas Avenue New York New York 10031 925,000
Conti 97-S093 21502 Great Mills Road Lexington Park Maryland 20653 850,000
Conti 9410223 6015 South Blackwelder Oklahoma City Oklahoma 73159 850,000
Conti 97-S079 746-748 North 1060 West Orem Utah 84057 830,000
Conti 97-S035 5610-5700 Scoville Street Baileys
Crossroad Virginia 22041 830,000
BCMC 1006-III Various Various Various Various 823,000
BCMC 1006-III1 110 La Plaza West Hot Springs
Village Arkansas 71909
BCMC 1006-III2 140 La Plaza West Hot Springs
Village Arkansas 71909
Conti 97-S038 4907-4939 Suitland Road Suitland Maryland 20746 810,000
Conti PMC01000 7450 W. Bell Road Glendale Arizona 85308 800,000
Conti 26582 3810 Bailey Avenue Bronx New York 10463 800,000
Conti HCCA2045 2207 North Buckeye Avenue Abilene Kansas 67410 770,000
Conti 97-S037 9091-9093 Mathis Avenue Manassas Virginia 20110 770,000
Conti 9410230 1520 West Broadway Road Mesa Arizona 85202 750,000
Conti 9610073 2415 Caroline Street Dickinson Texas 77539 695,000
Conti 97-S051 3600 - 3606 Spring Garden Street Philadelphia Pennsylvania 19104 650,000
Conti 97-S052 4020 Gilbert Ave. Dallas Texas 75219 625,000
Conti 97-S021 4517 E. Independence Blvd. Charlotte North Carolina 28205 615,000
Conti 97-S087 2424 South 260th Street Kent Washington 98032 575,000
Conti 97-S069 5005 Manor Road Austin Texas 78723 574,000
Conti 97-S074 975 South State Road Pleasant Grove Utah 84062 550,000
Conti 97-S056 1717-1745 Commonwealth Houston Texas 77006 540,000
Conti 97-S064 2285 Andrews Avenue Bronx New York 10468 500,000
Conti 97060028 180 South Anita Drive Orange California 92868 500,000
Conti 97-S047 19-21 Norwich Street Worcester Massachusetts 01608 475,000
Conti 97-S078 475 West 1400 North Orem Utah 84057 475,000
Conti 97-S072 1615-1619 Pitkin Avenue Brooklyn New York 11212 430,000
Conti 97-S045 260 Hawthorne Street Brooklyn New York 11225 410,000
Conti 97-S043 96 Stedman Street Lowell Massachusetts 01851 360,000
Conti 97-S040 9101-9105 Ellis Road Melbourne Florida 32904 345,000
Conti 97-S073 6730-6740 SW Canyon Road Portland Oregon 97225 340,000
Conti 97-S077 1365-1375 West 1400 North Orem Utah 84057 300,000
Conti 97-S070 4400 Avenue A Austin Texas 78751 275,000
Conti 97-H007 1045 West 23rd Street Hialeah Florida 33010 265,000
Conti 97-S025 2310 First Street Tillamook Oregon 97141 260,000
Conti 97-S044 223 Islip Avenue Islip New York 11751 234,500
Conti 97-S089 3-3A Rose Street Dover New Hampshire 03820 178,000
Conti 97-S055 1701 NE 28th Street Pompano Beach Florida 33064 150,000
</TABLE>
<PAGE>
EXHIBIT B-2
Healthcare Properties
<TABLE>
<CAPTION>
Cut-Off
Date
Principal
Loan Seller Loan Number Property Name Property Type Balance
<S> <C> <C> <C> <C>
RMF VDC001 Las Villas De Carlsbad Assisted Living 11,937,167
RMF HCC011 Easthaven Care Center Skilled Nursing 9,898,453
RMF HCC005 Rivermont Convalescent and Skilled Nursing 8,780,886
Nursing Center
RMF HCC002 Sycamore View Nursing Home Skilled Nursing 8,381,755
RMF HCC003 Woodland Village Care Center Skilled Nursing 8,142,276
RMF HCC013 Fentress County Nursing Home Skilled Nursing 7,734,537
RMF LCC001 Life Care Centers of Scottsdale Skilled Nursing 7,484,433
Conti 9510148 Oak Grove Institute Foundation Skilled Nursing 5,950,561
Conti 97-H008 Southport Manor Convalescent Skilled Nursing 4,873,824
Center
RMF CLP001 Clipper Home of Portsmouth Skilled Nursing 4,788,063
RMF AVA002 The Bethany Health Care Center Skilled Nursing 4,616,083
RMF HCC009 Heritgage Manor of Springfield Skilled Nursing 4,310,617
RMF AVA001 The Trevecca Health Care Center Skilled Nursing 4,189,185
RMF HCC015 Belen Health Care Center Skilled Nursing 4,002,922
RMF CAN003 Cresthaven Nursing Residence Skilled Nursing 3,880,941
RMF CLP004 Langdon Place of Nashua Assisted Living 3,759,223
RMF CLP005 Clipper Home of Rochester Skilled Nursing 3,600,940
RMF CAN006 Oakwood Manor Skilled Nursing 3,582,407
RMF MTV001 Mountview Retirement Residence Assisted Living 3,480,771
RMF BLR001 Chatsworth Health Care Center Skilled Nursing 3,421,604
RMF BLR002 Fairburn Health Care Center Skilled Nursing 3,421,604
RMF CLP002 Clipper Home of Wolfeboro Skilled Nursing 3,403,086
RMF HCC008 Standing Stone Health Care Skilled Nursing 3,275,118
Center
Conti 97-H013 Santa Fe Trail Health Care Skilled Nursing 3,086,049
Center
RMF CLP006 Clipper Home of North Conway Skilled Nursing 2,888,666
Conti 97-H012 Red Rocks Care Center Skilled Nursing 2,792,983
RMF DMV001 Des Moines Vista Retirement Assisted Living 2,490,099
Center
Conti 97-H025 Cascade Terrace Nursing Home Skilled Nursing 2,489,389
RMF CAN002 Renaissance Care Center Skilled Nursing 1,996,869
RMF FRH001 Forest Hills Care Center Skilled Nursing 1,995,555
Conti 97-H009 Crowne Health Care of Skilled Nursing 1,990,757
Greenville
RMF CLP003 Goodwin's of Exeter Skilled Nursing 1,840,041
Conti 97-H006 The Pointe Assisted Living Assisted Living 1,574,735
Facilities
Conti MM005 Lake Worth Village Assisted Living 1,323,947
Conti 9510171 Town & Country Adult Living Assisted Living 1,196,057
Conti 97-H010 Fountain Retirement Hotel Assisted Living 1,145,866
Conti 97-H007 Nursing Love and Care, Inc. Assisted Living 263,676
</TABLE>
<PAGE>
EXHIBIT B-3
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Total
Original Cut-Off Date Servicing
Loan Loan Property Principal Principal and
Seller Number Property Name Type Balance Balance Trustee Fee
- ------ ------ ------------- ---- ------- ------- -----------
<S> <C> <C> <C> <C> <C> <C>
MS MS1 Hancock Village Apartments Multifamily 63,187,490 63,109,462 0.02250
MS MS2 Elm Ridge Center Anchored Retail 30,000,000 29,965,579 0.11000
MS MS3 Meadowglen Apartments Multifamily 23,000,000 23,000,000 0.11000
MS MS4 Harbor Place Shopping Center Anchored Retail 11,450,000 11,416,416 0.02250
MS MS5 Shadowbrook Apartments Multifamily 11,000,000 10,979,428 0.02250
MS MS6 Tiburon Lodge Hospitality 10,850,000 10,816,809 0.02250
Conti ST001 Perdido Beach Resort Hospitality 22,500,000 22,386,920 0.14250
Conti MP-1022 Brea Union Plaza Anchored Retail 20,000,000 19,968,453 0.09750
Conti 9510172 Hyatt Arlington Hospitality 19,500,000 19,406,230 0.09750
Conti 9761-HSP(A) Homewood Suites- San Jose Hospitality 18,470,000 18,470,000 0.09750
Conti 97-27C Foxdale Manor Apartments Multifamily 18,500,000 18,429,585 0.09750
Conti A970027 Southwestern Bell Call Center Office 15,500,000 15,436,550 0.09750
Conti 9810050 Consolidated Wash Depot Car Washes Various 14,850,000 14,587,046 0.09750
Conti 9810050A Sonny's Car Wash - Hollywood Special Purpose
Conti 9810050B Sonny's Car Wash - Lauderhill Special Purpose
Conti 9810050C Sonny's Car Wash - Lighthouse Point Special Purpose
Conti 9810050D Sonny's Car Wash - Malden Special Purpose
Conti 9810050E Sonny's Car Wash - Nashua Special Purpose
Conti 9810050F Sonny's Car Wash - Lake Margaret/Orlando Special Purpose
Conti 9810050G Sonny's Car Wash - Raleigh/Orlando Special Purpose
Conti 9810050H Sonny's Car Wash - Pompano Beach Special Purpose
Conti 9810050I Sonny's Car Wash - Reading Special Purpose
Conti 9510228 Best Western Creekside Inn Hospitality 14,000,000 13,953,219 0.09750
Conti 25012 The Imeson Center Industrial 13,500,000 13,438,883 0.09750
Conti MP-1041 Alameda Market Square Anchored Retail 13,380,000 13,335,747 0.09750
Conti MP-1042 Wadsworth Market Square Anchored Retail 13,280,000 13,236,077 0.09750
Conti 97-60C Homewood Suites- San Antonio Hospitality 12,750,000 12,750,000 0.09750
Conti 9761-HSP(C) Homewood Suites- Kissimmee Hospitality 10,040,000 10,040,000 0.09750
Conti MP-1013 Homebase, Brea Union Plaza Anchored Retail 10,000,000 9,987,302 0.09750
Conti 28001 Topflight Industrial Airpark Industrial 10,000,000 9,954,489 0.09750
Conti A970044 Gateway Center Anchored Retail 9,700,000 9,684,970 0.09750
Conti 9761-HSP(B) Homewood Suites- Jacksonville Hospitality 9,520,000 9,520,000 0.09750
Conti MP-1043 Havana Market Square Anchored Retail 9,160,000 9,129,704 0.09750
RMF TSAR01 Trolley Station Shopping Center Anchored Retail 12,300,000 12,258,387 0.06750
RMF VDC001 Las Villas De Carlsbad Assisted Living 12,000,000 11,937,167 0.28250
RMF HCC011 Easthaven Care Center Skilled Nursing 9,920,000 9,898,453 0.27250
MS MS7 Collegiate Village Inn Apartments Multifamily 9,300,000 9,256,343 0.02250
RMF WMAR01 Wal-Mart Supercenter Anchored Retail 9,200,000 9,122,871 0.06750
RMF SCA001 Stonecourt Apartments Multifamily 8,900,000 8,868,778 0.06750
Conti 9761-HSP(D) Homewood Suites- Seattle/Tukwila Hospitality 8,830,000 8,830,000 0.09750
RMF HCC005 Rivermont Convalescent and Nursing Center Skilled Nursing 8,800,000 8,780,886 0.27250
Conti MP-1015 Rusty Leaf Plaza Shopping Center Anchored Retail 8,500,000 8,487,914 0.09750
Conti A970030 Quince Diamond Executive Center Office 8,500,000 8,477,247 0.09750
RMF HCC002 Sycamore View Nursing Home Skilled Nursing 8,400,000 8,381,755 0.27250
Conti A970009 Old Town Center Special Purpose 8,375,000 8,327,355 0.09750
GACC TA1355 Park Heights Apartments Multifamily 8,200,000 8,187,117 0.02250
Conti 97C-080137 Kendall Club Apartments Multifamily 8,200,000 8,173,567 0.09750
RMF HCC003 Woodland Village Care Center Skilled Nursing 8,160,000 8,142,276 0.27250
Conti 97-L022 1443 Park Avenue Office 8,000,000 7,959,882 0.09750
MS MS8 Wright State Housing Multifamily 7,800,000 7,778,721 0.02250
Conti 97C-080131 IGEN Building Industrial 7,800,000 7,774,370 0.09750
Conti PMC01005 Lakeridge Tennis Club Special Purpose 7,800,000 7,772,678 0.09750
RMF HCC013 Fentress County Nursing Home Skilled Nursing 7,760,000 7,734,537 0.27250
Conti A970020 Evergreen Square Unanchored Retail 7,750,000 7,718,275 0.09750
Conti 9761-HSP(E) Homewood Suites- Savannah Hospitality 7,640,000 7,640,000 0.09750
RMF LCC001 Life Care Centers of Scottsdale Skilled Nursing 7,500,000 7,484,433 0.28250
MS MS9 Village Park Mobile Home Park 7,420,000 7,407,772 0.02250
MS MS10 Park City West Mobile Home Park 7,300,000 7,287,970 0.02250
RMF SHA003 Squire Hill Apartments, Phase I - CharlottesviMultifamily 7,250,000 7,226,803 0.06750
Conti 97C-080133 Fulton Loft Office Building Office 7,200,000 7,162,166 0.09750
MS MS11 The Inn at Morgan Hill Hospitality 7,000,000 6,982,686 0.02250
Conti NYU108 Lane Hill Multifamily 7,000,000 6,968,694 0.09750
MS MS12 Imperial Estates Mobile Home Park 6,940,000 6,928,563 0.02250
MS MS13 Lawrence Square Manor Apts. Multifamily 6,700,000 6,687,984 0.02250
RMF HIFH01 Holiday Inn I -65/Oxmoor Road Hospitality 6,500,000 6,483,862 0.06750
RMF SOA001 Stanford Oaks Apartments Multifamily 6,200,000 6,174,569 0.06750
RMF PCAR01 Park Centre Commons Anchored Retail 6,000,000 5,984,328 0.06750
RMF SHA002 Squire Hill Apartments - Harrisonburg Multifamily 6,000,000 5,980,802 0.06750
MS MS14 Hacienda Heights Shopping Center Anchored Retail 6,000,000 5,950,563 0.02250
Conti 9510148 Oak Grove Institute Foundation Skilled Nursing 6,000,000 5,950,561 0.11750
Conti A970018 Raintree Village Unanchored Retail 5,950,000 5,929,973 0.09750
Conti MP-1048 Jewell Market Square Anchored Retail 5,610,000 5,591,445 0.09750
MS MS16 820 Business Park Industrial 5,500,000 5,486,276 0.02250
Conti 9754-KMJ K-Mart- Jackson Anchored Retail 5,500,000 5,485,651 0.09750
Conti 97-36C Ramada Inn - Kansas City Hospitality 5,500,000 5,478,421 0.09750
MS MS17 1700 DeAnza Multifamily 5,400,000 5,389,770 0.02250
MS MS18 Kessler Hills Shopping Center Anchored Retail 5,400,000 5,384,034 0.02250
Conti MP-1044 Leetsdale Market Square Anchored Retail 5,370,000 5,352,239 0.09750
MS MS19 100 Dorset Street Anchored Retail 5,300,000 5,290,941 0.02250
Conti 97C-070126 Princeton Square Apartments Multifamily 5,300,000 5,280,184 0.09750
Conti 9410235 Combest Self Storage Consolidation Various 5,245,000 5,231,589 0.09750
Conti 9410235A Lockup Self Storage Self-Storage
Conti 9410235B Allspace Self Storage Self-Storage
Conti 9410235C Garth Road Self Storage Self-Storage
Conti 9410235D Storage Station - La Porte Self-Storage
Conti 9410235E Stow Away Self Storage Self-Storage
Conti A970025 Peter Harris Plaza Consolidation Various 5,200,000 5,177,909 0.09750
Conti A970025A Peter Harris Plaza I - Dewitt Unanchored Retail
Conti A970025B Peter Harris Plaza - East Greenbush Unanchored Retail
Conti A970025C Peter Harris Plaza III - Bethlehem Unanchored Retail
Conti A970025D Peter Harris Plaza IV - Greece Unanchored Retail
MS MS20 Branson Towers Inn Hospitality 5,200,000 5,174,373 0.02250
MS MS21 Sea Venture Hospitality 5,100,000 5,088,018 0.02250
Conti 97C090152 Park Place Office 5,000,000 4,990,781 0.09750
Conti 9510198SN Phoenix West Plaza Anchored Retail 5,000,000 4,987,693 0.14250
Conti NY97003 Surrey Carlton Apts. Multifamily 5,000,000 4,956,956 0.09750
MS MS22 Hampton Inn, Rockford Hospitality 4,900,000 4,880,948 0.11000
Conti 97-H008 Southport Manor Convalescent Center Skilled Nursing 4,900,000 4,873,824 0.11750
Conti A970037 Fremont Village Square Mixed Use 4,835,000 4,821,862 0.09750
RMF CLP001 Clipper Home of Portsmouth Skilled Nursing 4,840,000 4,788,063 0.37880
RMF SPUR01 South Pointe @ Town Lake Shopping Center Unanchored Retail 4,800,000 4,782,819 0.06750
Conti MP-1045 Pecos Market Place Anchored Retail 4,660,000 4,644,587 0.09750
RMF AVA002 The Bethany Health Care Center Skilled Nursing 4,628,000 4,616,083 0.27250
Conti HCCA1880 Holiday Inn - Lawton Hospitality 4,600,000 4,588,744 0.09750
MS MS23 Hampton Inn, Madison Hospitality 4,600,000 4,582,114 0.11000
Conti A960018 Duke Tower Residential Suites Hospitality 4,600,000 4,494,343 0.09750
Conti 97-L037 K-Mart, Des Moines Anchored Retail 4,500,000 4,486,742 0.09750
MS MS24 Carefree Cove Mobile Home Park 4,400,000 4,392,749 0.02250
RMF HCC009 Heritgage Manor of Springfield Skilled Nursing 4,320,000 4,310,617 0.27250
Conti 9510211SN Auto Care Plaza Unanchored Retail 4,317,000 4,303,646 0.14250
Conti 97C-100155 Wing Park Shopping Center Unanchored Retail 4,300,000 4,292,947 0.09750
Conti A970075 Jefferson Smurfit Office Building Office 4,300,000 4,292,202 0.09750
MS MS25 North Main Place Anchored Retail 4,250,000 4,242,816 0.02250
RMF AVA001 The Trevecca Health Care Center Skilled Nursing 4,200,000 4,189,185 0.27250
Conti 97-42-HBS Hannaford Brothers Supermarket Anchored Retail 4,165,000 4,145,452 0.09750
RMF HCC015 Belen Health Care Center Skilled Nursing 4,016,100 4,002,922 0.27250
Conti A970048 Capitol Steps Apartments Mixed Use 4,000,000 3,993,293 0.09750
MS MS26 LeMans Village Multifamily 4,000,000 3,989,353 0.02250
MS MS27 Hampton Inn, Green Bay Hospitality 4,000,000 3,984,447 0.11000
Conti 9510239 Pacific Belgrave Unanchored Retail 4,000,000 3,983,007 0.09750
Conti 9510164 Pacific Randolph Unanchored Retail 4,000,000 3,983,007 0.09750
Conti 97C-080018 The Deerhaven/Sunset Consolidation Various 3,975,000 3,966,070 0.09750
Conti 97C-080018A The Larchwood and Deerhaven Inns Hospitality
Conti 97C-080018B The Sunset Motel Hospitality
Conti NYU107 The Waterview Multifamily 3,900,000 3,882,558 0.09750
RMF CAN003 Cresthaven Nursing Residence Skilled Nursing 3,900,000 3,880,941 0.29250
RMF MSMF01 Madison Station Apartments, Inc. Multifamily 3,800,000 3,792,994 0.06750
RMF CLP004 Langdon Place of Nashua Assisted Living 3,800,000 3,759,223 0.37880
RMF TCAR01 Taylorville Corners Anchored Retail 3,700,000 3,682,444 0.06750
RMF CLP005 Clipper Home of Rochester Skilled Nursing 3,640,000 3,600,940 0.37880
MS MS28 Hickory Hills Mobile Home Park 3,600,000 3,593,757 0.02250
Conti 28002 Tucker Street Warehouse Industrial 3,596,851 3,583,721 0.09750
RMF CAN006 Oakwood Manor Skilled Nursing 3,600,000 3,582,407 0.29250
RMF PVE001 Parc View Estates Multifamily 3,600,000 3,570,786 0.06750
Conti 97C-03121 Rosemeade Park Shopping Center Unanchored Retail 3,500,000 3,488,572 0.09750
RMF MTV001 Mountview Retirement Residence Assisted Living 3,500,000 3,480,771 0.27250
RMF BLR001 Chatsworth Health Care Center Skilled Nursing 3,450,000 3,421,604 0.28250
RMF BLR002 Fairburn Health Care Center Skilled Nursing 3,450,000 3,421,604 0.28250
MS MS29 Extra Space Self Storage Self-Storage 3,412,500 3,403,768 0.02250
RMF CLP002 Clipper Home of Wolfeboro Skilled Nursing 3,440,000 3,403,086 0.37880
Conti 97-3C Hotel Colonial America Hospitality 3,300,000 3,292,729 0.09750
RMF HCC008 Standing Stone Health Care Center Skilled Nursing 3,285,900 3,275,118 0.27250
Conti 26585 Baychester Shopping Center Anchored Retail 3,250,000 3,241,264 0.09750
Conti 97C-090144 Kedzie Plaza South Unanchored Retail 3,250,000 3,238,745 0.09750
MS MS31 Hampton Inn, LaCrosse Hospitality 3,200,000 3,187,558 0.11000
MS MS30 Hampton Inn, Milwaukee Hospitality 3,200,000 3,187,558 0.11000
RMF JFFR01 Just For Feet - Shafer Plaza Anchored Retail 3,150,000 3,129,039 0.06750
Conti 97-H013 Santa Fe Trail Health Care Center Skilled Nursing 3,100,000 3,086,049 0.11750
Conti 9410243 The Vault Self-Storage 3,100,000 3,079,636 0.09750
Conti 97C-070125 Vallejo Village Shopping Center Unanchored Retail 3,080,000 3,076,237 0.09750
MS MS32 Comfort Suites - Atlanta Hospitality 3,050,000 3,042,883 0.02250
RMF YVMF01 Yorkshire Village Duplexes and Townhomes Multifamily 3,040,000 3,034,541 0.06750
Conti 25018 Abba Apartments Multifamily 3,000,000 2,994,280 0.09750
Conti 97C-0999 Summertree Shopping Center Unanchored Retail 3,000,000 2,986,583 0.09750
BCMC 2391 253 Williams Street Industrial 2,950,000 2,950,000 0.03500
Conti A960040 International Plaza Shopping Center Unanchored Retail 3,000,000 2,946,349 0.09750
MS MS33 Arbor Glen Apartments Multifamily 2,900,000 2,892,152 0.11000
Conti 9510192 Avalon Apartments Multifamily 2,900,000 2,890,903 0.09750
RMF CLP006 Clipper Home of North Conway Skilled Nursing 2,920,000 2,888,666 0.37880
Conti 97-H012 Red Rocks Care Center Skilled Nursing 2,800,000 2,792,983 0.11750
Conti A960038 Montefiore Medical Center Office 2,800,000 2,734,302 0.09750
Conti 9510221SN Veterans Road Apartments Multifamily 2,700,000 2,691,818 0.14250
MS MS34 Genesis Square Unanchored Retail 2,656,000 2,647,870 0.02250
Conti A970066 Folsom @12th Street Mixed Use 2,650,000 2,643,743 0.09750
Conti 9410239 A Storage Inn #1 & #4 Various 2,605,000 2,598,485 0.09750
Conti 9410239A A Storage Inn # 1 Self-Storage
Conti 9410239B A Storage Inn # 4 Self-Storage
Conti 9510195SN Tunkhannock Village Center Anchored Retail 2,600,000 2,591,790 0.14250
RMF DMV001 Des Moines Vista Retirement Center Assisted Living 2,500,000 2,490,099 0.29250
Conti 97-H025 Cascade Terrace Nursing Home Skilled Nursing 2,500,000 2,489,389 0.11750
Conti HCCA2035 Ramada Inn-Cocoa, FL Hospitality 2,460,000 2,454,768 0.09750
Conti MP-1050 Gerbes Shopping Center Anchored Retail 2,410,000 2,402,029 0.09750
Conti 9410249 Budget Self Storage- Marlow Self-Storage 2,400,000 2,391,601 0.09750
BCMC 2437 260 Second Street Industrial 2,400,000 2,391,035 0.03500
Conti 96-L014 Springhill Shopping Center Anchored Retail 2,400,000 2,388,604 0.09750
RMF HLA001 Hidden Lake Townhomes Multifamily 2,350,000 2,341,929 0.06750
Conti A970063 Governor's Plaza Multifamily 2,320,000 2,314,478 0.09750
Conti HCCA1975 Ramada Inn-Florence Hospitality 2,300,000 2,291,745 0.09750
Conti 9410222 Atlantic Mini Storage - San Pablo Self-Storage 2,300,000 2,280,793 0.09750
Conti 9410227 Arizona Storage Inns Self-Storage 2,250,000 2,243,678 0.09750
MS MS35 Mini U Storage Self-Storage 2,210,000 2,204,345 0.02250
Conti MP-1049 Table Mesa Center Anchored Retail 2,210,000 2,202,691 0.09750
Conti 2255-09144CMPine Ridge Apartments Multifamily 2,205,000 2,198,179 0.09750
MS MS36 Aggregate Loan Level Information Various 2,200,000 2,195,187 0.10750
MS MS36A United Plumbing - 582 Quaker Hwy. Industrial
MS MS36B United Plumbing - 361 Jefferson Blvd. Industrial
Conti 97-L018 9300 East Hampton Drive Industrial 2,200,000 2,188,806 0.09750
Conti A960047 Coit Medical Building Office 2,175,000 2,166,047 0.09750
Conti A960033 Commercial Point Industrial 2,180,000 2,161,965 0.09750
Conti 9610072 Blue Valley Mobile Home Park Mobile Home Park 2,150,000 2,140,919 0.09750
Conti MP-1047 Southgate Plaza Shopping Center Anchored Retail 2,130,000 2,122,955 0.09750
MS MS38 Oak Harbor Best Western Hospitality 2,100,000 2,094,938 0.02250
Conti 9510147 Pico Blvd Mixed Use 2,100,000 2,093,977 0.09750
Conti 90145 Terrace Club Apartments Multifamily 2,080,000 2,072,539 0.09750
RMF CAN002 Renaissance Care Center Skilled Nursing 2,000,000 1,996,869 0.28250
RMF FRH001 Forest Hills Care Center Skilled Nursing 2,000,000 1,995,555 0.27250
Conti 97-L019 Airborne Complex/Jo-Ann Fabrics Center Unanchored Retail 2,000,000 1,994,961 0.09750
RMF BWA001 Bremner Woods Apartments Phase I Multifamily 2,000,000 1,993,601 0.06750
Conti 9410252 Sun City RV & Mini Storage Self-Storage 2,000,000 1,993,034 0.09750
Conti 9410209 Commerce Freeway Center Industrial 2,000,000 1,993,004 0.09750
Conti 97-H009 Crowne Health Care of Greenville Skilled Nursing 2,000,000 1,990,757 0.11750
Conti 9510150 Holiday Inn Express - Greenfield Hospitality 1,950,000 1,939,366 0.09750
Conti 9410241 A Storage Inn #3 & #5 Various 1,910,000 1,905,223 0.09750
Conti 9410241A A Storage Inn #3 Self-Storage
Conti 9410241B A Storage Inn #5 Self-Storage
MS MS39 AAA County Line Self Storage Self-Storage 1,885,000 1,880,177 0.02250
Conti 9410219 Tanglewood Self Storage Self-Storage 1,875,000 1,868,235 0.09750
RMF EDFR02 Eckerd Drugs Store Anchored Retail 1,870,000 1,862,615 0.06750
RMF CLP003 Goodwin's of Exeter Skilled Nursing 1,860,000 1,840,041 0.37880
Conti 9410216 Security Public Storage - Pittsburg Self-Storage 1,825,000 1,816,203 0.09750
Conti 97C-0128 Briarwood Apartments Multifamily 1,824,000 1,813,804 0.09750
MS MS40 Super 8, Appleton Hospitality 1,800,000 1,793,001 0.11000
Conti MP-1046 Capitol Hill Center Anchored Retail 1,790,000 1,784,080 0.09750
Conti 9510181 Holly-Norm Plaza Unanchored Retail 1,775,000 1,767,685 0.09750
Conti HCCA1800 River Valley Motor Inn Hospitality 1,760,000 1,749,071 0.09750
Conti 9510170 Woodstone Plaza Office 1,750,000 1,743,046 0.09750
Conti 9410232 Secure Self Storage-Livonia Self-Storage 1,700,000 1,695,717 0.09750
Conti 9410251 Crocker's Lockers Self-Storage 1,700,000 1,693,670 0.09750
Conti A970024 Montefiore Medical Center Office 1,700,000 1,690,033 0.09750
Conti 1022 Checkered Flag Car Wash Special Purpose 1,660,000 1,647,055 0.09750
Conti HCCA2049 Super 8 - Nampa Hospitality 1,650,000 1,646,379 0.09750
Conti NYU106 Setre Corp. Mixed Use 1,650,000 1,644,385 0.09750
Conti 97-S020 One Elliot Place Office 1,600,000 1,595,596 0.09750
Conti NYU115 Quaker Villa Shopping Center Anchored Retail 1,600,000 1,594,555 0.09750
Conti 97-H006 The Pointe Assisted Living Facilities Assisted Living 1,580,000 1,574,735 0.11750
Conti 97-S075 South Towne Business Park #4 Unanchored Retail 1,550,000 1,548,481 0.09750
Conti HCCA2050 Super 8 - Winnemucca Hospitality 1,550,000 1,546,679 0.09750
Conti A970049 Oswego Midtown Center Anchored Retail 1,550,000 1,542,688 0.09750
MS MS41 All Storage Self-Storage 1,500,000 1,496,444 0.02250
Conti 9410250 Stonebrook Self-Storage Self-Storage 1,500,000 1,494,275 0.09750
Conti NYU109 Inwood Properties Various 1,500,000 1,493,173 0.09750
Conti NYU109A 10 Vermilyea Multifamily
Conti NYU109B 17-19 Vermilyea Multifamily
Conti NYU109C 530 Isham Street Multifamily
Conti 9510158 Sam Sung Plaza Mixed Use 1,500,000 1,488,442 0.09750
Conti A970023 Pacific Sales Unanchored Retail 1,500,000 1,474,376 0.09750
Conti HCCA2048 Super 8 - Clearfield Hospitality 1,400,000 1,397,000 0.09750
Conti NYU117 Kensington Apartments Multifamily 1,400,000 1,394,590 0.09750
Conti 97-L023 K-Mart - Toledo Anchored Retail 1,400,000 1,394,487 0.09750
Conti 2243-09108 Airborne Freight Industrial 1,375,000 1,367,169 0.09750
Conti 9410217 Newport Business Plaza Industrial 1,370,000 1,359,365 0.09750
Conti 9510149 Aldine Westfield Road Industrial 1,350,000 1,339,249 0.09750
Conti HCCA2046 Super 8 - Ankeny Hospitality 1,340,000 1,337,129 0.09750
Conti MM005 Lake Worth Village Assisted Living 1,330,000 1,323,947 0.11750
Conti PMC1003 Edwards Cinema Unanchored Retail 1,330,000 1,321,016 0.09750
Conti 9410233 Secure Self Storage-Waterford Self-Storage 1,300,000 1,296,725 0.09750
Conti HCCA1925 Econo Lodge- Warrensville Hospitality 1,300,000 1,295,555 0.09750
Conti 97-S088 Westador Shopping Center Unanchored Retail 1,300,000 1,295,251 0.09750
Conti 26583 845 Gerard Ave. Multifamily 1,300,000 1,294,983 0.09750
Conti MM002 Normandy Manor Apartments Multifamily 1,300,000 1,293,979 0.09750
Conti 9510205 Payless Foods Supermarket Unanchored Retail 1,280,000 1,275,588 0.09750
Conti NYU111 39 Queens Boulevard Unanchored Retail 1,275,000 1,268,389 0.09750
Conti 97-L026 Pier 1 Imports- Larchmont Anchored Retail 1,250,000 1,245,516 0.09750
Conti 9510202 Phoenix School Special Purpose 1,225,000 1,220,354 0.09750
Conti MM004 Garden Gate Apartments Multifamily 1,225,000 1,219,327 0.09750
Conti 9510171 Town & Country Adult Living Assisted Living 1,200,000 1,196,057 0.11750
Conti NYU113 Sono Court Mixed Use 1,200,000 1,195,771 0.09750
Conti 9510190SN Federal Way Self Storage Self-Storage 1,200,000 1,193,539 0.14250
RMF ITUR01 The Crossing at Indian Trail Unanchored Retail 1,200,000 1,192,389 0.06750
Conti 97-S067 Chateau Royale Apartments Multifamily 1,175,000 1,170,402 0.09750
Conti 97-H010 Fountain Retirement Hotel Assisted Living 1,150,000 1,145,866 0.11750
Conti A970034 537 Sweeten Creek Industrial Park Industrial 1,070,000 1,066,466 0.09750
Conti 97C-0116 53rd Street Industrial 1,070,000 1,065,130 0.09750
Conti 28000 Newington Warehouse Industrial 1,067,600 1,061,959 0.09750
Conti HCCA2047 Super 8 - Boone Hospitality 1,030,000 1,027,793 0.09750
Conti 97099964 Morrow I Office Building Office 1,000,000 997,924 0.09750
Conti NYU110 Jubilee Supermarket Anchored Retail 1,000,000 996,537 0.09750
RMF EDFR01 Eckerd Drugs Store Anchored Retail 1,000,000 994,792 0.06750
RMF FSUR01 Franklin Station Unanchored Retail 1,000,000 993,658 0.06750
Conti 97-S036 Manassas Industrial Park Industrial 975,000 971,568 0.09750
RMF HVFR01 Hollywood Video Store - Jacksonville Anchored Retail 975,000 969,466 0.06750
Conti 97060017 Meadowbrook MHP Mobile Home Park 966,000 965,208 0.09750
Conti 97-S039 Suitland Shopping Center Unanchored Retail 960,000 955,743 0.09750
Conti 9610066 Youngstown Mobile Home Park Mobile Home Park 950,000 945,394 0.09750
Conti NYU114 723 St. Nicholas Avenue Multifamily 925,000 920,563 0.09750
Conti 97-S093 Patuxent Self Storage Self-Storage 850,000 848,055 0.09750
Conti 9410223 Okie Storage Self-Storage 850,000 846,691 0.09750
Conti 97-S079 Lake Pointe Apartments Multifamily 830,000 828,354 0.09750
Conti 97-S035 Scoville Street Industrial 830,000 826,319 0.09750
Conti 97-S038 Suitland Plaza Shopping Center Unanchored Retail 810,000 806,408 0.09750
Conti PMC01000 Mimi's Cafe Unanchored Retail 800,000 795,961 0.09750
Conti 26582 3810 Bailey Avenue Multifamily 800,000 794,915 0.09750
Conti HCCA2045 Super 8 - Abilene Hospitality 770,000 768,350 0.09750
Conti 97-S037 Plaza 28 Unanchored Retail 770,000 767,290 0.09750
Conti 9410230 U-Stor-It Warehouse Self-Storage 750,000 747,741 0.09750
Conti 9610073 Green River Mobile Home Park Mobile Home Park 695,000 691,485 0.09750
Conti 97-S051 Camelot Apartments Multifamily 650,000 645,137 0.09750
Conti 97-S052 Gilbert Apartments Multifamily 625,000 621,592 0.09750
Conti 97-S021 House of Carpets & Interiors Unanchored Retail 615,000 612,437 0.09750
Conti 97-S087 West Hill Mobile Manor Mobile Home Park 575,000 573,200 0.09750
Conti 97-S069 Windcrest Apartments Multifamily 574,000 571,347 0.09750
Conti 97-S074 Western Community Bank Unanchored Retail 550,000 548,472 0.09750
Conti 97-S056 D'Orleans Apartments Multifamily 540,000 537,605 0.09750
Conti 97-S064 Andrews Avenue Multifamily 500,000 497,038 0.09750
Conti 97060028 Orange County NECA Office 500,000 494,388 0.09750
Conti 97-S047 19 Norwich Street Office 475,000 473,914 0.09750
Conti 97-S078 North Meadow Office Building Office 475,000 473,681 0.09750
Conti 97-S072 1615-1619 Pitkin Avenue Unanchored Retail 430,000 427,594 0.09750
Conti 97-S045 260 Hawthorne Street Multifamily 410,000 406,475 0.09750
Conti 97-S043 96 Stedman Street Industrial 360,000 358,468 0.09750
Conti 97-S040 Hughes Industrial Center Industrial 345,000 342,690 0.09750
Conti 97-S073 Canyon Place Apartments Multifamily 340,000 338,363 0.09750
Conti 97-S077 Executive Warehouse & Storage Self-Storage 300,000 299,167 0.09750
Conti 97-S070 The Retreat Apartments Multifamily 275,000 272,645 0.09750
Conti 97-H007 Nursing Love and Care, Inc. Assisted Living 265,000 263,676 0.11750
Conti 97-S025 Maple Leaf Office Complex Office 260,000 259,769 0.09750
Conti 97-S044 223 Islip Avenue Unanchored Retail 234,500 230,875 0.09750
Conti 97-S089 3-3A Rose Street Multifamily 178,000 177,591 0.09750
Conti 97-S055 Sands Chiropractic Office 150,000 149,134 0.09750
1,216,924,137
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Master Primary Health Care Retained
Loan Control Loan Servicing Servicing Advisor Servicing
Seller Number Number Fee Fee Fee Fee
- ------ ------ ------ --- --- --- ---
<S> <C> <C> <C> <C> <C> <C>
MS 1 MS1 0.01500 0.00500 0.00000
MS 5 MS2 0.01500 0.09250 0.00000
MS 8 MS3 0.01500 0.09250 0.00000
MS 31 MS4 0.01500 0.00500 0.00000
MS 32 MS5 0.01500 0.00500 0.00000
MS 33 MS6 0.01500 0.00500 0.00000
Conti 10 ST001 0.01500 0.02000 0.00000 0.10500
Conti 11 MP-1022 0.01500 0.08000 0.00000
Conti 12 9510172 0.01500 0.08000 0.00000
Conti 14 9761-HSP(A) 0.01500 0.08000 0.00000
Conti 15 97-27C 0.01500 0.08000 0.00000
Conti 20 A970027 0.01500 0.08000 0.00000
Conti 21 9810050 0.01500 0.08000 0.00000
Conti 21A 9810050A
Conti 21B 9810050B
Conti 21C 9810050C
Conti 21D 9810050D
Conti 21E 9810050E
Conti 21F 9810050F
Conti 21G 9810050G
Conti 21H 9810050H
Conti 21J 9810050I
Conti 21K 9510228 0.01500 0.08000 0.00000
Conti 21L 25012 0.01500 0.08000 0.00000
Conti 21M MP-1041 0.01500 0.08000 0.00000
Conti 25 MP-1042 0.01500 0.08000 0.00000
Conti 26 97-60C 0.01500 0.08000 0.00000
Conti 34 9761-HSP(C) 0.01500 0.08000 0.00000
Conti 35 MP-1013 0.01500 0.08000 0.00000
Conti 36 28001 0.01500 0.08000 0.00000
Conti 38 A970044 0.01500 0.08000 0.00000
Conti 39 9761-HSP(B) 0.01500 0.08000 0.00000
Conti 41 MP-1043 0.01500 0.08000 0.00000
RMF 28 TSAR01 0.01500 0.02000 0.00000 0.03000
RMF 29 VDC001 0.01500 0.02000 0.02000 0.22500
RMF 37 HCC011 0.01500 0.02000 0.02000 0.21500
MS 40 MS7 0.01500 0.00500 0.00000
RMF 42 WMAR01 0.01500 0.02000 0.00000 0.03000
RMF 43 SCA001 0.01500 0.02000 0.00000 0.03000
Conti 44 9761-HSP(D) 0.01500 0.08000 0.00000
RMF 46 HCC005 0.01500 0.02000 0.02000 0.21500
Conti 47 MP-1015 0.01500 0.08000 0.00000
Conti 48 A970030 0.01500 0.08000 0.00000
RMF 49 HCC002 0.01500 0.02000 0.02000 0.21500
Conti 50 A970009 0.01500 0.08000 0.00000
GACC 51 TA1355 0.01500 0.00500 0.00000
Conti 52 97C-080137 0.01500 0.08000 0.00000
RMF 53 HCC003 0.01500 0.02000 0.02000 0.21500
Conti 56 97-L022 0.01500 0.08000 0.00000
MS 58 MS8 0.01500 0.00500 0.00000
Conti 59 97C-080131 0.01500 0.08000 0.00000
Conti 60 PMC01005 0.01500 0.08000 0.00000
RMF 62 HCC013 0.01500 0.02000 0.02000 0.21500
Conti 63 A970020 0.01500 0.08000 0.00000
Conti 64 9761-HSP(E) 0.01500 0.08000 0.00000
RMF 65 LCC001 0.01500 0.02000 0.02000 0.22500
MS 66 MS9 0.01500 0.00500 0.00000
MS 67 MS10 0.01500 0.00500 0.00000
RMF 68 SHA003 0.01500 0.02000 0.00000 0.03000
Conti 70 97C-080133 0.01500 0.08000 0.00000
MS 72 MS11 0.01500 0.00500 0.00000
Conti 73 NYU108 0.01500 0.08000 0.00000
MS 74 MS12 0.01500 0.00500 0.00000
MS 75 MS13 0.01500 0.00500 0.00000
RMF 76 HIFH01 0.01500 0.02000 0.00000 0.03000
RMF 78 SOA001 0.01500 0.02000 0.00000 0.03000
RMF 79 PCAR01 0.01500 0.02000 0.00000 0.03000
RMF 80 SHA002 0.01500 0.02000 0.00000 0.03000
MS 81 MS14 0.01500 0.00500 0.00000
Conti 82 9510148 0.01500 0.08000 0.02000
Conti 83 A970018 0.01500 0.08000 0.00000
Conti 87 MP-1048 0.01500 0.08000 0.00000
MS 90 MS16 0.01500 0.00500 0.00000
Conti 91 9754-KMJ 0.01500 0.08000 0.00000
Conti 93 97-36C 0.01500 0.08000 0.00000
MS 95 MS17 0.01500 0.00500 0.00000
MS 96 MS18 0.01500 0.00500 0.00000
Conti 97 MP-1044 0.01500 0.08000 0.00000
MS 98 MS19 0.01500 0.00500 0.00000
Conti 99 97C-070126 0.01500 0.08000 0.00000
Conti 100 9410235 0.01500 0.08000 0.00000
Conti 100A 9410235A
Conti 100B 9410235B
Conti 100C 9410235C
Conti 100D 9410235D
Conti 100E 9410235E
Conti 103 A970025 0.01500 0.08000 0.00000
Conti 103A A970025A
Conti 103B A970025B
Conti 103C A970025C
Conti 103D A970025D
MS 104 MS20 0.01500 0.00500 0.00000
MS 105 MS21 0.01500 0.00500 0.00000
Conti 107 97C090152 0.01500 0.08000 0.00000
Conti 108 9510198SN 0.01500 0.12500 0.00000
Conti 109 NY97003 0.01500 0.08000 0.00000
MS 111 MS22 0.01500 0.09250 0.00000
Conti 112 97-H008 0.01500 0.08000 0.02000
Conti 113 A970037 0.01500 0.08000 0.00000
RMF 114 CLP001 0.01500 0.02000 0.03125 0.31000
RMF 115 SPUR01 0.01500 0.02000 0.00000 0.03000
Conti 116 MP-1045 0.01500 0.08000 0.00000
RMF 117 AVA002 0.01500 0.02000 0.02000 0.21500
Conti 118 HCCA1880 0.01500 0.08000 0.00000
MS 119 MS23 0.01500 0.09250 0.00000
Conti 121 A960018 0.01500 0.08000 0.00000
Conti 122 97-L037 0.01500 0.08000 0.00000
MS 123 MS24 0.01500 0.00500 0.00000
RMF 126 HCC009 0.01500 0.02000 0.02000 0.21500
Conti 127 9510211SN 0.01500 0.12500 0.00000
Conti 128 97C-100155 0.01500 0.08000 0.00000
Conti 129 A970075 0.01500 0.08000 0.00000
MS 131 MS25 0.01500 0.00500 0.00000
RMF 132 AVA001 0.01500 0.02000 0.02000 0.21500
Conti 133 97-42-HBS 0.01500 0.08000 0.00000
RMF 136 HCC015 0.01500 0.02000 0.02000 0.21500
Conti 138 A970048 0.01500 0.08000 0.00000
MS 139 MS26 0.01500 0.00500 0.00000
MS 140 MS27 0.01500 0.09250 0.00000
Conti 141 9510239 0.01500 0.08000 0.00000
Conti 142 9510164 0.01500 0.08000 0.00000
Conti 143 97C-080018 0.01500 0.08000 0.00000
Conti 143A 97C-080018A
Conti 143B 97C-080018B
Conti 146 NYU107 0.01500 0.08000 0.00000
RMF 147 CAN003 0.01500 0.02000 0.02000 0.23500
RMF 154 MSMF01 0.01500 0.02000 0.00000 0.03000
RMF 155 CLP004 0.01500 0.02000 0.03125 0.31000
RMF 159 TCAR01 0.01500 0.02000 0.00000 0.03000
RMF 161 CLP005 0.01500 0.02000 0.03125 0.31000
MS 162 MS28 0.01500 0.00500 0.00000
Conti 165 28002 0.01500 0.08000 0.00000
RMF 166 CAN006 0.01500 0.02000 0.02000 0.23500
RMF 167 PVE001 0.01500 0.02000 0.00000 0.03000
Conti 170 97C-03121 0.01500 0.08000 0.00000
RMF 171 MTV001 0.01500 0.02000 0.02000 0.21500
RMF 172 BLR001 0.01500 0.02000 0.02000 0.22500
RMF 173 BLR002 0.01500 0.02000 0.02000 0.22500
MS 174 MS29 0.01500 0.00500 0.00000
RMF 175 CLP002 0.01500 0.02000 0.03125 0.31000
Conti 176 97-3C 0.01500 0.08000 0.00000
RMF 177 HCC008 0.01500 0.02000 0.02000 0.21500
Conti 180 26585 0.01500 0.08000 0.00000
Conti 181 97C-090144 0.01500 0.08000 0.00000
MS 185 MS31 0.01500 0.09250 0.00000
MS 186 MS30 0.01500 0.09250 0.00000
RMF 188 JFFR01 0.01500 0.02000 0.00000 0.03000
Conti 189 97-H013 0.01500 0.08000 0.02000
Conti 190 9410243 0.01500 0.08000 0.00000
Conti 191 97C-070125 0.01500 0.08000 0.00000
MS 193 MS32 0.01500 0.00500 0.00000
RMF 194 YVMF01 0.01500 0.02000 0.00000 0.03000
Conti 198 25018 0.01500 0.08000 0.00000
Conti 200 97C-0999 0.01500 0.08000 0.00000
BCMC 201 2391 0.01500 0.01750 0.00000
Conti 202 A960040 0.01500 0.08000 0.00000
MS 203 MS33 0.01500 0.09250 0.00000
Conti 204 9510192 0.01500 0.08000 0.00000
RMF 205 CLP006 0.01500 0.02000 0.03125 0.31000
Conti 208 97-H012 0.01500 0.08000 0.02000
Conti 209 A960038 0.01500 0.08000 0.00000
Conti 212 9510221SN 0.01500 0.12500 0.00000
MS 213 MS34 0.01500 0.00500 0.00000
Conti 214 A970066 0.01500 0.08000 0.00000
Conti 215 9410239 0.01500 0.08000 0.00000
Conti 215A 9410239A
Conti 215B 9410239B
Conti 217 9510195SN 0.01500 0.12500 0.00000
RMF 221 DMV001 0.01500 0.02000 0.02000 0.23500
Conti 222 97-H025 0.01500 0.08000 0.02000
Conti 223 HCCA2035 0.01500 0.08000 0.00000
Conti 224 MP-1050 0.01500 0.08000 0.00000
Conti 225 9410249 0.01500 0.08000 0.00000
BCMC 226 2437 0.01500 0.01750 0.00000
Conti 227 96-L014 0.01500 0.08000 0.00000
RMF 229 HLA001 0.01500 0.02000 0.00000 0.03000
Conti 230 A970063 0.01500 0.08000 0.00000
Conti 231 HCCA1975 0.01500 0.08000 0.00000
Conti 233 9410222 0.01500 0.08000 0.00000
Conti 234 9410227 0.01500 0.08000 0.00000
MS 236 MS35 0.01500 0.00500 0.00000
Conti 237 MP-1049 0.01500 0.08000 0.00000
Conti 238 2255-09144CM1 0.01500 0.08000 0.00000
MS 239 MS36 0.01500 0.09000 0.00000
MS 239A MS36A
MS 239B MS36B
Conti 240 97-L018 0.01500 0.08000 0.00000
Conti 242 A960047 0.01500 0.08000 0.00000
Conti 243 A960033 0.01500 0.08000 0.00000
Conti 245 9610072 0.01500 0.08000 0.00000
Conti 246 MP-1047 0.01500 0.08000 0.00000
MS 249 MS38 0.01500 0.00500 0.00000
Conti 250 9510147 0.01500 0.08000 0.00000
Conti 251 90145 0.01500 0.08000 0.00000
RMF 254 CAN002 0.01500 0.02000 0.02000 0.22500
RMF 255 FRH001 0.01500 0.02000 0.02000 0.21500
Conti 256 97-L019 0.01500 0.08000 0.00000
RMF 257 BWA001 0.01500 0.02000 0.00000 0.03000
Conti 258 9410252 0.01500 0.08000 0.00000
Conti 259 9410209 0.01500 0.08000 0.00000
Conti 260 97-H009 0.01500 0.08000 0.02000
Conti 261 9510150 0.01500 0.08000 0.00000
Conti 262 9410241 0.01500 0.08000 0.00000
Conti 262A 9410241A
Conti 262B 9410241B
MS 265 MS39 0.01500 0.00500 0.00000
Conti 266 9410219 0.01500 0.08000 0.00000
RMF 267 EDFR02 0.01500 0.02000 0.00000 0.03000
RMF 268 CLP003 0.01500 0.02000 0.03125 0.31000
Conti 269 9410216 0.01500 0.08000 0.00000
Conti 270 97C-0128 0.01500 0.08000 0.00000
MS 272 MS40 0.01500 0.09250 0.00000
Conti 273 MP-1046 0.01500 0.08000 0.00000
Conti 274 9510181 0.01500 0.08000 0.00000
Conti 276 HCCA1800 0.01500 0.08000 0.00000
Conti 278 9510170 0.01500 0.08000 0.00000
Conti 280 9410232 0.01500 0.08000 0.00000
Conti 281 9410251 0.01500 0.08000 0.00000
Conti 282 A970024 0.01500 0.08000 0.00000
Conti 283 1022 0.01500 0.08000 0.00000
Conti 284 HCCA2049 0.01500 0.08000 0.00000
Conti 285 NYU106 0.01500 0.08000 0.00000
Conti 288 97-S020 0.01500 0.08000 0.00000
Conti 289 NYU115 0.01500 0.08000 0.00000
Conti 290 97-H006 0.01500 0.08000 0.02000
Conti 292 97-S075 0.01500 0.08000 0.00000
Conti 293 HCCA2050 0.01500 0.08000 0.00000
Conti 294 A970049 0.01500 0.08000 0.00000
MS 297 MS41 0.01500 0.00500 0.00000
Conti 298 9410250 0.01500 0.08000 0.00000
Conti 299 NYU109 0.01500 0.08000 0.00000
Conti 299A NYU109A
Conti 299B NYU109B
Conti 299C NYU109C
Conti 300 9510158 0.01500 0.08000 0.00000
Conti 301 A970023 0.01500 0.08000 0.00000
Conti 302 HCCA2048 0.01500 0.08000 0.00000
Conti 304 NYU117 0.01500 0.08000 0.00000
Conti 305 97-L023 0.01500 0.08000 0.00000
Conti 306 2243-09108 0.01500 0.08000 0.00000
Conti 307 9410217 0.01500 0.08000 0.00000
Conti 308 9510149 0.01500 0.08000 0.00000
Conti 309 HCCA2046 0.01500 0.08000 0.00000
Conti 310 MM005 0.01500 0.08000 0.02000
Conti 311 PMC1003 0.01500 0.08000 0.00000
Conti 312 9410233 0.01500 0.08000 0.00000
Conti 313 HCCA1925 0.01500 0.08000 0.00000
Conti 314 97-S088 0.01500 0.08000 0.00000
Conti 315 26583 0.01500 0.08000 0.00000
Conti 316 MM002 0.01500 0.08000 0.00000
Conti 317 9510205 0.01500 0.08000 0.00000
Conti 318 NYU111 0.01500 0.08000 0.00000
Conti 320 97-L026 0.01500 0.08000 0.00000
Conti 321 9510202 0.01500 0.08000 0.00000
Conti 322 MM004 0.01500 0.08000 0.00000
Conti 325 9510171 0.01500 0.08000 0.02000
Conti 326 NYU113 0.01500 0.08000 0.00000
Conti 327 9510190SN 0.01500 0.12500 0.00000
RMF 328 ITUR01 0.01500 0.02000 0.00000 0.03000
Conti 329 97-S067 0.01500 0.08000 0.00000
Conti 330 97-H010 0.01500 0.08000 0.02000
Conti 331 A970034 0.01500 0.08000 0.00000
Conti 332 97C-0116 0.01500 0.08000 0.00000
Conti 333 28000 0.01500 0.08000 0.00000
Conti 334 HCCA2047 0.01500 0.08000 0.00000
Conti 335 97099964 0.01500 0.08000 0.00000
Conti 336 NYU110 0.01500 0.08000 0.00000
RMF 337 EDFR01 0.01500 0.02000 0.00000 0.03000
RMF 338 FSUR01 0.01500 0.02000 0.00000 0.03000
Conti 339 97-S036 0.01500 0.08000 0.00000
RMF 340 HVFR01 0.01500 0.02000 0.00000 0.03000
Conti 341 97060017 0.01500 0.08000 0.00000
Conti 342 97-S039 0.01500 0.08000 0.00000
Conti 343 9610066 0.01500 0.08000 0.00000
Conti 344 NYU114 0.01500 0.08000 0.00000
Conti 345 97-S093 0.01500 0.08000 0.00000
Conti 346 9410223 0.01500 0.08000 0.00000
Conti 347 97-S079 0.01500 0.08000 0.00000
Conti 348 97-S035 0.01500 0.08000 0.00000
Conti 350 97-S038 0.01500 0.08000 0.00000
Conti 351 PMC01000 0.01500 0.08000 0.00000
Conti 352 26582 0.01500 0.08000 0.00000
Conti 353 HCCA2045 0.01500 0.08000 0.00000
Conti 354 97-S037 0.01500 0.08000 0.00000
Conti 355 9410230 0.01500 0.08000 0.00000
Conti 356 9610073 0.01500 0.08000 0.00000
Conti 357 97-S051 0.01500 0.08000 0.00000
Conti 358 97-S052 0.01500 0.08000 0.00000
Conti 359 97-S021 0.01500 0.08000 0.00000
Conti 360 97-S087 0.01500 0.08000 0.00000
Conti 361 97-S069 0.01500 0.08000 0.00000
Conti 362 97-S074 0.01500 0.08000 0.00000
Conti 363 97-S056 0.01500 0.08000 0.00000
Conti 364 97-S064 0.01500 0.08000 0.00000
Conti 365 97060028 0.01500 0.08000 0.00000
Conti 366 97-S047 0.01500 0.08000 0.00000
Conti 367 97-S078 0.01500 0.08000 0.00000
Conti 368 97-S072 0.01500 0.08000 0.00000
Conti 369 97-S045 0.01500 0.08000 0.00000
Conti 370 97-S043 0.01500 0.08000 0.00000
Conti 371 97-S040 0.01500 0.08000 0.00000
Conti 372 97-S073 0.01500 0.08000 0.00000
Conti 373 97-S077 0.01500 0.08000 0.00000
Conti 374 97-S070 0.01500 0.08000 0.00000
Conti 375 97-H007 0.01500 0.08000 0.02000
Conti 376 97-S025 0.01500 0.08000 0.00000
Conti 377 97-S044 0.01500 0.08000 0.00000
Conti 378 97-S089 0.01500 0.08000 0.00000
Conti 379 97-S055 0.01500 0.08000 0.00000
</TABLE>
<PAGE>
EXHIBIT C-1
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
------------------, being first duly sworn, deposes and says:
1. That he/she is a ------------ of ------------ -------------------------
(the "Purchaser"), a ----------- duly organized and existing under the laws of
the State of ---------------, on behalf of which he makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is --------------.
3. That the Purchaser of the Deutsche Mortgage & Asset Receiving
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class [R] [LR] (the "Class [R] [LR] Certificate") is a Permitted Transferee (as
defined in Article I of the Pooling and Servicing Agreement dated as of March 1,
1998, by and among, Deutsche Mortgage & Asset Receiving Corporation, as
depositor, Banc One Mortgage Capital Markets, LLC, as servicer, Banc One
Mortgage Capital Markets, LLC, as special servicer, LaSalle National Bank, as
trustee, and ABN AMRO Bank N.V., as fiscal agent (the "Pooling and Servicing
Agreement")), or is acquiring the Class [R] [LR] Certificate for the account of,
or as agent (including as a broker, nominee, or other middleman) for, a
Permitted Transferee and has received from such person or entity an affidavit
substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they have come
due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Purchaser understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [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.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is not
purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a "disqualified
organization," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [Upper Tier REMIC][Lower Tier REMIC], the Purchaser agrees to act
as "tax matters person" and to perform the functions of "tax matters partner" of
the [Upper 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] [LR] Certificate.
Capitalized terms used but not defined herein have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
<PAGE>
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf by its --------------- this ------- day of ----------------,
199--.
[Purchaser]
By:----------------------
Title:
Name:
<PAGE>
Personally appeared before me the above-named ---------------, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ------------- of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and the free act and deed of the
Purchaser.
Subscribed and sworn before me this ------- day of -------------------,
199--.
- ------------------------------
NOTARY PUBLIC
COUNTY OF -----------
STATE OF ---------
My commission expires the -------- day of ----------------, 199--.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Re: Deutsche Mortgage & Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates,
Series 1998-C1, Class [R][LR], Class [R][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]
----------------------------
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street, Suite 1740
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Deutsche Mortgage & Asset Receiving Corporation
One International Place, Room 520
Boston, Massachusetts 02110
Re: Transfer of Deutsche Mortgage & Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates,
Series 1998-C1, Class [F] [G] [H] [J] [K] [L] [M] [R] [LR]
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of March 1, 1998 (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 Deutsche Mortgage & Asset Receiving Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1 (the "Certificates") in connection
with the transfer by ---------- (the "Seller") to the undersigned (the
"Purchaser") of [$----------- aggregate Certificate Balance] [-----% Percentage
Interest] of Class [F] [G] [H] [J] [K] [L] [M] [R] [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 have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Certificate, and we and any accounts for which we
are acting are each able to bear the economic risk of our or its investment. We
are acquiring the Certificate purchased by us for our own account or for one or
more accounts (each of which is an "institutional accredited investor") as to
each of which we exercise sole investment discretion. The Purchaser hereby
undertakes to reimburse the Trust for any costs incurred by it in connection
with this transfer.
[For Qualified Institutional Buyers only] 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) to "institutional
accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the Securities Act, pursuant to any other
exemption from the registration requirements of the Securities Act, subject in
the case of this clause (ii) to (a) the receipt by the Certificate Registrar of
a letter substantially in the form hereof, (b) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar that
such reoffer, resale, pledge or transfer is in compliance with the Securities
Act, (c) the receipt by the Certificate Registrar of such other evidence
acceptable to the Certificate Registrar that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act and other applicable laws, and
(d) a written undertaking to reimburse the Trust for any costs incurred by it in
connection with the proposed transfer. 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 March
[----], 1998, relating to the Certificates (the "Private Placement Memorandum")
and the agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement Memorandum.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of an
Individual Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate, except in compliance with Section 5.02 of the Pooling and Servicing
Agreement.
7. Check one of the following:
/_/ The Purchaser is a "U.S. Person" and it has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
/_/ The Purchaser is not a "U.S. Person" and under applicable law in
effect on the date hereof, no Taxes will be required to be withheld by
the 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).
<PAGE>
Please make all payments due on the Certificates:**
[FN]
- --------
** 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.
(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:--------- --, ----
<PAGE>
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
[Date]
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street, Suite 1740
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Deutsche Mortgage & Asset Receiving Corporation
One International Place, Room 520
Boston, Massachusetts 02110
Re: Deutsche Mortgage & Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates,
Series 1998-C1, Class [F] [G] [H] [J] [K] [L] [M] [R] [LR]
Ladies and Gentlemen:
--------------- (the "Purchaser") intends to purchase
from --------------- (the "Seller") $-------------- initial Certificate Balance
or _____% Percentage Interest of Deutsche Mortgage & Asset Receiving
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class [F] [G] [H] [J] [K] [L] [M] [R] [LR], CUSIP No. --------------(the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of March 1, l998, by and among,
Deutsche Mortgage & Asset Receiving Corporation as depositor, Banc One Mortgage
Capital Markets, LLC, as serviocer (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. The Purchaser is not (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a
Keogh plan, which is subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), Section 4975 of the Code, or any essentially
similar Federal, State or local law (a "Similar Law") (each, a "Plan"), nor
(b) a collective investment fund in which such Plans are invested, an
insurance company using assets of separate accounts or general accounts
which include assets of Plans (or which are deemed pursuant to ERISA or any
Similar Law to include assets of Plans) or other Person acting on behalf of
any such Plan or using the assets of any such Plan, other than 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 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 l(a) or l(b) above, except in the case of the Class R or Class LR
Certificate, which may not be transferred unless the transferee represents
it is not such a Person, such Purchaser is required to provide to the
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 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 or the Certificate Registrar.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation
Letter on ------------ ---, -----.
Very truly yours,
---------------------------------
By: ----------------------------
Name:
Title:
<PAGE>
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information
Name of Mortgagor: ----------------------
Servicer
Loan No.: ----------------------
Custodian/Trustee
Name: ----------------------
Address: ----------------------
Custodian/Trustee
Mortgage File No.: ----------------------
Depositor
Name: ----------------------
Address: ----------------------
Certificates: Deutsche Mortgage & Asset Receiving
Corporation, Commercial Mortgage Pass-
Through Certificates, Series 1998-C1
The undersigned Servicer hereby acknowledges that it has received from
LaSalle National Bank, as Trustee for the Holders of Deutsche Mortgage & Asset
Receiving Corporation, Commercial Mortgage Pass-Through Certificates, Series
1998-C1, the documents referred to below (the "Documents"). All capitalized
terms of not otherwise defined in this Request for Release shall have the
meanings given them in the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of March 1, 1998, 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.
( ) Promissory Note dated ------------, 199--, in the original principal
sum of $--------, made by ------------, payable to, or endorsed to the
order of, the Trustee.
( ) Mortgage recorded on -------------- as instrument no. ------------
in the County Recorder's Office of the County of -----------------,
State of ------------------ in book/reel/docket -------------- of
official records at page/image --------------.
( ) Deed of Trust recorded on ------------------- as instrument no.
-------- in the County Recorder's Office of the County of
----------------, State of ------------ in book/reel/docket of
official records at page/image -----------.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
------------------ as instrument no. ------------- in the County
Recorder's Office of the County of ----------------, State of
----------------- in book/reel/docket ------------- of official
records at page/image -------------.
( ) Other documents, including any amendments, assignments or other
assumptions of the Note or Mortgage.
( ) -------------------------
( ) -------------------------
( ) -------------------------
( ) -------------------------
The undersigned Servicer hereby acknowledges and agrees as
follows:
(1) The Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee,
solely for the purposes provided in the Agreement.
(2) The Servicer shall not cause or permit the Documents
to become subject to, or encumbered by, any claim,
liens, security interest, charges, writs of
attachment or other impositions nor shall the
Servicer assert or seek to assert any claims or
rights of set-off to or against the Documents or any
proceeds thereof.
(3) The Servicer shall return the Documents to the
Custodian when the need therefor no longer exists,
unless the Mortgage Loan relating to the Documents
has been liquidated and the proceeds thereof have
been remitted to the Collection Account and except as
expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or
control of the Servicer shall at all times be
earmarked for the account of the Trustee, and the
Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the
Servicer's possession, custody or control.
Banc One Mortgage Capital Markets, LLC
By: ---------------------
Title: ------------------
Date: -------------, 19--
<PAGE>
EXHIBIT F
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT, dated as of [ ] by and among [NAME OF CUSTODIAN],
as Custodian (the "Custodian"), Banc One Mortgage Capital Markets, LLC, as
servicer (the "Servicer"), Banc One Mortgage Capital Markets, LLC, as special
servicer (the "Special Servicer"), and LaSalle National Bank, as Trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Servicer, the Special Servicer and the Trustee are parties to
a Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of March 1, 1998, among Deutsche Mortgage & Asset Receiving Corporation, as
Depositor, the Servicer, the Special Servicer, the Trustee and ABN AMRO Bank
N.V., as Fiscal Agent, relating to Deutsche Mortgage & Asset Receiving
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-C1
(capitalized terms used but not defined herein having the meaning assigned
thereto in the Pooling and Servicing Agreement);
WHEREAS, the parties hereto desire the Custodian to take possession of the
documents specified in Section 2.01 of the Pooling and Servicing Agreement, as
custodian for the Trustee, in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
1. The Trustee hereby certifies that it has caused to be delivered and
released to the Custodian and the Custodian hereby acknowledges receipt of the
documents specified in Section 2.01 of the Pooling and Servicing Agreement
pertaining to each of the Mortgage Loans identified in the Mortgage Loan
Schedule attached to the Pooling and Servicing Agreement as Exhibit B. From time
to time, the Servicer shall forward to the Custodian additional original
documents evidencing an assumption or modification of a Mortgage Loan approved
by the Servicer. All Mortgage Loan documents held by the Custodian as to each
Mortgage Loan are referred to herein as the "Custodian's Mortgage File." The
Custodian hereby agrees to review each of the Custodian's Mortgage Files and
perform such other obligations of the Custodian as such obligations are set
forth in the Pooling and Servicing Agreement (including Section 2.02 thereof).
2. With respect to each Note, each Mortgage, each Assignment of Mortgage
and each other document constituting each Custodian's Mortgage File which is
delivered to the Custodian or which at any time comes into the possession of the
Custodian, the Custodian is exclusively the custodian for and the bailee of the
Trustee or the Servicer. The Custodian shall hold all documents constituting
each Custodian's Mortgage File received by it for the exclusive use and benefit
of the Trustee, and shall make disposition thereof only in accordance with the
instructions furnished by the Servicer. The Custodian shall segregate and
maintain continuous custody of all documents constituting the Custodian's
Mortgage File received in secure and fire resistant facilities located in the
State of __________ in accordance with customary standards for such custody. In
the event the Custodian discovers any defect with respect to any Custodian's
Mortgage File, the Custodian shall give written specification of such defect to
the Servicer and the Trustee.
3. From time to time and as appropriate for the foreclosure or servicing of
any of the Mortgage Loans, the Custodian is hereby directed, upon written
request and receipt from the Servicer (a copy of which shall be forwarded to the
Trustee), to release to the Servicer the related Custodian's Mortgage File or
the documents set forth in such receipt to the Servicer. All documents so
released to the Servicer shall be held by it in trust for the benefit of the
Trustee. The Servicer shall return to the Custodian the Custodian's Mortgage
File or such documents when the Servicer's need therefor in connection with such
foreclosure or servicing no longer exists, unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certification to this effect from
the Servicer to the Custodian, the Servicer's receipt shall be released by the
Custodian to the Servicer.
4. Upon the purchase of any Mortgage Loan pursuant to the terms of the
Pooling and Servicing Agreement or the payment in full of any Mortgage Loan, and
upon receipt by the Custodian of the Servicer's request for release, receipt and
certification (which certification shall include a statement to the effect that
all amounts received in connection with such payment or repurchase have been
credit to the Collection Account or Distribution Account as provided in the
Pooling and Servicing Agreement), the Custodian shall promptly release the
related Custodian's Mortgage File to the Servicer.
5. It is understood that the Custodian will charge such fees for its
services under this Agreement as are set forth in a separate agreement between
the Custodian and the Servicer, the payment of which, together with the
Custodian's expenses in connection therewith, shall be solely the obligation of
the Servicer.
6. The Trustee may upon 30 days written days notice (with copy to the
Servicer) remove and discharge the Custodian or any successor Custodian
thereafter appointed from the performance of its duties under this Custodial
Agreement. Simultaneously, the Trustee shall appoint a successor Custodian to
act on its behalf by written instrument, one original counterpart of which
instrument shall be delivered to each Rating Agency, one copy to the Servicer
and one copy to the successor Custodian. In the event of any such removal, the
Custodian shall promptly transfer to the successor Custodian, as directed, all
Custodian's Mortgage Files being administered under this Custodial Agreement.
Notwithstanding the foregoing, so long as Banc One Mortgage Capital Markets,
LLC, is Servicer, the Trustee shall not have a right to remove the Custodian.
7. Upon reasonable prior written notice to the Custodian, the Trustee and
its agents, accountants, attorneys and auditors will be permitted during normal
business hours to examine the Custodian's Mortgage Files, documents, records and
other papers in the possession of or under the control of the Custodian relating
to any or all of the Mortgage Loans.
8. If the Custodian is furnished with written notice from the Trustee or
the Servicer that the Pooling and Servicing Agreement has been terminated as to
any or all of the Mortgage Loans, it shall upon written request of the Trustee
or the Servicer release to such persons as the Trustee or the Servicer shall
designate the Custodian's Mortgage Files relating to such Mortgage Loans as the
Trustee or the Servicer shall request and shall complete the Assignments of
Mortgage and endorse the Notes only as, and if, the Trustee or the Servicer
shall request. The person making such written request shall send notice of such
request to all other parties to the Pooling and Servicing Agreement.
9. The Custodian shall, at its own expense, maintain at all times during
the existence of this Custodial Agreement and keep in full force and effect (a)
fidelity insurance, (b) theft of documents insurance, (c) forgery insurance and
(d) errors and omissions insurance. All such insurance shall be in amounts, with
standard coverage and subject to deductibles, as are customary for insurance
typically maintained by banks which act as custodian in similar transactions
provided, however, that so long as the Custodian is rated at least "AA" no such
insurance shall be required.
10. This Custodial Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute and be one and the same instrument.
11. Within 10 days of each anniversary of the date of this Custodial
Agreement, or upon the request of the Trustee or the Servicer at any other time,
the Custodian shall provide to the Trustee and the Servicer a list of all the
Mortgage Loans for which the Custodian holds a Custodian's Mortgage File
pursuant to this Custodial Agreement. Such list may be in the form of a copy of
the Mortgage Loan Schedule with manual deletions to specifically denote any
Mortgage Loans paid off, liquidated or repurchased since the date of this
Custodial Agreement.
12. This Custodial Agreement shall be construed in accordance with the laws
of the State of New York, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
13. By execution of this Custodial Agreement, the Custodian warrants that
it currently does not hold and during the existence of this Custodial Agreement
shall not hold any adverse interest, by way of security or otherwise, in any
Mortgage Loan, and hereby waives and releases any such interest which it may
have in any Mortgage Loan as of the date hereof.
14. The Custodian may terminate its obligations under this Custodial
Agreement upon at least 60 days notice to the Trustee and the Servicer, provided
that so long as Banc One Mortgage Capital Markets, LLC, is the Servicer, Banc
One Mortgage Capital Markets, LLC will not resign from its duties hereunder. In
the event of such termination, the Trustee shall appoint a successor Custodian.
Upon such appointment, the Custodian shall promptly transfer to the successor
Custodian, as directed, all Custodian's Mortgage Files being administered under
this Custodial Agreement.
15. This Custodial Agreement shall terminate upon the final payment or
other liquidation (or advance with respect thereto) of the last Mortgage Loan or
the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and the final remittance of all funds due the
Certificateholders under the Pooling and Servicing Agreement. In such event, all
documents remaining in the Custodian's Mortgage Files shall be forwarded to the
Trustee.
16. All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given when received by the addressee. Any
such demand, notice or communication hereunder shall be deemed to have been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted on
the return receipt).
17. The Servicer shall indemnify, defend, and hold harmless the Custodian
for any actions taken by the Custodian at its written request.
<PAGE>
IN WITNESS WHEREOF, the Custodian, the Servicer and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the date first written above.
[NAME OF CUSTODIAN],
as Custodian
By:--------------------------------
Name:------------------------------
Title:-----------------------------
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
as Servicer
By:--------------------------------
Name:------------------------------
Title:-----------------------------
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
as Special Servicer
By:--------------------------------
Name:------------------------------
Title:-----------------------------
LASALLE NATIONAL BANK,
as Trustee
By:--------------------------------
Name:------------------------------
Title:-----------------------------
<PAGE>
EXHIBIT G
SECURITIES LEGEND
The Private Certificates will bear a legend (the "Securities Legend") to
the following effect, unless the Certificate Registrar determines otherwise in
accordance with applicable law:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"),
OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND
ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE
144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S
UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
<PAGE>
EXHIBIT H-1
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 1, 1998, between Boston Capital Mortgage Company Limited
Partnership, as seller (the "Seller"), and Deutsche Mortgage & Asset Receiving
Corporation, as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch
IBCA, Inc. and Moody's Investors Service, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of March 1, 1998
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor, Banc
One Mortgage Capital Markets, LLC, as servicer (in such capacity, the
"Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle National Bank, as trustee (in such capacity, the "Trustee"), and ABN
AMRO Bank N.V., as fiscal agent. Capitalized terms not otherwise defined herein
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to Deutsche
Morgan Grenfell Inc., Morgan Stanley & Co. Incorporated and Llama Company, L.P.
(together, the "Underwriters") pursuant to an underwriting agreement dated March
24, 1998 (the "Underwriting Agreement"). The Purchaser intends to sell the
remaining Certificates (the "Non-Registered Certificates") pursuant to a
certificate purchase agreement dated March 24, 1998 (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 30, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on March 1, 1998 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$160,563,918.00, subject to a variance of plus or minus 5%. The purchase price
for the Mortgage Loans shall be determined and paid to the Seller in accordance
with the terms of an allocation agreement dated March 24, 1998 (the "Allocation
Agreement"), to which the Seller and Purchaser, among others, are parties.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdbacks in accordance with the Allocation Agreement) and the
issuance of the Certificates, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse, all the right,
title and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, including all interest and principal
received or receivable by the Seller on or with respect to the Mortgage Loans
after the Cut-off Date, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans; provided, however, that in the case of any Mortgage Loan with an
Anticipated Repayment Date prior to maturity (each an "ARD Loan") accruing
Excess Interest at an annual rate of greater than 2%, such ARD Loan shall be
deemed to have been modified to provide that, as of the Cut-off Date, such ARD
Loan shall accrue Excess Interest at an annual rate of no more than 2%;
provided, further, that with respect to such limitation of Excess Interest, the
related borrowers shall be third-party beneficiaries of such modification of
such ARD Loan. The Purchaser shall be entitled to (and, to the extent received
by or on behalf of the Seller, the Seller shall deliver or cause to be delivered
to or at the direction of the Purchaser) all scheduled payments of principal,
and interest due thereon, due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date; provided, however, that all scheduled payments of principal, and
interest accrued but not paid or due thereon, due on or before the Cut-off Date
and collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Note referred to in clause (i) of Exhibit B has been delivered by the
Seller with respect to each such Mortgage File. In the event Seller fails to so
deliver each such Mortgage File to the Trustee, the Purchaser and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law. If the Seller 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 clauses (ii),
(iv), (viii), (xi)(A) and (xii) of Exhibit B, 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 this Section 2(b) 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 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 Trustee, 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 or at the direction of the Purchaser (or any
subsequent owner of the affected Mortgage Loan, including without limitation the
Trustee) within 180 days of the Closing Date (or within such longer period after
the Closing Date as the Purchaser (or such subsequent owner) may consent to,
which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
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
clause (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Seller has delivered to the
Trustee a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B covering all the
Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdbacks
in accordance with the Allocation Agreement) has been received by the Seller and
the issuance of the Certificates, the Trustee shall be authorized to release to
the Purchaser or its designee all of the Mortgage Files in the Trustee's
possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B but that are reasonably required to
service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller shall deliver a copy of the related
Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
(f) It is further acknowledged and agreed by the Seller that the Purchaser
intends to convey all right, title and interest of the Purchaser in and to the
Mortgage Loans and all rights and remedies under this Agreement to the Trustee,
including, without limitation, all rights and remedies as may be available under
applicable law to the Purchaser in the event of a breach of a representation or
warranty pursuant to Section 4(a) hereof or in the event of a Defect; provided,
that the Trustee shall be a third-party beneficiary of this Agreement and shall
be entitled to enforce any obligations of the Mortgage Loan Seller hereunder in
connection with a breach of any such representation or warranty or a Defect as
if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), each of
the representations and warranties set forth in Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited partnership duly organized and validly existing
under the laws of the Commonwealth of Massachusetts, and is in compliance
with the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii)The execution and delivery of this Agreement by the Seller, and the
performance of, and compliance with, the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable
to it or any of its assets, in each case which materially and adversely
affect the ability of the Seller to carry out the transactions contemplated
by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv)This Agreement, assuming due authorization, execution and delivery by
the Purchaser, constitutes a valid, legal and binding obligation of the
Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights generally, (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance of, and compliance with, the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Seller's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(vi)No litigation is pending with regard to which the Seller has received
service of process or, to the best of the Seller's knowledge, threatened
against the Seller the outcome of which, in the Seller's good faith and
reasonable judgment, is likely to materially and adversely affect the ability
of the Seller to perform its obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment banker, agent or
other person, other than the Purchaser, the Underwriters, the Initial
Purchasers, and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans
or the consummation of any of the other transactions contemplated hereby.
(viii) Except with respect to Llama Company, L.P., an affiliate of the
Seller, serving as an Underwriter neither the Seller nor anyone acting on its
behalf has (A) offered, pledged, sold, disposed of or otherwise transferred
any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy or to
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any person in
any manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (D) made any general solicitation by means of
general advertising or in any other manner with respect to any Certificate,
any interest in any Certificate or any similar security, or (E) taken any
other action, that (in the case of any of the acts described in clauses (A)
through (E) above) would constitute or result in a violation of the
Securities Act or any state securities law relating to or in connection with
the issuance of the Certificates or require registration or qualification
pursuant to the Securities Act or any state securities law of any Certificate
not otherwise intended to be a Registered Certificate. In addition, the
Seller will not act, nor has it authorized or will it authorize any person to
act, in any manner set forth in the foregoing sentence with respect to any of
the Certificates or interests therein. For purposes of this paragraph
4(b)(viii), the term "similar security" shall be deemed to include, without
limitation, any security evidencing or, upon issuance, that would have
evidenced an interest in the Mortgage Loans or any substantial number
thereof.
(ix)Insofar as it relates to the Mortgage Loans, the information set forth
on pages A-1 through A-23, inclusive, of Annex A to the Prospectus Supplement
(as defined in Section 9) (the "Loan Detail") and, to the extent consistent
therewith, the information set forth on the diskette attached to the
Prospectus Supplement and the accompanying prospectus (the "Diskette"), is
true and correct in all material respects. Insofar as it relates to the
Mortgage Loans and/or the Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set forth
in the Prospectus Supplement and the Memorandum (as defined in Section 9)
under the headings "Summary of Prospectus Supplement--The Mortgage Loans",
"Risk Factors--The Mortgage Loans" and "Description of the Mortgage Pool",
set forth on Annex A to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on the
Diskette, does not contain any untrue statement of a material fact or (in the
case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or filing
with, or notice to, any governmental authority or court is required, under
federal or state law (including, with respect to any bulk sale laws), for the
execution, delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction contemplated
hereby, other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in connection
with the Seller's sale of the Mortgage Loans to the Purchaser, (2) such
consents, approvals, authorizations, qualifications, registrations, filings
or notices as have been obtained or made and (3) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of State of Delaware.
(ii)The execution and delivery of this Agreement by the Purchaser, and the
performance of, and compliance with, the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv)This Agreement, assuming due authorization, execution and delivery by
the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and delivery of
this Agreement and its performance of, and compliance with, the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the Purchaser.
(vi)No litigation is pending or, to the best of the Purchaser's knowledge,
threatened against the Purchaser which would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of
the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker, agent
or other person, other than the Seller, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans
or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by the Purchaser with this Agreement, or the consummation by the
Purchaser of any transaction contemplated hereby, other than (1) such
consents, approvals, authorizations, qualifications, registrations, filings
or notices as have been obtained or made and (2) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Upon discovery by any of the parties hereto of any Defect (as defined
in the Pooling and Servicing Agreement) in respect of the Mortgage File for any
Mortgage Loan or a breach of any representation or warranty made pursuant to
Section 4(a) and set forth in Exhibit C, which Defect or breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Servicer (or the Special Servicer in the case of a Specially Serviced Mortgage
Loan) or the Trustee. Within 90 days of receipt of notice by the Seller, from
the Servicer, the Special Servicer or the Trustee of such breach or Defect, the
Seller shall cure such Defect or breach, as the case may be, in all material
respects or repurchase the affected Mortgage Loan from the then owner(s) thereof
at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement), on a whole-loan, servicing released basis, by payment of such
Purchase Price by wire transfer of immediately available funds to the account
designated by such owner(s); provided, however, that in lieu of effecting any
such repurchase, the Seller will be permitted to deliver a Qualifying Substitute
Mortgage Loan and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to the terms and conditions of the Pooling and
Servicing Agreement. Conveyance of such Mortgage Loans shall be made free and
clear of all Liens and encumbrances created or suffered by the Purchaser or any
subsequent holder.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 86OG(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender
promptly or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to cure, to repurchase, or to substitute for, any Mortgage Loan in
accordance with Section 6(a) or 6(b) or disputes its obligation to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with either
such subsection, the Purchaser or its successors and assigns may take such
action as is appropriate to enforce such payment or performance, including,
without limitation, the institution and prosecution of appropriate proceedings.
To the extent the Purchaser prevails in such proceeding, the Seller shall
reimburse the Purchaser for all necessary and reasonable costs and expenses
incurred in connection with the enforcement of such obligation of the Seller to
cure, to repurchase, or to substitute for, any Mortgage Loan in accordance with
Section 6(a) or 6(b).
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, Wickersham & Taft, 100 Maiden Lane,
New York, New York 10038 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the Aggregate
Cut-off Date Balance shall be within the range permitted by Section 1 of this
Agreement;
(ii)All documents specified in Section 8 (the "Closing Documents"), in such
forms as are agreed upon and acceptable to the Purchaser, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee, the
Purchaser or the Purchaser's designee, as the case may be, all documents and
funds required to be so delivered pursuant to Section 2;
(iv)The result of any examination of the Mortgage Files and Servicing Files
performed by or on behalf of the Purchaser pursuant to Section 3 shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and conditions
and perform all duties and obligations required to be complied with or
performed after the Closing Date;
(vi)The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) A Certificate substantially in the form of Exhibit D-1 hereto, executed
by the General Partners of the Seller, and dated the Closing Date, and upon
which the Purchaser and each Underwriter may rely, attaching thereto as exhibits
the organizational documents of the Seller;
(c) A certificate of legal existence regarding the Seller from the
Secretary of State for the Commonwealth of Massachusetts, dated not earlier than
30 days prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by the General Partners of the Seller and dated the Closing
Date, and upon which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or the Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Prospectus
Supplement--The Mortgage Loans", "Risk Factors--The Mortgage Loans" and/or
"Description of the Mortgage Pool" or contained on Annex A to the Prospectus
Supplement (exclusive of the Loan Detail), and such information does not
represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth in or made pursuant to Section 4;
provided, that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement of a material fact or omission of a
material fact necessary to make the statements made, in light of the
circumstances in which they were made, not misleading, was made as a result of
an error in the manipulation of, or calculations based upon, the Loan Detail.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated March 16,
1998, as supplemented by the prospectus supplement dated March 24, 1998 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 24, 1998, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation 1, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "Indemnified Party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "Indemnifying Party") under this Section 9, notify
the Indemnifying Party in writing of the commencement thereof; but the omission
to notify the Indemnifying Party will not relieve it from any liability that it
may have to any Indemnified Party otherwise than under this Section 9. In case
any such action is brought against any Indemnified Party and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or Indemnified Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Indemnified Parties. Upon receipt of notice from the
Indemnifying Party to such Indemnified Party of its election to assume the
defense of such action and approval by the Indemnified Party of counsel, which
approval will not be unreasonably withheld, the Indemnifying Party will not be
liable for any legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof, unless (i) the Indemnified Party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
Indemnifying Party, representing all the Indemnified Parties under Section 9(a)
and Section 1 of the Underwriting Agreement who are parties to such action),
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party has authorized the employment of counsel for the Indemnified
Party at the expense of the Indemnifying Party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii). Unless it shall assume the defense of
any proceeding, the Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there shall be a
final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party, but only to the extent provided in paragraph (a) of this
Section 9, from and against any loss or liability by reason of such settlement
or judgment. If the Indemnifying Party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed, or, if such
settlement provides for release of the Indemnified Party in connection with all
matters relating to the proceeding which has been asserted against the
Indemnified Party in such proceeding by the other parties to such settlement,
without the consent of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Indemnified
Party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
certified mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to Deutsche Mortgage & Asset Receiving Corporation, One
International Place, Room 520, Boston, Massachusetts 02110, Attention: R.
Douglas Donaldson, facsimile no. (617) 951-7650, with a copy to Anna H. Glick,
Esq., Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
facsimile no. (212) 504-6666, or such other address or facsimile number as may
hereafter be furnished to the Seller in writing by the Purchaser; and if to the
Seller, addressed to Boston Capital Mortgage Company Limited Partnership, One
Boston Place, Boston, Massachusetts 02108, Attention: J. Kingsley Greenland,
facsimile no. (617) 624-8799, or to such other address or facsimile number as
the Seller may designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
BOSTON CAPITAL MORTGAGE COMPANY
LIMITED PARTNERSHIP
By: Boston Capital Mortgage Corporation, a
general partner
By: -----------------------------------
Name:
Title:
By: Llama Mortgage Services Corporation,
a general partner
By: -----------------------------------
Name:
Title:
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION
By: ----------------------------------------
Name:
Title:
<PAGE>
EXHIBIT H-1
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 1, 1998, between Boston Capital Mortgage Company Limited
Partnership, as seller (the "Seller"), and Deutsche Mortgage & Asset Receiving
Corporation, as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch
IBCA, Inc. and Moody's Investors Service, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of March 1, 1998
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor, Banc
One Mortgage Capital Markets, LLC, as servicer (in such capacity, the
"Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle National Bank, as trustee (in such capacity, the "Trustee"), and ABN
AMRO Bank N.V., as fiscal agent. Capitalized terms not otherwise defined herein
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to Deutsche
Morgan Grenfell Inc., Morgan Stanley & Co. Incorporated and Llama Company, L.P.
(together, the "Underwriters") pursuant to an underwriting agreement dated March
24, 1998 (the "Underwriting Agreement"). The Purchaser intends to sell the
remaining Certificates (the "Non-Registered Certificates") pursuant to a
certificate purchase agreement dated March 24, 1998 (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 30, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on March 1, 1998 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$160,563,918.00, subject to a variance of plus or minus 5%. The purchase price
for the Mortgage Loans shall be determined and paid to the Seller in accordance
with the terms of an allocation agreement dated March 24, 1998 (the "Allocation
Agreement"), to which the Seller and Purchaser, among others, are parties.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdbacks in accordance with the Allocation Agreement) and the
issuance of the Certificates, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse, all the right,
title and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, including all interest and principal
received or receivable by the Seller on or with respect to the Mortgage Loans
after the Cut-off Date, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans; provided, however, that in the case of any Mortgage Loan with an
Anticipated Repayment Date prior to maturity (each an "ARD Loan") accruing
Excess Interest at an annual rate of greater than 2%, such ARD Loan shall be
deemed to have been modified to provide that, as of the Cut-off Date, such ARD
Loan shall accrue Excess Interest at an annual rate of no more than 2%;
provided, further, that with respect to such limitation of Excess Interest, the
related borrowers shall be third-party beneficiaries of such modification of
such ARD Loan. The Purchaser shall be entitled to (and, to the extent received
by or on behalf of the Seller, the Seller shall deliver or cause to be delivered
to or at the direction of the Purchaser) all scheduled payments of principal,
and interest due thereon, due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date; provided, however, that all scheduled payments of principal, and
interest accrued but not paid or due thereon, due on or before the Cut-off Date
and collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Note referred to in clause (i) of Exhibit B has been delivered by the
Seller with respect to each such Mortgage File. In the event Seller fails to so
deliver each such Mortgage File to the Trustee, the Purchaser and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law. If the Seller 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 clauses (ii),
(iv), (viii), (xi)(A) and (xii) of Exhibit B, 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 this Section 2(b) 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 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 Trustee, 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 or at the direction of the Purchaser (or any
subsequent owner of the affected Mortgage Loan, including without limitation the
Trustee) within 180 days of the Closing Date (or within such longer period after
the Closing Date as the Purchaser (or such subsequent owner) may consent to,
which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
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
clause (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Seller has delivered to the
Trustee a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B covering all the
Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdbacks
in accordance with the Allocation Agreement) has been received by the Seller and
the issuance of the Certificates, the Trustee shall be authorized to release to
the Purchaser or its designee all of the Mortgage Files in the Trustee's
possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B but that are reasonably required to
service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller shall deliver a copy of the related
Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
(f) It is further acknowledged and agreed by the Seller that the Purchaser
intends to convey all right, title and interest of the Purchaser in and to the
Mortgage Loans and all rights and remedies under this Agreement to the Trustee,
including, without limitation, all rights and remedies as may be available under
applicable law to the Purchaser in the event of a breach of a representation or
warranty pursuant to Section 4(a) hereof or in the event of a Defect; provided,
that the Trustee shall be a third-party beneficiary of this Agreement and shall
be entitled to enforce any obligations of the Mortgage Loan Seller hereunder in
connection with a breach of any such representation or warranty or a Defect as
if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), each of
the representations and warranties set forth in Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited partnership duly organized and
validly existing under the laws of the Commonwealth of Massachusetts,
and is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance of, and compliance with, the terms of this
Agreement by the Seller, will not violate the Seller's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it
is a party or which is applicable to it or any of its assets, in each
case which materially and adversely affect the ability of the Seller to
carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers, and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
(viii) Except with respect to Llama Company, L.P., an
affiliate of the Seller, serving as an Underwriter neither the Seller
nor anyone acting on its behalf has (A) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in
any Certificate or any other similar security to any person in any
manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (D) made any general
solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of
any of the acts described in clauses (A) through (E) above) would
constitute or result in a violation of the Securities Act or any state
securities law relating to or in connection with the issuance of the
Certificates or require registration or qualification pursuant to the
Securities Act or any state securities law of any Certificate not
otherwise intended to be a Registered Certificate. In addition, the
Seller will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any of the Certificates or interests therein. For purposes
of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans
or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-1 through A-23, inclusive, of Annex A
to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (as defined in Section 9)
under the headings "Summary of Prospectus Supplement--The Mortgage
Loans", "Risk Factors--The Mortgage Loans" and "Description of the
Mortgage Pool", set forth on Annex A to the Prospectus Supplement and
(to the extent it contains information consistent with that on such
Annex A) set forth on the Diskette, does not contain any untrue
statement of a material fact or (in the case of the Memorandum, when
read together with the other information specified therein as being
available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(x) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby,
other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the
Purchaser, (2) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained
or made and (3) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance of, and compliance with, the terms of
this Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance of, and compliance
with, the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchasers and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Upon discovery by any of the parties hereto of any Defect (as defined
in the Pooling and Servicing Agreement) in respect of the Mortgage File for any
Mortgage Loan or a breach of any representation or warranty made pursuant to
Section 4(a) and set forth in Exhibit C, which Defect or breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Servicer (or the Special Servicer in the case of a Specially Serviced Mortgage
Loan) or the Trustee. Within 90 days of receipt of notice by the Seller, from
the Servicer, the Special Servicer or the Trustee of such breach or Defect, the
Seller shall cure such Defect or breach, as the case may be, in all material
respects or repurchase the affected Mortgage Loan from the then owner(s) thereof
at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement), on a whole-loan, servicing released basis, by payment of such
Purchase Price by wire transfer of immediately available funds to the account
designated by such owner(s); provided, however, that in lieu of effecting any
such repurchase, the Seller will be permitted to deliver a Qualifying Substitute
Mortgage Loan and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to the terms and conditions of the Pooling and
Servicing Agreement. Conveyance of such Mortgage Loans shall be made free and
clear of all Liens and encumbrances created or suffered by the Purchaser or any
subsequent holder.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 86OG(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender
promptly or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to cure, to repurchase, or to substitute for, any Mortgage Loan in
accordance with Section 6(a) or 6(b) or disputes its obligation to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with either
such subsection, the Purchaser or its successors and assigns may take such
action as is appropriate to enforce such payment or performance, including,
without limitation, the institution and prosecution of appropriate proceedings.
To the extent the Purchaser prevails in such proceeding, the Seller shall
reimburse the Purchaser for all necessary and reasonable costs and expenses
incurred in connection with the enforcement of such obligation of the Seller to
cure, to repurchase, or to substitute for, any Mortgage Loan in accordance with
Section 6(a) or 6(b).
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, Wickersham & Taft, 100 Maiden Lane,
New York, New York 10038 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and
the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, the Purchaser or the Purchaser's designee, as the case may be,
all documents and funds required to be so delivered pursuant to Section
2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been
complied with, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to
be complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees,
costs and expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) A Certificate substantially in the form of Exhibit D-1 hereto, executed
by the General Partners of the Seller, and dated the Closing Date, and upon
which the Purchaser and each Underwriter may rely, attaching thereto as exhibits
the organizational documents of the Seller;
(c) A certificate of legal existence regarding the Seller from the
Secretary of State for the Commonwealth of Massachusetts, dated not earlier than
30 days prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by the General Partners of the Seller and dated the Closing
Date, and upon which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or the Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Prospectus
Supplement--The Mortgage Loans", "Risk Factors--The Mortgage Loans" and/or
"Description of the Mortgage Pool" or contained on Annex A to the Prospectus
Supplement (exclusive of the Loan Detail), and such information does not
represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth in or made pursuant to Section 4;
provided, that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement of a material fact or omission of a
material fact necessary to make the statements made, in light of the
circumstances in which they were made, not misleading, was made as a result of
an error in the manipulation of, or calculations based upon, the Loan Detail.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated March 16,
1998, as supplemented by the prospectus supplement dated March 24, 1998 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 24, 1998, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation 1, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "Indemnified Party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "Indemnifying Party") under this Section 9, notify
the Indemnifying Party in writing of the commencement thereof; but the omission
to notify the Indemnifying Party will not relieve it from any liability that it
may have to any Indemnified Party otherwise than under this Section 9. In case
any such action is brought against any Indemnified Party and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or Indemnified Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Indemnified Parties. Upon receipt of notice from the
Indemnifying Party to such Indemnified Party of its election to assume the
defense of such action and approval by the Indemnified Party of counsel, which
approval will not be unreasonably withheld, the Indemnifying Party will not be
liable for any legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof, unless (i) the Indemnified Party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
Indemnifying Party, representing all the Indemnified Parties under Section 9(a)
and Section 1 of the Underwriting Agreement who are parties to such action),
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party has authorized the employment of counsel for the Indemnified
Party at the expense of the Indemnifying Party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii). Unless it shall assume the defense of
any proceeding, the Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there shall be a
final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party, but only to the extent provided in paragraph (a) of this
Section 9, from and against any loss or liability by reason of such settlement
or judgment. If the Indemnifying Party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed, or, if such
settlement provides for release of the Indemnified Party in connection with all
matters relating to the proceeding which has been asserted against the
Indemnified Party in such proceeding by the other parties to such settlement,
without the consent of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Indemnified
Party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
certified mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to Deutsche Mortgage & Asset Receiving Corporation, One
International Place, Room 520, Boston, Massachusetts 02110, Attention: R.
Douglas Donaldson, facsimile no. (617) 951-7650, with a copy to Anna H. Glick,
Esq., Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
facsimile no. (212) 504-6666, or such other address or facsimile number as may
hereafter be furnished to the Seller in writing by the Purchaser; and if to the
Seller, addressed to Boston Capital Mortgage Company Limited Partnership, One
Boston Place, Boston, Massachusetts 02108, Attention: J. Kingsley Greenland,
facsimile no. (617) 624-8799, or to such other address or facsimile number as
the Seller may designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto.
Section 13. Representations, warranties and agreements to survive delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
<PAGE>
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
BOSTON CAPITAL MORTGAGE COMPANY LIMITED
PARTNERSHIP
By: Boston Capital Mortgage
Corporation, a general partner
By:----------------------------
Name:
Title:
By: Llama Mortgage Services
Corporation, a general partner
By:----------------------------
Name:
Title:
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: ------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, 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;
(e) the Stated Principal Balance as of the Cut-off Date;
(f) (A) the 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) whether such Mortgage Loan has an Anticipated Repayment
Date;
(i) the Primary Servicing Fee Rate;
(j) whether the Mortgage Loan is an Actual/360 Loan or an
Actual/365 Loan; and
(k) whether such Mortgage Loan is a Healthcare 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. Certain of the above-referenced items are described on the
Mortgage Loan Schedule attached hereto. Certain of the above-referenced items
are described on Exhibit B-1 and Exhibit B-2 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
<PAGE>
Cut-Off Date
Loan Loan Principal
Seller Number Property Name Balance
- ------ ------ ------------- -------
BCMC 2727 One Alewife Place 19,169,231
BCMC 2831 MetroNorth Business Center 16,950,000
BCMC 2638 Aggregate Loan Level Information 16,338,514
BCMC 26381 Springdale Manor
BCMC 26382 333 Bolivar Street Office Building
BCMC 2307 1400 Worcester Street 7,983,324
BCMC 1006-I Aggregate Loan Level Information 7,948,840
BCMC 1006-IA Town Center East
BCMC 1006-IB Town Center Post Office
BCMC 1006-IC Highlands Post Office
BCMC 1006-ID Town Center West
BCMC 1006-IE All-In-One-Convenience
BCMC 1006-IF Hospitality Center
BCMC 1006-IG Sugar Creek Center
BCMC 1006-IH A.G. Edwards and Sons
BCMC 1006-II Cunningham Corner
BCMC 1006-IJ Central Station Convenience
BCMC 1004 Aggregate Loan Level Information 5,702,558
BCMC 1004A Branson Executive Office Park I
BCMC 1004B Branson Executive Office Park II
BCMC 1004C The Station Retail Center
BCMC 1004D McGuffey's Restaurant
BCMC 1004E Corporate Woods
BCMC 1004F 802 South Highway 13
BCMC 1004G 610 North Ridgeview Drive
BCMC 1004H Springfield Probation and
Parole Office Building
BCMC 1004I Branson Probation/Parole Building
BCMC 2397 Office Court at Walton Point 5,485,120
BCMC 2655 Park Central Shopping Center 4,275,000
BCMC 2610 Wichita Square Shopping Center 4,125,000
BCMC 2600 Springbrook Commons Apartments 3,841,251
BCMC 2639 Stonebridge Apartments 3,828,793
BCMC 2511 The Willard Building 3,794,182
BCMC 1006-II Aggregate Loan Level Information 3,691,817
BCMC 1006-II1 Cordoba Center
BCMC 1006-II2 Ponderosa Center
BCMC 1006-II3 DeSoto Center
BCMC 1006-II4 Old Lot Sales Building
BCMC 2746 Lake Place Shopping Center 3,686,056
BCMC 2594 Northstar Center 3,500,000
BCMC 2601 Metropolitan Center North 3,250,000
BCMC 2571 Borders Books and Music 3,219,943
BCMC 2697 189 Dean Street 3,200,000
BCMC 2793 Souderton Square Shopping Center 3,000,000
BCMC 2794 Morrisville Square Shopping Center 3,000,000
BCMC 2391 253 Williams Street 2,950,000
BCMC 2403 Mitsubishi 2,793,814
BCMC 1006-IV Aggregate Loan Level Information 2,716,187
BCMC 1006-IV1 Chota Center
BCMC 1006-IV2 Tennessee Mountain Market
BCMC 1006-IV3 Village Square
BCMC 1006-IV4 Mialaquo Center
BCMC 2675 Chart House Office Building 2,594,130
BCMC 2289 Groton Townhouse Apartments 2,566,596
BCMC 2437 260 Second Street 2,391,035
BCMC 2795 Doubletree/Blockbuster Center 2,362,500
BCMC 2158 Regency Plaza 2,291,627
BCMC 2528 West Crest Apartments 2,095,026
BCMC 2516 Granite Mall 2,000,000
BCMC 2385 428 Hudson River Road 1,901,444
BCMC 2157 Colonial Village Shopping Center 1,889,974
BCMC 1755 Ruffin Road Office Park 1,556,633
BCMC 1001 Moberly Center I & II 1,243,475
BCMC 2658 Abbott Point Apartments 1,200,000
BCMC 2785 Old Montecito Firehouse 1,200,000
BCMC 1006-III Aggregate Loan Level Information 821,846
BCMC 1006-III1 La Plaza Building
BCMC 1006-III2 La Plaza Texaco & Convenience Store
Total 160,563,918
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(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, Mortgage Pass-Through
Certificates, Series 1998-C1, 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;
(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) 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
Trustee, if any, in each case with evidence of
recording thereon;
(v) an original assignment of any related 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;
(vi) 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;
(vii) 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;
(viii) 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, Note or any related security document have
been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title
insurance policy issued 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;
(x) the original or a copy of any guaranty of the
obligations of the mortgagor under the Mortgage Loan
together with (A) if applicable, the 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;
(xi) (A) file 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 mortgagor at the Mortgaged Property (in each
case with evidence of filing thereon) and which were
in the possession of the 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
Seller, a UCC financing statement executed by the
most recent assignee of record prior to the Trustee
or, if none, by the Originator, evidencing the
transfer of such security interest, either in blank
or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate)
granted by the Mortgagor if the Mortgage, Note or
other document or instrument referred to above was
signed on behalf of the Mortgagor pursuant to such
power of attorney;
(xiii) if the Mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground lease
or a copy thereof;
(xiv) the original of the Loan Agreement or counterpart
thereof relating to such Mortgage Loan, if any;
(xv) copies of the original Environmental Reports of the
Mortgaged Properties made in connection with
origination of the Mortgage Loans, if any;
(xvi) copies of the original Management Agreements, if any,
for the Mortgaged Property;
(xvii) 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;
(xviii) 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-1
financing statements, if any, submitted for filing
with respect to the Mortgage Loan Seller's security
interest in the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts and all funds
contained therein (and UCC-3 financing statements
assigning such security interest to the Trustee on
behalf of the Certificateholders); and
(xix) any other written agreements related to the Mortgage
Loan.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Note, Mortgage or other loan document relating to such Mortgage Loan prohibits
or restricts the Seller's right to assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such Mortgage
Loan set forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not delinquent as of the
Cut-off Date (giving effect to any applicable grace periods), and has not been
during the twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving effect
to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid first
lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. If the Mortgaged Property is operated as a nursing
facility, a hospitality property or a multifamily property, the Mortgage,
together with any separate security agreement, similar agreement and UCC
financing statement, if any, establishes and creates a first priority, perfected
security interest, to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. To the Seller's
actual knowledge, the insurer that issued such Title Policy is qualified to do
business in the state in which the related Mortgaged Property is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Except with respect to provisions relating
to default interest, yield maintenance charges and prepayment premiums, such
Mortgage Loan complied with all applicable usury laws in effect at its date of
origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Note and Mortgage and all other documents
and instruments evidencing, guaranteeing, insuring or otherwise securing such
Mortgage Loan have been duly and properly executed by the parties thereto, and
each is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or affecting
the rights of creditors generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and excluding provisions relating to default interest, yield
maintenance charges or prepayment premiums.
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured against loss by hazards of extended coverage in an amount (subject to a
customary deductible) at least equal to the lesser of (1) the outstanding
principal balance of such Mortgage Loan, (2) 100% of the full replacement cost
of the improvements located on such Mortgaged Property and (3) the full
insurable actual cash value of such improvements, and the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the improvements on the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable actual cash value of such Mortgaged Property, (3) the maximum amount
of insurance available under the National Flood Insurance Act of 1968, as
amended, and (4) 100% of the replacement cost of the improvements located on
such Mortgaged Property. The Mortgage requires the Mortgagor to maintain such
insurance in respect of the Mortgaged Property in addition to comprehensive
general liability insurance in amounts generally required by the Seller, and at
least six months rental or business interruption insurance. All such insurance
required by the Mortgage to be maintained is in full force and effect and names
the Originator, the Seller or their respective successors or assigns as
mortgagee, loss payee or additional insured. Each such insurance policy requires
prior notice to the holder of the Mortgage of termination or cancellation, and
no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments, studies or reviews (or an update
of a previously conducted assessment, study or review), which was (were)
performed on behalf of the Seller, or as to which the related report was
delivered to the Seller in connection with its origination or acquisition of
such Mortgage Loan; and the Seller, having made no independent inquiry other
than reviewing the resulting report(s) or studies and/or employing an
environmental consultant to perform or review the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s) or studies. The Seller has not taken any action with respect
to such Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Note have not been impaired, waived, altered or modified in any material
respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
assessments for improvements or other similar outstanding charges affecting the
related Mortgaged Property which are or may become a lien of priority equal to
or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except with respect to
Mortgage Loans the Mortgagor of which is a lessee under a ground lease of a
Mortgaged Property or a combination of a ground lease and a fee simple interest,
the interest of the related Mortgagor in the related Mortgaged Property consists
of a fee simple estate in real property.
(xix) Whole Loan. Except as set forth on Schedule C-1 hereto, each Mortgage
Loan is a whole loan.
(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee. The Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted Encumbrances,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, subleases, licenses or other
agreements, to the extent permitted by law, pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same, to the extent permitted by law. The related assignment of
any Assignment of Leases, not included in a Mortgage, executed and delivered in
favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Assignment of
Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the Title Policy referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel, endorsement to such Title Policy and/or other
due diligence customarily performed by the Seller, the improvements located on
or forming part of such Mortgaged Property comply in all material respects with
applicable zoning laws and ordinances (except to the extent that they may
constitute legal nonconforming uses).
(xxiv) No Material Default. (A) To the Seller's knowledge, there exists no
material default, breach or event of acceleration under the related Mortgage or
Note, and (B) the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller herein.
(xxv) Inspection. In connection with the origination or acquisition of each
Mortgage Loan, the Seller inspected or caused to be inspected (either directly
by the Seller, by its correspondent or by a third party) the Mortgaged Property.
(xxvi) No Equity Participation or Contingent Interest. Except for any
related Excess Interest, the Mortgage Loan contains no equity participation by
the lender, and does not provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxvii) No Advances of Funds. No holder of the Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property (other than a tenant required to make its lease payments directly to
the holder of the related Mortgage Loan), directly or indirectly, for the
payment of any amount required by the Mortgage Loan.
(xxviii) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, (i) the
related Mortgagor or operator of the related Mortgaged Property was in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related Mortgaged
Property as it was then operated, and, (ii) if a related Mortgaged Property is
improved by a skilled nursing, congregate care or assisted living facility, the
most recent inspection or survey by governmental authorities having jurisdiction
in connection with such licenses, permits and authorizations did not cite such
Mortgaged Property for material violations (which shall include only "Level IV"
(or equivalent) violations in the case of skilled nursing facilities) that had
not been cured or as to which a plan of correction had not been submitted to and
accepted by such governmental authorities. To the extent such facility
participates in Medicaid or Medicare, the Seller has not received any notice
that such facility is not in compliance in all material respects with the
requirements of such program, such that such facility's continued participation
in such program be adversely affected.
(xxix) Servicing. The servicing and collection practices used by Seller and
its designees with respect to the Mortgage Loan have been in all material
respects legal, proper and prudent and have met industry standards for servicing
of commercial mortgage loans.
(xxx) Customary Remedies. The related Mortgage or Note, together with
applicable state law, contains customary and enforceable provisions (subject to
the exceptions set forth in paragraph (xii)) such as to render the rights and
remedies of the holders thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
(xxxi) The indebtedness evidenced by a Mortgage Loan is not convertible to
an ownership interest in the related Mortgaged Property or the related
Mortgagor.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property, or to repay the principal of the
Mortgage Loan.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.86OG-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvi) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest, either (1) the ground
lessor's fee interest is subordinated to the lien of the Mortgage or (2) the
following apply to such Ground Lease:
(a) To the actual knowledge of the Seller, such Ground Lease or
a memorandum thereof has been or will be duly recorded; such
Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor)
permits the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan, with the
exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the ground lessor's
related fee interest and Permitted Encumbrances;
(c) Except as set forth on Schedule C-1 hereto, the Mortgagor's
interest in such Ground Lease is assignable to the Purchaser
and its successors and assigns upon notice to, but (except
in the case where such consent cannot be unreasonably
withheld) without the consent of, the lessor thereunder (or,
if such consent is required, it has been obtained prior to
the Closing Date) and, in the event that it is so assigned,
is further assignable by the Purchaser and its successors
and assigns upon notice to, but without the need to obtain
the consent of, such lessor (except in the case where such
consent cannot be unreasonably withheld);
(d) Such Ground Lease is in full force and effect, and the
Seller has received no notice that an event of default has
occurred thereunder, and, to the Seller's actual knowledge,
there exists no condition that, but for the passage of time
or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice
of any default by the lessee to the mortgagee, provided that
the mortgagee has provided the lessor with notice of its
lien in accordance with the provisions of such Ground Lease,
and such Ground Lease, or an estoppel letter or other
agreement, further provides that no notice of termination
given under such Ground Lease is effective against the
mortgagee unless a copy has been delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground
Lease) to cure any default under such Ground Lease, which is
curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground
Lease;
(g) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less
than ten years beyond the Stated Maturity Date of the
related Mortgage Loan;
(h) Except as set forth on Schedule C-1 hereto, under the terms
of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds other than in
respect of a total or substantially total loss or taking,
will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan together
with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as commercially
unreasonable by the Seller; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee,
or in any manner, which would materially adversely affect
the security provided by the related Mortgage; and
(j) Except as set forth on Schedule C-1 hereto, such Ground
Lease requires the lessor to enter into a new lease with the
Seller or its successors or assigns in the event of a
termination of the Ground Lease by reason of a default by
the Mortgagor under the Ground Lease, including rejection of
the Ground Lease in a bankruptcy proceeding.
(xxxvii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxviii) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of a
release price, the related Note or Mortgage does not require the holder thereof
to release all or any portion of the Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xxxix) Junior Liens. Except as set forth on Schedule C-1 hereto, the
Mortgage Loan does not permit the related Mortgaged Property to be encumbered by
any lien junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof or the satisfaction of
debt service coverage or similar conditions specified therein.
(xl) Due-On-Sale; Due-On-Encumbrance. Except as set forth in Schedule C-1
hereto, each related Mortgage or Loan Agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of the Mortgage or Loan
Agreement, the related Mortgaged Property, or any interest therein, is directly
or indirectly transferred or sold (except for a one-time transfer), or
encumbered in connection with subordinate financing.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is not
a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Defeasance Provisions. Any Mortgage Loan which contains a provision
for any defeasance of mortgage collateral either (A) requires the consent of the
holder of the Mortgage Loan to any defeasance, or (B) permits defeasance (i) no
earlier than two years after the Closing Date (as defined in the Pooling and
Servicing Agreement, dated as of March 1, 1998), (ii) only with substitute
collateral constituting "government securities" within the meaning of Treas.
Reg. ss. 1.86OG-2(a)(8)(i), and (iii) only to facilitate the disposition of the
Mortgaged Property and not as a part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
(xliii) Release or Substitution of Collateral. Such Mortgage Loan does not
permit the release or substitution of collateral if such release or substitution
(a) would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (without regard to clauses (A)(i) or (A)(ii) thereof).
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
<PAGE>
BCMC
----
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND
WARRANTIES OF SELLER REGARDING
THE INDIVIDUAL MORTGAGE LOANS
The following Mortgage Loans are excepted from the representations and
warranties contained in the corresponding paragraph in Exhibit C:
(v) and (xxxv) - BCMC Loan #2307 - $8,000,000
A lis pendens has been filed by a partner of a former owner of the
property in connection with a lawsuit which challenges the validity of
a foreclosure sale of the property. An indemnity in the amount of
$10,700,000 runs from GECC to the title company, the then lender and
any successor holders of the loan for any loss suffered in connection
with a successful prosecution of litigation. In addition, the title
policy insures BCMC and its successors against a reversion of title.
(xxxvi(2)(j) - BCMC Loan #2746 - $3,690,000
The Ground Lease does not require lesser to enter into a new lease in the event
of a termination of the Ground Lease.
OTHER LOAN DISCLOSURES (but do not fit in the exceptions to Exhibit C)
1) BCMC Loan #2600 - $3,850,000
An affiliate of Boston Capital Mortgage Company Limited
Partnership is a special limited partner in this Section 42
Tax Credit Loan (LIHTC) and participates in the equity.
2) BCMC Loans #1006-I, 1006-II, 1006-III and 1006-IV;
The loans allow the Borrower to partially prepay 25% of the
loan amount without penalty or yield maintenance after the
lockout period.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of [SELLER]
----------------------------------
I, ---------------------------, a ------------------------------------ of
- ---------------------- (the "Seller"), hereby certify as follows:
The Seller is a corporation duly organized and validly existing under the
laws of the State of ----------.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Seller, which Certificate of Incorporation
and By-Laws are on the date hereof, and have been at all times in full force and
effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified officer
or authorized signatory of the Seller and his or her genuine signature is set
forth opposite his or her name:
Name Office Signature
---- ------ ---------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
- ---------- --, 1998.
By:
----------------------------
Name:
Title:
I, [name], [title], hereby certify that ---------- is a duly elected or
appointed, as the case may be, qualified and acting ---------- of the Seller and
that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
- ---------- --, 1998.
By:
----------------------------
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of [SELLER]
-----------------------
In connection with the execution and delivery by ----------------------
(the "Seller") of, and the consummation of the transaction contemplated by, that
certain Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this ----- day of ----------, 1998.
[SELLER]
By:
----------------------------
Name:
Title:
<PAGE>
EXHIBIT D-3A
FORM OF CORPORATE OPINION OF SELLER
March 1, 1998
Addressees Listed on Schedule A
Re: Deutsche Mortgage & Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates, Series
1998 C-1
-----------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the "Mortgage Loan
Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
(the "Depositor") and --------------------------------------, a --------------
corporation (the "Seller"), relating to the sale by the Seller and the purchase
by the Depositor of the Mortgage Loans. We have acted as special counsel to the
Seller in connection with the aforementioned transaction. Capitalized terms used
herein but not defined herein have the respective meanings given them in the
Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Mortgage Loan Purchase Agreement, and such certificates,
corporate and public records, agreements and instruments and other documents,
including, among other things, the documents delivered on the Closing Date, as
we have deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to any facts
material to such opinions that were not known to us, we have relied upon
statements and representations of officers and other representatives of the
Seller.
We have also assumed (other than with respect to the Seller) that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments, and
that such documents, agreements and instruments are valid, binding and
enforceable obligations of such parties. As used herein, "to our knowledge"
means the conscious awareness, without independent investigation, of facts or
other information by any lawyer in our firm actively involved in the
transactions contemplated by the Mortgage Loan Purchase Agreement.
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and [-------------------], where expressly
referred to herein, the federal laws of the United States of America (in each
case without regard to conflicts of laws principles).
Based upon and subject to the foregoing, we are of the opinion that:
1. The Seller is a corporation validly existing under the laws
of the State of ----------------, with full corporate power and
authority to execute, deliver and perform its obligations under the
Mortgage Loan Purchase Agreement and all the transactions contemplated
thereby, including, but not limited to, the power and authority to
sell, assign and transfer the Mortgage Loans in accordance with the
Mortgage Loan Purchase Agreement, the Seller has taken all necessary
action to authorize the execution, delivery and performance of the
Mortgage Loan Purchase Agreement by it, and the Mortgage Loan Purchase
Agreement has been duly authorized, executed and delivered by it.
2. The Mortgage Loan Purchase Agreement is the legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and by general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and except to the extent rights to indemnity and
contribution may be limited by applicable law.
3. The execution and delivery of the Mortgage Loan Purchase
Agreement by the Seller and the performance of its obligations under
the Mortgage Loan Purchase Agreement will not conflict with any
provision of any law or regulation to which the Seller is subject, or
conflict with, result in a breach of or constitute a default under any
of the terms, conditions or provisions of the Seller's organizational
documents or by-laws or, to our knowledge, any material agreement or
instrument to which the Seller is a party or by which it is bound, or,
to our knowledge, any order or decree applicable to the Seller, or
result in the creation or imposition of any lien on any of the Seller's
assets or property, in each case which would materially and adversely
affect the ability of the Seller to perform its obligations under the
Mortgage Loan Purchase Agreement.
4. To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Seller in
any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Seller to perform
its obligations under the Mortgage Loan Purchase Agreement.
5. To our knowledge, the Seller is not in default with respect
to any order or decree of any court or any order, regulation or decree
of any federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely affect its
ability to perform its obligations under the Mortgage Loan Purchase
Agreement.
6. To our knowledge, no consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Seller of or compliance by
the Seller with the Mortgage Loan Purchase Agreement or the
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement, other than those which have been obtained by the
Seller.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
Schedule A
----------
Deutsche Mortgage & Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
<PAGE>
EXHIBIT D-3B
FORM OF 10b-5 LETTER
March 1, 1998
Deutsche Mortgage and Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
Ladies and Gentlemen:
This letter being delivered to you pursuant to Section 8(e) of the Mortgage
Loan Purchase Agreement, dated March 1, 1998 (the "Mortgage Loan Purchase
Agreement"), between Deutsche Mortgage and Asset Receiving Corporation (the
"Depositor"), and -------------------------- (the "Seller"), relating to the
sale by the Seller and the purchase by the Depositor of certain commercial and
multifamily mortgage loans (the "Mortgage Loans"). The Depositor will assign and
transfer the Mortgage Loans to a trust fund created pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), among the Depositor, Banc One Mortgage Capital Markets, LLC, as
servicer (the "Servicer") and as special servicer (the "Special Servicer"), and
LaSalle National Bank, as trustee (the "Trustee"). The Depositor's Commercial
Mortgage Pass-Through Certificates, Series, 1998-C1 (the "Certificates") will be
issued in exchange for the Mortgage Loans pursuant to the terms of the Pooling
and Servicing Agreement. The Class X, Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates (collectively, the "Offered Certificates") are
being offered by the Prospectus dated March 16, 1998 (the "Base Prospectus"), as
supplemented by the Prospectus Supplement dated March [--], 1998 (the
"Prospectus Supplement" and collectively with the Base Prospectus, the
"Prospectus") and the Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class Q-1, Class Q-2, Class R and Class LR Certificates (the "Private
Certificates") are being offered by the Private Placement Memorandum dated March
[-], 1998 (the "Memorandum"). We have acted as special counsel to the Seller in
connection with the aforementioned transaction. [In addition, we have acted as
counsel to the Seller in connection with the origination of the Mortgage Loans.]
Capitalized terms used herein but not defined herein have the respective
meanings given them in the Mortgage Loan Purchase Agreement.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Prospectus or the
Memorandum, and we do not pass upon or assume any responsibility therefor.
However, in the course of our review of the Prospectus and the Memorandum, we
have attended certain conferences and participated in conversations with
representatives of the Seller, the Depositor, representatives of the Depositor,
the Servicer, the Special Servicer and the Trustee. On the basis of the
information which we gained in the course of the representation referred to
above and our examination of the documents referred in this letter, considered
in light of our understanding of applicable law and the experience we have
gained through our practice, nothing has come to our attention in the course of
our review of the Prospectus and Memorandum which causes us to believe that, as
of their respective dates or as of the date hereof, the Prospectus or Memorandum
contained or contain any untrue statement of a material fact or omitted or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
insofar as statements relate to the Mortgage Loans, including, without
limitation, the related mortgaged properties, borrowers and managers; it being
understood that we express no view as to any information incorporated by
reference in the Prospectus or Memorandum or as to the adequacy or accuracy of
the financial, numerical, statistical or quantitative information included in
the Prospectus or Memorandum.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT H-2
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 1, 1998, between ContiTrade Services L.L.C., as seller
(the "Seller"), and Deutsche Mortgage & Asset Receiving Corporation, as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch
IBCA, Inc. and Moody's Investors Service, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of March 1, 1998
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor, Banc
One Mortgage Capital Markets, LLC, as servicer (in such capacity, the
"Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle National Bank, as trustee (in such capacity, the "Trustee"), and ABN
AMRO Bank N.V., as fiscal agent. Capitalized terms not otherwise defined herein
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to Deutsche
Morgan Grenfell Inc., Morgan Stanley & Co. Incorporated and Llama Company, L.P.
(together, the "Underwriters") pursuant to an underwriting agreement dated March
24, 1998 (the "Underwriting Agreement"). The Purchaser intends to sell the
remaining Certificates (the "Non-Registered Certificates") pursuant to a
certificate purchase agreement dated March 24, 1998 (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 30, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on March 1, 1998 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$682,577,438.00, subject to a variance of plus or minus 5%. The purchase price
for the Mortgage Loans shall be determined and paid to the Seller in accordance
with the terms of an allocation agreement dated March 24, 1998 (the "Allocation
Agreement"), to which the Seller and Purchaser, among others, are parties.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdbacks in accordance with the Allocation Agreement) and the
issuance of the Certificates, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse, all the right,
title and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, including all interest and principal
received or receivable by the Seller on or with respect to the Mortgage Loans
after the Cut-off Date, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans; provided, however, that in the case of any Mortgage Loan with an
Anticipated Repayment Date prior to maturity (each an "ARD Loan") accruing
Excess Interest at an annual rate of greater than 2%, such ARD Loan shall be
deemed to have been modified to provide that, as of the Cut-off Date, such ARD
Loan shall accrue Excess Interest at an annual rate of no more than 2%;
provided, further, that with respect to such limitation of Excess Interest, the
related borrowers shall be third-party beneficiaries of such modification of
such ARD Loan. The Purchaser shall be entitled to (and, to the extent received
by or on behalf of the Seller, the Seller shall deliver or cause to be delivered
to or at the direction of the Purchaser) all scheduled payments of principal,
and interest due thereon, due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date; provided, however, that all scheduled payments of principal, and
interest accrued but not paid or due thereon, due on or before the Cut-off Date
and collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Note referred to in clause (i) of Exhibit B has been delivered by the
Seller with respect to each such Mortgage File. In the event Seller fails to so
deliver each such Mortgage File to the Trustee, the Purchaser and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law. If the Seller 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 clauses (ii),
(iv), (viii), (xi)(A) and (xii) of Exhibit B, 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 this Section 2(b) 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 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 Trustee, 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 or at the direction of the Purchaser (or any
subsequent owner of the affected Mortgage Loan, including without limitation the
Trustee) within 180 days of the Closing Date (or within such longer period after
the Closing Date as the Purchaser (or such subsequent owner) may consent to,
which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
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
clause (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Seller has delivered to the
Trustee a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B covering all the
Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdbacks
in accordance with the Allocation Agreement) has been received by the Seller and
the issuance of the Certificates, the Trustee shall be authorized to release to
the Purchaser or its designee all of the Mortgage Files in the Trustee's
possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B but that are reasonably required to
service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller shall deliver a copy of the related
Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
(f) It is further acknowledged and agreed by the Seller that the Purchaser
intends to convey all right, title and interest of the Purchaser in and to the
Mortgage Loans and all rights and remedies under this Agreement to the Trustee,
including, without limitation, all rights and remedies as may be available under
applicable law to the Purchaser in the event of a breach of a representation or
warranty pursuant to Section 4(a) hereof or in the event of a Defect; provided,
that the Trustee shall be a third-party beneficiary of this Agreement and shall
be entitled to enforce any obligations of the Mortgage Loan Seller hereunder in
connection with a breach of any such representation or warranty or a Defect as
if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), each of
the representations and warranties set forth in Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance of, and compliance with, the terms of this
Agreement by the Seller, will not violate the Seller's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it
is a party or which is applicable to it or any of its assets, in each
case which materially and adversely affect the ability of the Seller to
carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers, and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has
(A) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy or
to accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (C) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (D) made any
general solicitation by means of general advertising or in any other
manner with respect to any Certificate, any interest in any Certificate
or any similar security, or (E) taken any other action, that (in the
case of any of the acts described in clauses (A) through (E) above)
would constitute or result in a violation of the Securities Act or any
state securities law relating to or in connection with the issuance of
the Certificates or require registration or qualification pursuant to
the Securities Act or any state securities law of any Certificate not
otherwise intended to be a Registered Certificate. In addition, the
Seller will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any of the Certificates or interests therein. For purposes
of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans
or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-1 through A-23, inclusive, of Annex A
to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (as defined in Section 9)
under the headings "Summary of Prospectus Supplement--The Mortgage
Loans", "Risk Factors--The Mortgage Loans" and "Description of the
Mortgage Pool", set forth on Annex A to the Prospectus Supplement and
(to the extent it contains information consistent with that on such
Annex A) set forth on the Diskette, does not contain any untrue
statement of a material fact or (in the case of the Memorandum, when
read together with the other information specified therein as being
available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(x) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby,
other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the
Purchaser, (2) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained
or made and (3) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance of, and compliance with, the terms of
this Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance of, and compliance
with, the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchasers and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Upon discovery by any of the parties hereto of any Defect (as defined
in the Pooling and Servicing Agreement) in respect of the Mortgage File for any
Mortgage Loan or a breach of any representation or warranty made pursuant to
Section 4(a) and set forth in Exhibit C, which Defect or breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Servicer (or the Special Servicer in the case of a Specially Serviced Mortgage
Loan) or the Trustee. Within 90 days of receipt of notice by the Seller, from
the Servicer, the Special Servicer or the Trustee of such breach or Defect, the
Seller shall cure such Defect or breach, as the case may be, in all material
respects or repurchase the affected Mortgage Loan from the then owner(s) thereof
at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement), on a whole-loan, servicing released basis, by payment of such
Purchase Price by wire transfer of immediately available funds to the account
designated by such owner(s); provided, however, that in lieu of effecting any
such repurchase, the Seller will be permitted to deliver a Qualifying Substitute
Mortgage Loan and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to the terms and conditions of the Pooling and
Servicing Agreement. Conveyance of such Mortgage Loans shall be made free and
clear of all Liens and encumbrances created or suffered by the Purchaser or any
subsequent holder.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 86OG(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender
promptly or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to cure, to repurchase, or to substitute for, any Mortgage Loan in
accordance with Section 6(a) or 6(b) or disputes its obligation to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with either
such subsection, the Purchaser or its successors and assigns may take such
action as is appropriate to enforce such payment or performance, including,
without limitation, the institution and prosecution of appropriate proceedings.
To the extent the Purchaser prevails in such proceeding, the Seller shall
reimburse the Purchaser for all necessary and reasonable costs and expenses
incurred in connection with the enforcement of such obligation of the Seller to
cure, to repurchase, or to substitute for, any Mortgage Loan in accordance with
Section 6(a) or 6(b).
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, Wickersham & Taft, 100 Maiden Lane,
New York, New York 10038 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and
the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, the Purchaser or the Purchaser's designee, as the case may be,
all documents and funds required to be so delivered pursuant to Section
2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been
complied with, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to
be complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees,
costs and expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the Secretary
of State for the State of Delaware, dated not earlier than 30 days prior to the
Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or the Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Prospectus
Supplement--The Mortgage Loans", "Risk Factors--The Mortgage Loans" and/or
"Description of the Mortgage Pool" or contained on Annex A to the Prospectus
Supplement (exclusive of the Loan Detail), and such information does not
represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon reliance on the accuracy of the
representations and warranties of the Seller set forth in or made pursuant to
Section 4(b); provided, that the indemnification provided by this Section 9
shall not apply to the extent that such untrue statement of a material fact or
omission of a material fact necessary to make the statements made, in light of
the circumstances in which they were made, not misleading, was made as a result
of an error in the manipulation of, or calculations based upon, the Loan Detail.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated March 16,
1998, as supplemented by the prospectus supplement dated March 24, 1998 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 24, 1998, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation 1, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "Indemnified Party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "Indemnifying Party") under this Section 9, notify
the Indemnifying Party in writing of the commencement thereof; but the omission
to notify the Indemnifying Party will not relieve it from any liability that it
may have to any Indemnified Party otherwise than under this Section 9. In case
any such action is brought against any Indemnified Party and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or Indemnified Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Indemnified Parties. Upon receipt of notice from the
Indemnifying Party to such Indemnified Party of its election to assume the
defense of such action and approval by the Indemnified Party of counsel, which
approval will not be unreasonably withheld, the Indemnifying Party will not be
liable for any legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof, unless (i) the Indemnified Party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
Indemnifying Party, representing all the Indemnified Parties under Section 9(a)
and Section 1 of the Underwriting Agreement who are parties to such action),
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party has authorized the employment of counsel for the Indemnified
Party at the expense of the Indemnifying Party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii). Unless it shall assume the defense of
any proceeding, the Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there shall be a
final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party, but only to the extent provided in paragraph (a) of this
Section 9, from and against any loss or liability by reason of such settlement
or judgment. If the Indemnifying Party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed, or, if such
settlement provides for release of the Indemnified Party in connection with all
matters relating to the proceeding which has been asserted against the
Indemnified Party in such proceeding by the other parties to such settlement,
without the consent of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Indemnified
Party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to by certified
mail, postage prepaid, by overnight mail or courier service, or transmitted by
facsimile and confirmed by a similar mailed writing, if to the Purchaser,
addressed to Deutsche Mortgage & Asset Receiving Corporation, One International
Place, Room 520, Boston, Massachusetts 02110, Attention: R. Douglas Donaldson,
facsimile no. (617) 951-7650, with a copy to Anna H. Glick, Esq., Cadwalader,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, facsimile no.
(212) 504-6666, or such other address or facsimile number as may hereafter be
furnished to the Seller in writing by the Purchaser; and if to the Seller,
addressed to ContiTrade Services L.L.C., 277 Park Avenue, 38th Floor, New York,
New York 10172, attention: Chief Counsel, facsimile no. (212) 207-5251, or to
such other address or facsimile number as the Seller may designate in writing to
the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
CONTITRADE SERVICES L.L.C.
By:--------------------------------------------
Name:
Title:
By:--------------------------------------------
Name:
Title:
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
By:--------------------------------------------
Name:
Title:
<PAGE>
Cut-Off Date
Loan Loan Principal
Seller Number Property Name Balance
------ ------ ------------- -------
Conti ST001 Perdido Beach Resort 22,386,920
Conti MP-1022 Brea Union Plaza 19,968,453
Conti 9510172 Hyatt Arlington 19,406,230
Conti 9761-HSP(A) Homewood Suites- San Jose 18,470,000
Conti 97-27C Foxdale Manor Apartments 18,429,585
Conti A970027 Southwestern Bell Call Center 15,436,550
Conti 9810050 Consolidated Wash Depot Car Washes 14,587,046
Conti 9810050A Sonny's Car Wash - Hollywood
Conti 9810050B Sonny's Car Wash - Lauderhill
Conti 9810050C Sonny's Car Wash - Lighthouse Point
Conti 9810050D Sonny's Car Wash - Malden
Conti 9810050E Sonny's Car Wash - Nashua
Conti 9810050F Sonny's Car Wash - Lake Margaret/Orlando
Conti 9810050G Sonny's Car Wash - Raleigh/Orlando
Conti 9810050H Sonny's Car Wash - Pompano Beach
Conti 9810050I Sonny's Car Wash - Reading
Conti 9510228 Best Western Creekside Inn 13,953,219
Conti 25012 The Imeson Center 13,438,883
Conti MP-1041 Alameda Market Square 13,335,747
Conti MP-1042 Wadsworth Market Square 13,236,077
Conti 97-60C Homewood Suites- San Antonio 12,750,000
Conti 9761-HSP(C) Homewood Suites- Kissimmee 10,040,000
Conti MP-1013 Homebase, Brea Union Plaza 9,987,302
Conti 28001 Topflight Industrial Airpark 9,954,489
Conti A970044 Gateway Center 9,684,970
Conti 9761-HSP(B) Homewood Suites- Jacksonville 9,520,000
Conti MP-1043 Havana Market Square 9,129,704
Conti 9761-HSP(D) Homewood Suites- Seattle/Tukwila 8,830,000
Conti MP-1015 Rusty Leaf Plaza Shopping Center 8,487,914
Conti A970030 Quince Diamond Executive Center 8,477,247
Conti A970009 Old Town Center 8,327,355
Conti 97C-080137 Kendall Club Apartments 8,173,567
Conti 97-L022 1443 Park Avenue 7,959,882
Conti 97C-080131 IGEN Building 7,774,370
Conti PMC01005 Lakeridge Tennis Club 7,772,678
Conti A970020 Evergreen Square 7,718,275
Conti 9761-HSP(E) Homewood Suites- Savannah 7,640,000
Conti 97C-080133 Fulton Loft Office Building 7,162,166
Conti NYU108 Lane Hill 6,968,694
Conti 9510148 Oak Grove Institute Foundation 5,950,561
Conti A970018 Raintree Village 5,929,973
Conti MP-1048 Jewell Market Square 5,591,445
Conti 9754-KMJ K-Mart- Jackson 5,485,651
Conti 97-36C Ramada Inn - Kansas City 5,478,421
Conti MP-1044 Leetsdale Market Square 5,352,239
Conti 97C-070126 Princeton Square Apartments 5,280,184
Conti 9410235 Combest Self Storage Consolidation 5,231,589
Conti 9410235A Lockup Self Storage
Conti 9410235B Allspace Self Storage
Conti 9410235C Garth Road Self Storage
Conti 9410235D Storage Station - La Porte
Conti 9410235E Stow Away Self Storage
Conti A970025 Peter Harris Plaza Consolidation 5,177,909
Conti A970025A Peter Harris Plaza I - Dewitt
Conti A970025B Peter Harris Plaza - East Greenbush
Conti A970025C Peter Harris Plaza III - Bethlehem
Conti A970025D Peter Harris Plaza IV - Greece
Conti 97C090152 Park Place 4,990,781
Conti 9510198SN Phoenix West Plaza 4,987,693
Conti NY97003 Surrey Carlton Apts. 4,956,956
Conti 97-H008 Southport Manor Convalescent Center 4,873,824
Conti A970037 Fremont Village Square 4,821,862
Conti MP-1045 Pecos Market Place 4,644,587
Conti HCCA1880 Holiday Inn - Lawton 4,588,744
Conti A960018 Duke Tower Residential Suites 4,494,343
Conti 97-L037 K-Mart, Des Moines 4,486,742
Conti 9510211SN Auto Care Plaza 4,303,646
Conti 97C-100155 Wing Park Shopping Center 4,292,947
Conti A970075 Jefferson Smurfit Office Building 4,292,202
Conti 97-42-HBS Hannaford Brothers Supermarket 4,145,452
Conti A970048 Capitol Steps Apartments 3,993,293
Conti 9510239 Pacific Belgrave 3,983,007
Conti 9510164 Pacific Randolph 3,983,007
Conti 97C-080018 The Deerhaven/Sunset Consolidation 3,966,070
Conti 97C-080018A The Larchwood and Deerhaven Inns
Conti 97C-080018B The Sunset Motel
Conti NYU107 The Waterview 3,882,558
Conti 28002 Tucker Street Warehouse 3,583,721
Conti 97C-03121 Rosemeade Park Shopping Center 3,488,572
Conti 97-3C Hotel Colonial America 3,292,729
Conti 26585 Baychester Shopping Center 3,241,264
Conti 97C-090144 Kedzie Plaza South 3,238,745
Conti 97-H013 Santa Fe Trail Health Care Center 3,086,049
Conti 9410243 The Vault 3,079,636
Conti 97C-070125 Vallejo Village Shopping Center 3,076,237
Conti 25018 Abba Apartments 2,994,280
Conti 97C-0999 Summertree Shopping Center 2,986,583
Conti A960040 International Plaza Shopping Center 2,946,349
Conti 9510192 Avalon Apartments 2,890,903
Conti 97-H012 Red Rocks Care Center 2,792,983
Conti A960038 Montefiore Medical Center 2,734,302
Conti 9510221SN Veterans Road Apartments 2,691,818
Conti A970066 Folsom @12th Street 2,643,743
Conti 9410239 A Storage Inn #1 & #4 2,598,485
Conti 9410239A A Storage Inn # 1
Conti 9410239B A Storage Inn # 4
Conti 9510195SN Tunkhannock Village Center 2,591,790
Conti 97-H025 Cascade Terrace Nursing Home 2,489,389
Conti HCCA2035 Ramada Inn-Cocoa, FL 2,454,768
Conti MP-1050 Gerbes Shopping Center 2,402,029
Conti 9410249 Budget Self Storage- Marlow 2,391,601
Conti 96-L014 Springhill Shopping Center 2,388,604
Conti A970063 Governor's Plaza 2,314,478
Conti HCCA1975 Ramada Inn-Florence 2,291,745
Conti 9410222 Atlantic Mini Storage - San Pablo 2,280,793
Conti 9410227 Arizona Storage Inns 2,243,678
Conti MP-1049 Table Mesa Center 2,202,691
Conti 2255-09144CM1Pine Ridge Apartments 2,198,179
Conti 97-L018 9300 East Hampton Drive 2,188,806
Conti A960047 Coit Medical Building 2,166,047
Conti A960033 Commercial Point 2,161,965
Conti 9610072 Blue Valley Mobile Home Park 2,140,919
Conti MP-1047 Southgate Plaza Shopping Center 2,122,955
Conti 9510147 Pico Blvd 2,093,977
Conti 90145 Terrace Club Apartments 2,072,539
Conti 97-L019 Airborne Complex/Jo-Ann Fabrics Center 1,994,961
Conti 9410252 Sun City RV & Mini Storage 1,993,034
Conti 9410209 Commerce Freeway Center 1,993,004
Conti 97-H009 Crowne Health Care of Greenville 1,990,757
Conti 9510150 Holiday Inn Express - Greenfield 1,939,366
Conti 9410241 A Storage Inn #3 & #5 1,905,223
Conti 9410241A A Storage Inn #3
Conti 9410241B A Storage Inn #5
Conti 9410219 Tanglewood Self Storage 1,868,235
Conti 9410216 Security Public Storage - Pittsburg 1,816,203
Conti 97C-0128 Briarwood Apartments 1,813,804
Conti MP-1046 Capitol Hill Center 1,784,080
Conti 9510181 Holly-Norm Plaza 1,767,685
Conti HCCA1800 River Valley Motor Inn 1,749,071
Conti 9510170 Woodstone Plaza 1,743,046
Conti 9410232 Secure Self Storage-Livonia 1,695,717
Conti 9410251 Crocker's Lockers 1,693,670
Conti A970024 Montefiore Medical Center 1,690,033
Conti 1022 Checkered Flag Car Wash 1,647,055
Conti HCCA2049 Super 8 - Nampa 1,646,379
Conti NYU106 Setre Corp. 1,644,385
Conti 97-S020 One Elliot Place 1,595,596
Conti NYU115 Quaker Villa Shopping Center 1,594,555
Conti 97-H006 The Pointe Assisted Living Facilities 1,574,735
Conti 97-S075 South Towne Business Park #4 1,548,481
Conti HCCA2050 Super 8 - Winnemucca 1,546,679
Conti A970049 Oswego Midtown Center 1,542,688
Conti 9410250 Stonebrook Self-Storage 1,494,275
Conti NYU109 Inwood Properties 1,493,173
Conti NYU109A 10 Vermilyea
Conti NYU109B 17-19 Vermilyea
Conti NYU109C 530 Isham Street
Conti 9510158 Sam Sung Plaza 1,488,442
Conti A970023 Pacific Sales 1,474,376
Conti HCCA2048 Super 8 - Clearfield 1,397,000
Conti NYU117 Kensington Apartments 1,394,590
Conti 97-L023 K-Mart - Toledo 1,394,487
Conti 2243-09108 Airborne Freight 1,367,169
Conti 9410217 Newport Business Plaza 1,359,365
Conti 9510149 Aldine Westfield Road 1,339,249
Conti HCCA2046 Super 8 - Ankeny 1,337,129
Conti MM005 Lake Worth Village 1,323,947
Conti PMC1003 Edwards Cinema 1,321,016
Conti 9410233 Secure Self Storage-Waterford 1,296,725
Conti HCCA1925 Econo Lodge- Warrensville 1,295,555
Conti 97-S088 Westador Shopping Center 1,295,251
Conti 26583 845 Gerard Ave. 1,294,983
Conti MM002 Normandy Manor Apartments 1,293,979
Conti 9510205 Payless Foods Supermarket 1,275,588
Conti NYU111 39 Queens Boulevard 1,268,389
Conti 97-L026 Pier 1 Imports- Larchmont 1,245,516
Conti 9510202 Phoenix School 1,220,354
Conti MM004 Garden Gate Apartments 1,219,327
Conti 9510171 Town & Country Adult Living 1,196,057
Conti NYU113 Sono Court 1,195,771
Conti 9510190SN Federal Way Self Storage 1,193,539
Conti 97-S067 Chateau Royale Apartments 1,170,402
Conti 97-H010 Fountain Retirement Hotel 1,145,866
Conti A970034 537 Sweeten Creek Industrial Park 1,066,466
Conti 97C-0116 53rd Street 1,065,130
Conti 28000 Newington Warehouse 1,061,959
Conti HCCA2047 Super 8 - Boone 1,027,793
Conti 97099964 Morrow I Office Building 997,924
Conti NYU110 Jubilee Supermarket 996,537
Conti 97-S036 Manassas Industrial Park 971,568
Conti 97060017 Meadowbrook MHP 965,208
Conti 97-S039 Suitland Shopping Center 955,743
Conti 9610066 Youngstown Mobile Home Park 945,394
Conti NYU114 723 St. Nicholas Avenue 920,563
Conti 97-S093 Patuxent Self Storage 848,055
Conti 9410223 Okie Storage 846,691
Conti 97-S079 Lake Pointe Apartments 828,354
Conti 97-S035 Scoville Street 826,319
Conti 97-S038 Suitland Plaza Shopping Center 806,408
Conti PMC01000 Mimi's Cafe 795,961
Conti 26582 3810 Bailey Avenue 794,915
Conti HCCA2045 Super 8 - Abilene 768,350
Conti 97-S037 Plaza 28 767,290
Conti 9410230 U-Stor-It Warehouse 747,741
Conti 9610073 Green River Mobile Home Park 691,485
Conti 97-S051 Camelot Apartments 645,137
Conti 97-S052 Gilbert Apartments 621,592
Conti 97-S021 House of Carpets & Interiors 612,437
Conti 97-S087 West Hill Mobile Manor 573,200
Conti 97-S069 Windcrest Apartments 571,347
Conti 97-S074 Western Community Bank 548,472
Conti 97-S056 D'Orleans Apartments 537,605
Conti 97-S064 Andrews Avenue 497,038
Conti 97060028 Orange County NECA 494,388
Conti 97-S047 19 Norwich Street 473,914
Conti 97-S078 North Meadow Office Building 473,681
Conti 97-S072 1615-1619 Pitkin Avenue 427,594
Conti 97-S045 260 Hawthorne Street 406,475
Conti 97-S043 96 Stedman Street 358,468
Conti 97-S040 Hughes Industrial Center 342,690
Conti 97-S073 Canyon Place Apartments 338,363
Conti 97-S077 Executive Warehouse & Storage 299,167
Conti 97-S070 The Retreat Apartments 272,645
Conti 97-H007 Nursing Love and Care, Inc. 263,676
Conti 97-S025 Maple Leaf Office Complex 259,769
Conti 97-S044 223 Islip Avenue 230,875
Conti 97-S089 3-3A Rose Street 177,591
Conti 97-S055 Sands Chiropractic 149,134
Total 682,577,438
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, 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;
(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) whether such Mortgage Loan has an Anticipated Repayment Date;
(i) the Primary Servicing Fee Rate;
(j) whether the Mortgage Loan is an Actual/360 Loan or an Actual/365
Loan; and
(k) whether such Mortgage Loan is a Healthcare 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. Certain of the above-referenced items are described on the
Mortgage Loan Schedule attached hereto. Certain of the above-referenced items
are described on Exhibit B-1 and Exhibit B-2 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(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, Mortgage Pass-Through
Certificates, Series 1998-C1, 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;
(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) 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
Trustee, if any, in each case with evidence of
recording thereon;
(v) an original assignment of any related 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;
(vi) 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;
(vii) 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;
(viii) 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, Note or any related security document have
been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance
policy issued 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;
(x) the original or a copy of any guaranty of the
obligations of the mortgagor under the Mortgage Loan
together with (A) if applicable, the 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;
(xi) (A) file 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
mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon) and which were in the
possession of the 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 Seller, a UCC
financing statement executed by the most recent
assignee of record prior to the Trustee or, if none,
by the Originator, evidencing the transfer of such
security interest, either in blank or in favor of the
Trustee;
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted
by the Mortgagor if the Mortgage, Note or other
document or instrument referred to above was signed on
behalf of the Mortgagor pursuant to such power of
attorney;
(xiii) if the Mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground lease
or a copy thereof;
(xiv) the original of the Loan Agreement or counterpart
thereof relating to such Mortgage Loan, if any;
(xv) copies of the original Environmental Reports of the
Mortgaged Properties made in connection with
origination of the Mortgage Loans, if any;
(xvi) copies of the original Management Agreements, if any,
for the Mortgaged Property;
(xvii) 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;
(xviii) 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-1
financing statements, if any, submitted for filing
with respect to the Mortgage Loan Seller's security
interest in the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts and all funds contained
therein (and UCC-3 financing statements assigning such
security interest to the Trustee on behalf of the
Certificateholders); and
(xix) any other written agreements related to the Mortgage
Loan.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Note, Mortgage or other loan document relating to such Mortgage Loan prohibits
or restricts the Seller's right to assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such Mortgage
Loan set forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not delinquent as of the
Cut-off Date (giving effect to any applicable grace periods), and has not been
during the twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving effect
to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid first
lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. If the Mortgaged Property is operated as a nursing
facility, a hospitality property or a multifamily property, the Mortgage,
together with any separate security agreement, similar agreement and UCC
financing statement, if any, establishes and creates a first priority, perfected
security interest, to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. To the Seller's
actual knowledge, the insurer that issued such Title Policy is qualified to do
business in the state in which the related Mortgaged Property is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Except with respect to provisions relating
to default interest, yield maintenance charges and prepayment premiums, such
Mortgage Loan complied with all applicable usury laws in effect at its date of
origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Note and Mortgage and all other documents
and instruments evidencing, guaranteeing, insuring or otherwise securing such
Mortgage Loan have been duly and properly executed by the parties thereto, and
each is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or affecting
the rights of creditors generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and excluding provisions relating to default interest, yield
maintenance charges or prepayment premiums.
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured against loss by hazards of extended coverage in an amount (subject to a
customary deductible) at least equal to the lesser of (1) the outstanding
principal balance of such Mortgage Loan, (2) 100% of the full replacement cost
of the improvements located on such Mortgaged Property and (3) the full
insurable actual cash value of such improvements, and the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the improvements on the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable actual cash value of such Mortgaged Property, (3) the maximum amount
of insurance available under the National Flood Insurance Act of 1968, as
amended, and (4) 100% of the replacement cost of the improvements located on
such Mortgaged Property. The Mortgage requires the Mortgagor to maintain such
insurance in respect of the Mortgaged Property in addition to comprehensive
general liability insurance in amounts generally required by the Seller, and at
least six months rental or business interruption insurance. All such insurance
required by the Mortgage to be maintained is in full force and effect and names
the Originator, the Seller or their respective successors or assigns as
mortgagee, loss payee or additional insured. Each such insurance policy requires
prior notice to the holder of the Mortgage of termination or cancellation, and
no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments, studies or reviews (or an update
of a previously conducted assessment, study or review), which was (were)
performed on behalf of the Seller, or as to which the related report was
delivered to the Seller in connection with its origination or acquisition of
such Mortgage Loan; and the Seller, having made no independent inquiry other
than reviewing the resulting report(s) or studies and/or employing an
environmental consultant to perform or review the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s) or studies. The Seller has not taken any action with respect
to such Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Note have not been impaired, waived, altered or modified in any material
respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
assessments for improvements or other similar outstanding charges affecting the
related Mortgaged Property which are or may become a lien of priority equal to
or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except with respect to
Mortgage Loans the Mortgagor of which is a lessee under a ground lease of a
Mortgaged Property or a combination of a ground lease and a fee simple interest,
the interest of the related Mortgagor in the related Mortgaged Property consists
of a fee simple estate in real property.
(xix) Whole Loan. Except as set forth on Schedule C-1 hereto, each Mortgage
Loan is a whole loan.
(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee. The Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted Encumbrances,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, subleases, licenses or other
agreements, to the extent permitted by law, pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same, to the extent permitted by law. The related assignment of
any Assignment of Leases, not included in a Mortgage, executed and delivered in
favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Assignment of
Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the Title Policy referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel, endorsement to such Title Policy and/or other
due diligence customarily performed by the Seller, the improvements located on
or forming part of such Mortgaged Property comply in all material respects with
applicable zoning laws and ordinances (except to the extent that they may
constitute legal nonconforming uses).
(xxiv) No Material Default. (A) To the Seller's knowledge, there exists no
material default, breach or event of acceleration under the related Mortgage or
Note, and (B) the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller herein.
(xxv) Inspection. In connection with the origination or acquisition of each
Mortgage Loan, the Seller inspected or caused to be inspected (either directly
by the Seller, by its correspondent or by a third party) the Mortgaged Property.
(xxvi) No Equity Participation or Contingent Interest. Except for any
related Excess Interest, the Mortgage Loan contains no equity participation by
the lender, and does not provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxvii) No Advances of Funds. No holder of the Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property (other than a tenant required to make its lease payments directly to
the holder of the related Mortgage Loan), directly or indirectly, for the
payment of any amount required by the Mortgage Loan.
(xxviii) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, (i) the
related Mortgagor or operator of the related Mortgaged Property was in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related Mortgaged
Property as it was then operated, and, (ii) if a related Mortgaged Property is
improved by a skilled nursing, congregate care or assisted living facility, the
most recent inspection or survey by governmental authorities having jurisdiction
in connection with such licenses, permits and authorizations did not cite such
Mortgaged Property for material violations (which shall include only "Level IV"
(or equivalent) violations in the case of skilled nursing facilities) that had
not been cured or as to which a plan of correction had not been submitted to and
accepted by such governmental authorities. To the extent such facility
participates in Medicaid or Medicare, the Seller has not received any notice
that such facility is not in compliance in all material respects with the
requirements of such program, such that such facility's continued participation
in such program be adversely affected.
(xxix) Servicing. The servicing and collection practices used by Seller and
its designees with respect to the Mortgage Loan have been in all material
respects legal, proper and prudent and have met industry standards for servicing
of commercial mortgage loans.
(xxx) Customary Remedies. The related Mortgage or Note, together with
applicable state law, contains customary and enforceable provisions (subject to
the exceptions set forth in paragraph (xii)) such as to render the rights and
remedies of the holders thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
(xxxi) The indebtedness evidenced by a Mortgage Loan is not convertible to
an ownership interest in the related Mortgaged Property or the related
Mortgagor.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property, or to repay the principal of the
Mortgage Loan.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.86OG-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvi) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest, either (1) the ground
lessor's fee interest is subordinated to the lien of the Mortgage or (2) the
following apply to such Ground Lease:
(a) To the actual knowledge of the Seller, such Ground
Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related
estoppel letter or lender protection agreement
between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material
change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan,
with the exception of material changes reflected in
written instruments that are a part of the related
Mortgage File;
(b) The lessee's interest in such Ground Lease is not
subject to any liens or encumbrances superior to, or
of equal priority with, the related Mortgage, other
than the ground lessor's related fee interest and
Permitted Encumbrances;
(c) Except as set forth on Schedule C-1 hereto, the
Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and
assigns upon notice to, but (except in the case where
such consent cannot be unreasonably withheld) without
the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the
Closing Date) and, in the event that it is so
assigned, is further assignable by the Purchaser and
its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor (except
in the case where such consent cannot be unreasonably
withheld);
(d) Such Ground Lease is in full force and effect, and
the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's
actual knowledge, there exists no condition that, but
for the passage of time or the giving of notice, or
both, would result in an event of default under the
terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other
agreement, requires the lessor under such Ground
Lease to give notice of any default by the lessee to
the mortgagee, provided that the mortgagee has
provided the lessor with notice of its lien in
accordance with the provisions of such Ground Lease,
and such Ground Lease, or an estoppel letter or other
agreement, further provides that no notice of
termination given under such Ground Lease is
effective against the mortgagee unless a copy has
been delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such
Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice
of any such default, before the lessor thereunder may
terminate such Ground Lease;
(g) Such Ground Lease has an original term (including any
extension options set forth therein) which extends
not less than ten years beyond the Stated Maturity
Date of the related Mortgage Loan;
(h) Except as set forth on Schedule C-1 hereto, under the
terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds other
than in respect of a total or substantially total loss
or taking, will be applied either to the repair or
restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by
it having the right to hold and disburse such proceeds
as the repair or restoration progresses (except in
such cases where a provision entitling another party
to hold and disburse such proceeds would not be viewed
as commercially unreasonable by a prudent commercial
mortgage lender), or to the payment of the outstanding
principal balance of the Mortgage Loan together with
any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as
commercially unreasonable by the Seller; and such
Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an
uncured default, to disturb the possession, interest
or quiet enjoyment of any subtenant of the lessee, or
in any manner, which would materially adversely
affect the security provided by the related Mortgage;
and
(j) Except as set forth on Schedule C-1 hereto, such
Ground Lease requires the lessor to enter into a new
lease with the Seller or its successors or assigns in
the event of a termination of the Ground Lease by
reason of a default by the Mortgagor under the Ground
Lease, including rejection of the Ground Lease in a
bankruptcy proceeding.
(xxxvii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxviii) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of a
release price, the related Note or Mortgage does not require the holder thereof
to release all or any portion of the Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xxxix) Junior Liens. Except as set forth on Schedule C-1 hereto, the
Mortgage Loan does not permit the related Mortgaged Property to be encumbered by
any lien junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof or the satisfaction of
debt service coverage or similar conditions specified therein.
(xl) Due-On-Sale; Due-On-Encumbrance. Except as set forth in Schedule C-1
hereto, each related Mortgage or Loan Agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of the Mortgage or Loan
Agreement, the related Mortgaged Property, or any interest therein, is directly
or indirectly transferred or sold (except for a one-time transfer), or
encumbered in connection with subordinate financing.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is not
a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Defeasance Provisions. Any Mortgage Loan which contains a provision
for any defeasance of mortgage collateral either (A) requires the consent of the
holder of the Mortgage Loan to any defeasance, or (B) permits defeasance (i) no
earlier than two years after the Closing Date (as defined in the Pooling and
Servicing Agreement, dated as of March 1, 1998), (ii) only with substitute
collateral constituting "government securities" within the meaning of Treas.
Reg. ss. 1.86OG-2(a)(8)(i), and (iii) only to facilitate the disposition of the
Mortgaged Property and not as a part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
(xliii) Release or Substitution of Collateral. Such Mortgage Loan does not
permit the release or substitution of collateral if such release or substitution
(a) would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (without regard to clauses (A)(i) or (A)(ii) thereof).
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
<PAGE>
ContiTrade
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND
WARRANTIES OF SELLER REGARDING
THE INDIVIDUAL MORTGAGE LOANS
The following Mortgage Loans are excepted from the representations and
warranties contained in the corresponding paragraph in Exhibit C:
(xxxvi) Leasehold Estate.
(c) Mortgage Loans No. 9510158 (Samsung Plaza) and No. A970025B (Peter
Harris -- East Greenbush) require the consent of the ground lessor for
assignment of the ground lessee's interest, but such consent cannot be
unreasonably withheld.
(h) Mortgage Loan No. A970025B (Peter Harris -- East Greenbush) does not
give the mortgagee the right to control insurance proceeds.
(j) Mortgage Loans No. 9510158 (Samsung Plaza) and No. A970025B (Peter
Harris -- East Greenbush) do not require the ground lessor to enter into a new
lease in the event of a termination of the related ground lease.
(xxxix) Junior Liens.
1. Mortgage Loan No. 9761-HSP(C) (Homewood Suites -- Kissimmee) permits
future subordinate financing secured by the related Mortgaged Property, subject
to the following conditions:
(a) the subordinate debt shall be used for construction of additional rooms
and meeting space; and
(b) the subordinate debt shall not exceed the greater of (i) the cost as
set forth in a development budget, (ii) $7,000,000 and (iii) $85,000 or $60,000
per newly constructed 2-bedroom or 1-bedroom suite, respectively.
A second mortgage and a pledge of partnership interests as security is
permitted subject to standstill provisions.
2. Mortgage Loan No. 9510148 (Oak Grove Institute Foundation) permits the
borrower to finance healthcare receivables.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of [SELLER]
----------------------------------
I, ----------------------, a ---------------------- of
- ---------------------- (the "Seller"), hereby certify as follows:
The Seller is a limited liability company duly organized and validly
existing under the laws of the State of Delaware.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Formation and Limited Liability Company Agreement of the Seller, which
Certificate of Formation and Limited Liability Company Agreement are on the date
hereof, and have been at all times in full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified as an
officer or authorized signatory of the Seller and his or her genuine signature
is set forth opposite his or her name:
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
- ---------- --, 1998.
By:------------------------
Name:
Title:
I, [name], [title], hereby certify that ---------- is a duly elected or
appointed, as the case may be, qualified and acting ---------- of the Seller and
that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
- ---------- --, 1998.
By-------------------------
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of [SELLER]
-----------------------
In connection with the execution and delivery by ----------------------
(the "Seller") of, and the consummation of the transaction contemplated by, that
certain Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this ----- day of ----------, 1998.
[SELLER]
By:------------------------
Name:
Title:
<PAGE>
EXHIBIT D-3A
FORM OF CORPORATE OPINION OF SELLER
March 1, 1998
Addressees Listed on Schedule A
Re: Deutsche Mortgage & Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates,
Series 1998 C-1
------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the "Mortgage Loan
Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
(the "Depositor") and --------------------------------------, a --------------
corporation (the "Seller"), relating to the sale by the Seller and the purchase
by the Depositor of the Mortgage Loans. We have acted as special counsel to the
Seller in connection with the aforementioned transaction. Capitalized terms used
herein but not defined herein have the respective meanings given them in the
Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Mortgage Loan Purchase Agreement, and such certificates,
corporate and public records, agreements and instruments and other documents,
including, among other things, the documents delivered on the Closing Date, as
we have deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to any facts
material to such opinions that were not known to us, we have relied upon
statements and representations of officers and other representatives of the
Seller.
We have also assumed (other than with respect to the Seller) that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments, and
that such documents, agreements and instruments are valid, binding and
enforceable obligations of such parties. As used herein, "to our knowledge"
means the conscious awareness, without independent investigation, of facts or
other information by any lawyer in our firm actively involved in the
transactions contemplated by the Mortgage Loan Purchase Agreement.
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and [-------------------], where expressly
referred to herein, the federal laws of the United States of America (in each
case without regard to conflicts of laws principles).
Based upon and subject to the foregoing, we are of the opinion that:
1. The Seller is a corporation validly existing under the laws
of the State of ----------------, with full corporate power and
authority to execute, deliver and perform its obligations under the
Mortgage Loan Purchase Agreement and all the transactions contemplated
thereby, including, but not limited to, the power and authority to
sell, assign and transfer the Mortgage Loans in accordance with the
Mortgage Loan Purchase Agreement, the Seller has taken all necessary
action to authorize the execution, delivery and performance of the
Mortgage Loan Purchase Agreement by it, and the Mortgage Loan Purchase
Agreement has been duly authorized, executed and delivered by it.
2. The Mortgage Loan Purchase Agreement is the legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and by general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and except to the extent rights to indemnity and
contribution may be limited by applicable law.
3. The execution and delivery of the Mortgage Loan Purchase
Agreement by the Seller and the performance of its obligations under
the Mortgage Loan Purchase Agreement will not conflict with any
provision of any law or regulation to which the Seller is subject, or
conflict with, result in a breach of or constitute a default under any
of the terms, conditions or provisions of the Seller's organizational
documents or by-laws or, to our knowledge, any material agreement or
instrument to which the Seller is a party or by which it is bound, or,
to our knowledge, any order or decree applicable to the Seller, or
result in the creation or imposition of any lien on any of the Seller's
assets or property, in each case which would materially and adversely
affect the ability of the Seller to perform its obligations under the
Mortgage Loan Purchase Agreement.
4. To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Seller in
any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Seller to perform
its obligations under the Mortgage Loan Purchase Agreement.
5. To our knowledge, the Seller is not in default with respect
to any order or decree of any court or any order, regulation or decree
of any federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely affect its
ability to perform its obligations under the Mortgage Loan Purchase
Agreement.
6. To our knowledge, no consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Seller of or compliance by
the Seller with the Mortgage Loan Purchase Agreement or the
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement, other than those which have been obtained by the
Seller.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
Schedule A
Deutsche Mortgage & Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
<PAGE>
EXHIBIT D-3B
FORM OF 10b-5 LETTER
March 1, 1998
Deutsche Mortgage and Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
Ladies and Gentlemen:
This letter being delivered to you pursuant to Section 8(e) of the Mortgage
Loan Purchase Agreement, dated March 1, 1998 (the "Mortgage Loan Purchase
Agreement"), between Deutsche Mortgage and Asset Receiving Corporation (the
"Depositor"), and -------------------------- (the "Seller"), relating to the
sale by the Seller and the purchase by the Depositor of certain commercial and
multifamily mortgage loans (the "Mortgage Loans"). The Depositor will assign and
transfer the Mortgage Loans to a trust fund created pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), among the Depositor, Banc One Mortgage Capital Markets, LLC, as
servicer (the "Servicer") and as special servicer (the "Special Servicer"), and
LaSalle National Bank, as trustee (the "Trustee"). The Depositor's Commercial
Mortgage Pass-Through Certificates, Series, 1998-C1 (the "Certificates") will be
issued in exchange for the Mortgage Loans pursuant to the terms of the Pooling
and Servicing Agreement. The Class X, Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates (collectively, the "Offered Certificates") are
being offered by the Prospectus dated March 16, 1998 (the "Base Prospectus"), as
supplemented by the Prospectus Supplement dated March [--], 1998 (the
"Prospectus Supplement" and collectively with the Base Prospectus, the
"Prospectus") and the Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class Q-1, Class Q-2, Class R and Class LR Certificates (the "Private
Certificates") are being offered by the Private Placement Memorandum dated March
[-], 1998 (the "Memorandum"). We have acted as special counsel to the Seller in
connection with the aforementioned transaction. [In addition, we have acted as
counsel to the Seller in connection with the origination of the Mortgage Loans.]
Capitalized terms used herein but not defined herein have the respective
meanings given them in the Mortgage Loan Purchase Agreement.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Prospectus or the
Memorandum, and we do not pass upon or assume any responsibility therefor.
However, in the course of our review of the Prospectus and the Memorandum, we
have attended certain conferences and participated in conversations with
representatives of the Seller, the Depositor, representatives of the Depositor,
the Servicer, the Special Servicer and the Trustee. On the basis of the
information which we gained in the course of the representation referred to
above and our examination of the documents referred in this letter, considered
in light of our understanding of applicable law and the experience we have
gained through our practice, nothing has come to our attention in the course of
our review of the Prospectus and Memorandum which causes us to believe that, as
of their respective dates or as of the date hereof, the Prospectus or Memorandum
contained or contain any untrue statement of a material fact or omitted or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
insofar as statements relate to the Mortgage Loans, including, without
limitation, the related mortgaged properties, borrowers and managers; it being
understood that we express no view as to any information incorporated by
reference in the Prospectus or Memorandum or as to the adequacy or accuracy of
the financial, numerical, statistical or quantitative information included in
the Prospectus or Memorandum.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT H-3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 1, 1998, between German American Capital Corporation, as
seller (the "Seller"), and Deutsche Mortgage & Asset Receiving Corporation, as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch
IBCA, Inc. and Moody's Investors Service, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of March 1, 1998
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor, Banc
One Mortgage Capital Markets, LLC, as servicer (in such capacity, the
"Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle National Bank, as trustee (in such capacity, the "Trustee"), and ABN
AMRO Bank N.V., as fiscal agent. Capitalized terms not otherwise defined herein
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to Deutsche
Morgan Grenfell Inc., Morgan Stanley & Co. Incorporated and Llama Company, L.P.
(together, the "Underwriters") pursuant to an underwriting agreement dated March
24, 1998 (the "Underwriting Agreement"). The Purchaser intends to sell the
remaining Certificates (the "Non-Registered Certificates") pursuant to a
certificate purchase agreement dated March 24, 1998 (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 30, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on March 1, 1998 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$452,581,252.00, subject to a variance of plus or minus 5%. The purchase price
for the Mortgage Loans shall be determined and paid to the Seller in accordance
with the terms of an allocation agreement dated March 24, 1998 (the "Allocation
Agreement"), to which the Seller and Purchaser, among others, are parties.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdbacks in accordance with the Allocation Agreement) and the
issuance of the Certificates, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse, all the right,
title and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, including all interest and principal
received or receivable by the Seller on or with respect to the Mortgage Loans
after the Cut-off Date, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans; provided, however, that in the case of any Mortgage Loan with an
Anticipated Repayment Date prior to maturity (each an "ARD Loan") accruing
Excess Interest at an annual rate of greater than 2%, such ARD Loan shall be
deemed to have been modified to provide that, as of the Cut-off Date, such ARD
Loan shall accrue Excess Interest at an annual rate of no more than 2%;
provided, further, that with respect to such limitation of Excess Interest, the
related borrowers shall be third-party beneficiaries of such modification of
such ARD Loan. The Purchaser shall be entitled to (and, to the extent received
by or on behalf of the Seller, the Seller shall deliver or cause to be delivered
to or at the direction of the Purchaser) all scheduled payments of principal,
and interest due thereon, due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date; provided, however, that all scheduled payments of principal, and
interest accrued but not paid or due thereon, due on or before the Cut-off Date
and collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Note referred to in clause (i) of Exhibit B has been delivered by the
Seller with respect to each such Mortgage File. In the event Seller fails to so
deliver each such Mortgage File to the Trustee, the Purchaser and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law. If the Seller 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 clauses (ii),
(iv), (viii), (xi)(A) and (xii) of Exhibit B, 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 this Section 2(b) 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 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 Trustee, 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 or at the direction of the Purchaser (or any
subsequent owner of the affected Mortgage Loan, including without limitation the
Trustee) within 180 days of the Closing Date (or within such longer period after
the Closing Date as the Purchaser (or such subsequent owner) may consent to,
which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
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
clause (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Seller has delivered to the
Trustee a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B covering all the
Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdbacks
in accordance with the Allocation Agreement) has been received by the Seller and
the issuance of the Certificates, the Trustee shall be authorized to release to
the Purchaser or its designee all of the Mortgage Files in the Trustee's
possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B but that are reasonably required to
service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller shall deliver a copy of the related
Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
(f) It is further acknowledged and agreed by the Seller that the Purchaser
intends to convey all right, title and interest of the Purchaser in and to the
Mortgage Loans and all rights and remedies under this Agreement to the Trustee,
including, without limitation, all rights and remedies as may be available under
applicable law to the Purchaser in the event of a breach of a representation or
warranty pursuant to Section 4(a) hereof or in the event of a Defect; provided,
that the Trustee shall be a third-party beneficiary of this Agreement and shall
be entitled to enforce any obligations of the Mortgage Loan Seller hereunder in
connection with a breach of any such representation or warranty or a Defect as
if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), each of
the representations and warranties set forth in Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Maryland,
and is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance of, and compliance with, the terms of this
Agreement by the Seller, will not violate the Seller's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it
is a party or which is applicable to it or any of its assets, in each
case which materially and adversely affect the ability of the Seller to
carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers, and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
(viii) Except with respect to Deutsche Morgan Grenfell Inc.,
an affiliate, acting as Underwriter, neither the Seller nor anyone
acting on its behalf has (A) offered, pledged, sold, disposed of or
otherwise transferred any Certificate, any interest in any Certificate
or any other similar security to any person in any manner, (B)
solicited any offer to buy or to accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any
other similar security from any person in any manner, (C) otherwise
approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any
manner, (D) made any general solicitation by means of general
advertising or in any other manner with respect to any Certificate, any
interest in any Certificate or any similar security, or (E) taken any
other action, that (in the case of any of the acts described in clauses
(A) through (E) above) would constitute or result in a violation of the
Securities Act or any state securities law relating to or in connection
with the issuance of the Certificates or require registration or
qualification pursuant to the Securities Act or any state securities
law of any Certificate not otherwise intended to be a Registered
Certificate. In addition, the Seller will not act, nor has it
authorized or will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to any of the Certificates
or interests therein. For purposes of this paragraph 4(b)(viii), the
term "similar security" shall be deemed to include, without limitation,
any security evidencing or, upon issuance, that would have evidenced an
interest in the Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-1 through A-23, inclusive, of Annex A
to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (as defined in Section 9)
under the headings "Summary of Prospectus Supplement--The Mortgage
Loans", "Risk Factors--The Mortgage Loans" and "Description of the
Mortgage Pool", set forth on Annex A to the Prospectus Supplement and
(to the extent it contains information consistent with that on such
Annex A) set forth on the Diskette, does not contain any untrue
statement of a material fact or (in the case of the Memorandum, when
read together with the other information specified therein as being
available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(x) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby,
other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the
Purchaser, (2) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained
or made and (3) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance of, and compliance with, the terms of
this Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance of, and compliance
with, the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchasers and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Upon discovery by any of the parties hereto of any Defect (as defined
in the Pooling and Servicing Agreement) in respect of the Mortgage File for any
Mortgage Loan or a breach of any representation or warranty made pursuant to
Section 4(a) and set forth in Exhibit C, which Defect or breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Servicer (or the Special Servicer in the case of a Specially Serviced Mortgage
Loan) or the Trustee. Within 90 days of receipt of notice by the Seller, from
the Servicer, the Special Servicer or the Trustee of such breach or Defect, the
Seller shall cure such Defect or breach, as the case may be, in all material
respects or repurchase the affected Mortgage Loan from the then owner(s) thereof
at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement), on a whole-loan, servicing released basis, by payment of such
Purchase Price by wire transfer of immediately available funds to the account
designated by such owner(s); provided, however, that in lieu of effecting any
such repurchase, the Seller will be permitted to deliver a Qualifying Substitute
Mortgage Loan and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to the terms and conditions of the Pooling and
Servicing Agreement. Conveyance of such Mortgage Loans shall be made free and
clear of all Liens and encumbrances created or suffered by the Purchaser or any
subsequent holder.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 86OG(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender
promptly or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to cure, to repurchase, or to substitute for, any Mortgage Loan in
accordance with Section 6(a) or 6(b) or disputes its obligation to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with either
such subsection, the Purchaser or its successors and assigns may take such
action as is appropriate to enforce such payment or performance, including,
without limitation, the institution and prosecution of appropriate proceedings.
To the extent the Purchaser prevails in such proceeding, the Seller shall
reimburse the Purchaser for all necessary and reasonable costs and expenses
incurred in connection with the enforcement of such obligation of the Seller to
cure, to repurchase, or to substitute for, any Mortgage Loan in accordance with
Section 6(a) or 6(b).
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, Wickersham & Taft, 100 Maiden Lane,
New York, New York 10038 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and
the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, the Purchaser or the Purchaser's designee, as the case may be,
all documents and funds required to be so delivered pursuant to Section
2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been
complied with, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to
be complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees,
costs and expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the Secretary
of State for the State of Maryland, dated not earlier than 30 days prior to the
Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or the Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Prospectus
Supplement--The Mortgage Loans", "Risk Factors--The Mortgage Loans" and/or
"Description of the Mortgage Pool" or contained on Annex A to the Prospectus
Supplement (exclusive of the Loan Detail), and such information does not
represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth in or made pursuant to Section 4;
provided, that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement of a material fact or omission of a
material fact necessary to make the statements made, in light of the
circumstances in which they were made, not misleading, was made as a result of
an error in the manipulation of, or calculations based upon, the Loan Detail.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated March 16,
1998, as supplemented by the prospectus supplement dated March 24, 1998 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 24, 1998, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation 1, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "Indemnified Party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "Indemnifying Party") under this Section 9, notify
the Indemnifying Party in writing of the commencement thereof; but the omission
to notify the Indemnifying Party will not relieve it from any liability that it
may have to any Indemnified Party otherwise than under this Section 9. In case
any such action is brought against any Indemnified Party and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or Indemnified Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Indemnified Parties. Upon receipt of notice from the
Indemnifying Party to such Indemnified Party of its election to assume the
defense of such action and approval by the Indemnified Party of counsel, which
approval will not be unreasonably withheld, the Indemnifying Party will not be
liable for any legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof, unless (i) the Indemnified Party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
Indemnifying Party, representing all the Indemnified Parties under Section 9(a)
and Section 1 of the Underwriting Agreement who are parties to such action),
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party has authorized the employment of counsel for the Indemnified
Party at the expense of the Indemnifying Party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii). Unless it shall assume the defense of
any proceeding, the Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there shall be a
final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party, but only to the extent provided in paragraph (a) of this
Section 9, from and against any loss or liability by reason of such settlement
or judgment. If the Indemnifying Party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed, or, if such
settlement provides for release of the Indemnified Party in connection with all
matters relating to the proceeding which has been asserted against the
Indemnified Party in such proceeding by the other parties to such settlement,
without the consent of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Indemnified
Party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
certified mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to Deutsche Mortgage & Asset Receiving Corporation, One
International Place, Room 520, Boston, Massachusetts 02110, Attention: R.
Douglas Donaldson, facsimile no. (617) 951-7650, with a copy to Anna H. Glick,
Esq., Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
facsimile no. (212) 504-6666, or such other address or facsimile number as may
hereafter be furnished to the Seller in writing by the Purchaser; and if to the
Seller, addressed to German American Capital Corporation, 31 West 52nd Street,
New York, New York 10019, Attention: Steven S. Stuart, facsimile no. (212)
469-8518, or to such other address or facsimile number as the Seller may
designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By:______________________________________________
Name:
Title:
By:______________________________________________
Name:
Title:
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
By:______________________________________________
Name:
Title:
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, 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;
(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) whether such Mortgage Loan has an Anticipated Repayment Date;
(i) the Primary Servicing Fee Rate;
(j) whether the Mortgage Loan is an Actual/360 Loan or an Actual/365
Loan; and
(k) whether such Mortgage Loan is a Healthcare 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. Certain of the above-referenced items are described on the
Mortgage Loan Schedule attached hereto. Certain of the above-referenced items
are described on Exhibit B-1 and Exhibit B-2 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
<PAGE>
Cut-Off Date
Loan Loan Principal
Seller Number Property Name Balance
------ ------ ------------- -------
GACC TA0289 Aggregate Loan Level Information 61,500,000
GACC TA02891 Chocolate Works Apartments
GACC TA02892 The Clinton Apartments
GACC TA02893 Portico Row
GACC TA02894 Roberts/Quay Apartments
GACC TA02895 Locust Point
GACC TA02896 The Lofts at Logan View
GACC TA02897 Lowertown Commons
GACC TA02898 Metropolitan Apartment Building
GACC TA02899 Old City Hall
GACC TA028910 Old Quaker Building
GACC TA028911 Packard Motor Car Building
GACC TA028912 Parkside Apartments
GACC TA028913 Peach Alley Court
GACC TA028914 The Regal Apartments
GACC TA028915 Shadyside Commons Apartments
GACC TA028916 Sharples Works Apartments
GACC TA028917 The Shoe Factory Apartments
GACC TA028918 The Touraine Apartments
GACC TA028919 Trinity Row Apartments
GACC TA028920 Waterfront I Apartments
GACC TA028921 Waterfront II Apartments
GACC GA0178 Aggregate Loan Level Information 52,061,172
GACC GA01781 #158 Atlanta
GACC GA01782 #226 Atlanta
GACC GA01783 #70 Durham
GACC GA01784 #71 Chapel Hill
GACC GA01785 #72 Durham
GACC GA01786 #74 Raleigh
GACC GA01787 #156 Atlanta
GACC GA01788 #215 Midland
GACC GA01789 #200 Arlington
GACC GA017810 #75 Raleigh
GACC GA017811 #222 Oklahoma City
GACC GA017812 #152 Atlanta
GACC GA017813 #154 Stone Mountain
GACC GA017814 #77 Winston-Salem
GACC GA017815 #172 Bedford
GACC GA017816 #153 Atlanta
GACC GA017817 #78 Wilmington
GACC GA017818 #168 Arlington
GACC GA017819 #207 El Paso
GACC GA017820 #76 Winston-Salem
GACC GA017821 #175 Carrolton
GACC GA017822 #171 Arlington
GACC GA017823 #202 Grand Prairie
GACC GA017824 #213 San Angelo
GACC GA017825 #225 Greenville
GACC GA017826 #73 Greensboro
GACC GA017827 #151 Jonesboro
GACC GA017828 #185 Longview
GACC GA017829 #155 Norcross
GACC GA017830 #204 Abilene
GACC GA017831 #190 Meridian
GACC GA017832 #169 Arlington
GACC GA017833 #192 Taxarkana
GACC GA017834 #150 Albany
GACC GA017835 #189 Meridian
GACC GA017836 #170 Arlington
GACC GA017837 #159 Fort Worth
GACC GA017838 #176 Lewisville
GACC GA017839 #166 Savannah
GACC GA017840 #224 Greenville
GACC GA017841 #162 Augusta
GACC GA017842 #163 Columbus
GACC GA017843 #188 Tyler
GACC GA017844 #161 Augusta
GACC GA017845 #201 Fort Worth
GACC GA017846 #173 Mesquite
GACC GA017847 #211 Amarillo
GACC GA017848 #193 Fort Smith
GACC GA017849 #164 Macon
GACC GA017850 #210 Amarillo
GACC GA017851 #223 Midwest City
GACC GA017852 #212 Amarillo
GACC GA017853 #230 Springfield
GACC GA017854 #195 Nacogdoches
GACC GA017855 #165 Savannah
GACC GA017856 #214 Las Cruces
GACC GA017857 #186 Longview
GACC GA017858 #206 Abilene
GACC GA017859 #196 Lufkin
GACC GA017860 #208 El Paso
GACC GA017861 #191 Texarkana
GACC GA017862 #216 Odessa
GACC GA017863 #167 Warner-Robins
GACC GA017864 #194 Fort Smith
GACC GA017865 #205 Abilene
GACC GA017866 #209 Amarillo
GACC GA017867 #217 Clovis
GACC GA017868 #203 Lubbock
GACC GA0177 Equitable Plaza 30,429,599
GACC GA0084 Plaza Centro I 27,955,965
GACC TA0977 110 Fifth Avenue 23,417,541
GACC TA1578 Sun Harbor Budget Suites 22,425,612
GACC TA2206 641 Avenue of the Americas 17,187,107
GACC TA1369 Gertz Plaza 16,487,755
GACC TA2719 Isles of Vero Beach 12,719,170
GACC TA1632 Aggregate Loan Level Information 11,616,538
GACC TA16321 Harvard House Apartments
GACC TA16322 West Broghram Apartments
GACC TA16323 15097-15101 Greenfield
GACC TA16324 14897-14941 Greenfield
GACC TA16325 16501-16561 Greenfield
GACC TA16326 Covington Terrace
GACC TA16327 Whitmore Plaza
GACC TA16328 Slattor Building
GACC TA16329 Blair House
GACC TA163210 Merton Manor
GACC TA163211 Balmoral/Fairlane
GACC TA163212 Our Place Apartments
GACC TA163213 Tyler Place Apartments
GACC TA163214 Parkway Apartments
GACC TA163215 James Couzens
GACC TA163216 Claridge House Apartments
GACC TA1564 Embarcadero Business Park 8,800,000
GACC TA1355 Park Heights Apartments 8,187,117
GACC TA2947 Wyngate Apartments 7,737,408
GACC TA1402 Old Lyme Marketplace 7,188,665
GACC TA1178 St. Albans Retail Center 6,400,000
GACC TA1093 Mohawk Apartments 5,886,215
GACC TA0826 Technical Career Institute 5,492,519
GACC TA2720 Vineyard Place 5,486,701
GACC TA0696 Aggregate Loan Level Information 5,189,970
GACC TA06961 Best Western Choice Lodge
GACC TA06962 Plaza by the Green
GACC TA1197 30-60/68 Whitestone Expressway 5,192,156
GACC TA1398 Hollis Gardens 4,996,100
GACC BL9702 Woodlake I Apartments 4,952,767
GACC TA1866 Sharp Medical Office 4,546,300
GACC TA1809 LCA Intimates 4,380,029
GACC TA1565 Sierra Fountain Apartments 4,333,089
GACC TA1532 Gladstone Apts. (Howard Gardens) 4,100,909
GACC TA1649 Shalamar Apartments 3,993,870
GACC TA1942 Aggregate Loan Level Information 3,896,936
GACC TA19421 KANDR Building
GACC TA19422 Hark II and Hark III
GACC TA1484 275-277 Forest Avenue 3,894,199
GACC TA0394 Michael's Plaza Shopping Ctr. 3,818,233
GACC TA2328 Holiday Inn Express 3,800,000
GACC TA0179 Clear Creek Office Park 3,742,937
GACC TA2073 McKendree Parking Center 3,645,700
GACC TA2404 The Trend Companies 3,593,443
GACC TA1534 Peck Road Apartments 3,591,967
GACC TA1618 Pottsgrove Townhomes 3,497,162
GACC TA1521 Pacific Plaza 3,195,302
GACC TA0542 Sunset Colony Mobile Home Park 3,137,716
GACC TA2107 Fairmont Square Office Bldg. 3,064,282
GACC TA1012 Salem Industrial Park 2,997,776
GACC TA0746 Best Western Cottonwood Inn 2,988,995
GACC TA1790 95th Street & 1st Avenue 2,800,000
GACC TA0809 577 Broadway 2,591,251
GACC TA1745 Pompano Plaza 2,496,351
GACC TA2144 239 Washington Street 2,230,000
GACC TA1394 4906 El Camino Real 2,173,297
GACC TA1029 Guy Brewer Plaza 2,097,737
GACC TA1951 Cal-Abco Building 1,998,328
GACC TA1335 Tower Apartments 1,797,075
GACC TA2143 84 Washington Street 1,750,000
GACC TA1050 392-94 West Broadway 1,748,037
GACC TA2477 Rancho Mission Plaza 1,727,434
GACC TA1533 Park Alamitas Apartments 1,624,367
GACC TA1043 October Hills 1,597,608
GACC TA0999 Grand Concourse Apartments 1,526,529
GACC TA1666 Coral Reef Motel 1,497,418
GACC TA1024 Silk Greenhouse Building 1,396,899
Total 452,581,252
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(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, Mortgage Pass-Through Certificates, Series 1998-C1,
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;
(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) 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 Trustee, if any,
in each case with evidence of recording thereon;
(v) an original assignment of any related 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;
(vi) 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;
(vii) 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;
(viii) 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, Note or any related security document
have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued 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;
(x) the original or a copy of any guaranty of the obligations of the
mortgagor under the Mortgage Loan together with (A) if
applicable, the 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;
(xi) (A) file 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 mortgagor
at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the 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 Seller, a UCC financing statement
executed by the most recent assignee of record prior to the
Trustee or, if none, by the Originator, evidencing the transfer
of such security interest, either in blank or in favor of the
Trustee;
(xii) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if
the Mortgage, Note or other document or instrument referred to
above was signed on behalf of the Mortgagor pursuant to such
power of attorney;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xiv) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(xv) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage
Loans, if any;
(xvi) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xvii) 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;
(xviii) 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-1
financing statements, if any, submitted for filing with respect
to the Mortgage Loan Seller's security interest in the Reserve
Accounts, Cash Collateral Accounts and Lock-Box Accounts and all
funds contained therein (and UCC-3 financing statements assigning
such security interest to the Trustee on behalf of the
Certificateholders); and
(xix) any other written agreements related to the Mortgage Loan.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Note, Mortgage or other loan document relating to such Mortgage Loan prohibits
or restricts the Seller's right to assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such Mortgage
Loan set forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not delinquent as of the
Cut-off Date (giving effect to any applicable grace periods), and has not been
during the twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving effect
to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid first
lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. If the Mortgaged Property is operated as a nursing
facility, a hospitality property or a multifamily property, the Mortgage,
together with any separate security agreement, similar agreement and UCC
financing statement, if any, establishes and creates a first priority, perfected
security interest, to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. To the Seller's
actual knowledge, the insurer that issued such Title Policy is qualified to do
business in the state in which the related Mortgaged Property is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Except with respect to provisions relating
to default interest, yield maintenance charges and prepayment premiums, such
Mortgage Loan complied with all applicable usury laws in effect at its date of
origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Note and Mortgage and all other documents
and instruments evidencing, guaranteeing, insuring or otherwise securing such
Mortgage Loan have been duly and properly executed by the parties thereto, and
each is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or affecting
the rights of creditors generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and excluding provisions relating to default interest, yield
maintenance charges or prepayment premiums.
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured against loss by hazards of extended coverage in an amount (subject to a
customary deductible) at least equal to the lesser of (1) the outstanding
principal balance of such Mortgage Loan, (2) 100% of the full replacement cost
of the improvements located on such Mortgaged Property and (3) the full
insurable actual cash value of such improvements, and the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the improvements on the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable actual cash value of such Mortgaged Property, (3) the maximum amount
of insurance available under the National Flood Insurance Act of 1968, as
amended, and (4) 100% of the replacement cost of the improvements located on
such Mortgaged Property. The Mortgage requires the Mortgagor to maintain such
insurance in respect of the Mortgaged Property in addition to comprehensive
general liability insurance in amounts generally required by the Seller, and at
least six months rental or business interruption insurance. All such insurance
required by the Mortgage to be maintained is in full force and effect and names
the Originator, the Seller or their respective successors or assigns as
mortgagee, loss payee or additional insured. Each such insurance policy requires
prior notice to the holder of the Mortgage of termination or cancellation, and
no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments, studies or reviews (or an update
of a previously conducted assessment, study or review), which was (were)
performed on behalf of the Seller, or as to which the related report was
delivered to the Seller in connection with its origination or acquisition of
such Mortgage Loan; and the Seller, having made no independent inquiry other
than reviewing the resulting report(s) or studies and/or employing an
environmental consultant to perform or review the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s) or studies. The Seller has not taken any action with respect
to such Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Note have not been impaired, waived, altered or modified in any material
respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
assessments for improvements or other similar outstanding charges affecting the
related Mortgaged Property which are or may become a lien of priority equal to
or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except with respect to
Mortgage Loans the Mortgagor of which is a lessee under a ground lease of a
Mortgaged Property or a combination of a ground lease and a fee simple interest,
the interest of the related Mortgagor in the related Mortgaged Property consists
of a fee simple estate in real property.
(xix) Whole Loan. Except as set forth on Schedule C-1 hereto, each Mortgage
Loan is a whole loan.
(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee. The Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted Encumbrances,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, subleases, licenses or other
agreements, to the extent permitted by law, pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same, to the extent permitted by law. The related assignment of
any Assignment of Leases, not included in a Mortgage, executed and delivered in
favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Assignment of
Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the Title Policy referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel, endorsement to such Title Policy and/or other
due diligence customarily performed by the Seller, the improvements located on
or forming part of such Mortgaged Property comply in all material respects with
applicable zoning laws and ordinances (except to the extent that they may
constitute legal nonconforming uses).
(xxiv) No Material Default. (A) To the Seller's knowledge, there exists no
material default, breach or event of acceleration under the related Mortgage or
Note, and (B) the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller herein.
(xxv) Inspection. In connection with the origination or acquisition of each
Mortgage Loan, the Seller inspected or caused to be inspected (either directly
by the Seller, by its correspondent or by a third party) the Mortgaged Property.
(xxvi) No Equity Participation or Contingent Interest. Except for any
related Excess Interest, the Mortgage Loan contains no equity participation by
the lender, and does not provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxvii) No Advances of Funds. No holder of the Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property (other than a tenant required to make its lease payments directly to
the holder of the related Mortgage Loan), directly or indirectly, for the
payment of any amount required by the Mortgage Loan.
(xxviii) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, (i) the
related Mortgagor or operator of the related Mortgaged Property was in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related Mortgaged
Property as it was then operated, and, (ii) if a related Mortgaged Property is
improved by a skilled nursing, congregate care or assisted living facility, the
most recent inspection or survey by governmental authorities having jurisdiction
in connection with such licenses, permits and authorizations did not cite such
Mortgaged Property for material violations (which shall include only "Level IV"
(or equivalent) violations in the case of skilled nursing facilities) that had
not been cured or as to which a plan of correction had not been submitted to and
accepted by such governmental authorities. To the extent such facility
participates in Medicaid or Medicare, the Seller has not received any notice
that such facility is not in compliance in all material respects with the
requirements of such program, such that such facility's continued participation
in such program be adversely affected.
(xxix) Servicing. The servicing and collection practices used by Seller and
its designees with respect to the Mortgage Loan have been in all material
respects legal, proper and prudent and have met industry standards for servicing
of commercial mortgage loans.
(xxx) Customary Remedies. The related Mortgage or Note, together with
applicable state law, contains customary and enforceable provisions (subject to
the exceptions set forth in paragraph (xii)) such as to render the rights and
remedies of the holders thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
(xxxi) The indebtedness evidenced by a Mortgage Loan is not convertible to
an ownership interest in the related Mortgaged Property or the related
Mortgagor.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property, or to repay the principal of the
Mortgage Loan.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.86OG-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvi) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest, either (1) the ground
lessor's fee interest is subordinated to the lien of the Mortgage or (2) the
following apply to such Ground Lease:
(a) To the actual knowledge of the Seller, such Ground Lease or a
memorandum thereof has been or will be duly recorded; such Ground
Lease (or the related estoppel letter or lender protection
agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the ground lessor's related fee
interest and Permitted Encumbrances;
(c) Except as set forth on Schedule C-1 hereto, the Mortgagor's
interest in such Ground Lease is assignable to the Purchaser and
its successors and assigns upon notice to, but (except in the
case where such consent cannot be unreasonably withheld) without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in
the event that it is so assigned, is further assignable by the
Purchaser and its successors and assigns upon notice to, but
without the need to obtain the consent of, such lessor (except in
the case where such consent cannot be unreasonably withheld);
(d) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there exists
no condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the mortgagee, provided that the
mortgagee has provided the lessor with notice of its lien in
accordance with the provisions of such Ground Lease, and such
Ground Lease, or an estoppel letter or other agreement, further
provides that no notice of termination given under such Ground
Lease is effective against the mortgagee unless a copy has been
delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
(h) Except as set forth on Schedule C-1 hereto, under the terms of
such Ground Lease and the related Mortgage, taken together, any
related insurance proceeds other than in respect of a total or
substantially total loss or taking, will be applied either to the
repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having
the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of any subtenant of the lessee, or in any manner, which would
materially adversely affect the security provided by the related
Mortgage; and
(j) Except as set forth on Schedule C-1 hereto, such Ground Lease
requires the lessor to enter into a new lease with the Seller or
its successors or assigns in the event of a termination of the
Ground Lease by reason of a default by the Mortgagor under the
Ground Lease, including rejection of the Ground Lease in a
bankruptcy proceeding.
(xxxvii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxviii) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of a
release price, the related Note or Mortgage does not require the holder thereof
to release all or any portion of the Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xxxix) Junior Liens. Except as set forth on Schedule C-1 hereto, the
Mortgage Loan does not permit the related Mortgaged Property to be encumbered by
any lien junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof or the satisfaction of
debt service coverage or similar conditions specified therein.
(xl) Due-On-Sale; Due-On-Encumbrance. Except as set forth in Schedule C-1
hereto, each related Mortgage or Loan Agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of the Mortgage or Loan
Agreement, the related Mortgaged Property, or any interest therein, is directly
or indirectly transferred or sold (except for a one-time transfer), or
encumbered in connection with subordinate financing.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is not
a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Defeasance Provisions. Any Mortgage Loan which contains a provision
for any defeasance of mortgage collateral either (A) requires the consent of the
holder of the Mortgage Loan to any defeasance, or (B) permits defeasance (i) no
earlier than two years after the Closing Date (as defined in the Pooling and
Servicing Agreement, dated as of March 1, 1998), (ii) only with substitute
collateral constituting "government securities" within the meaning of Treas.
Reg. ss. 1.86OG-2(a)(8)(i), and (iii) only to facilitate the disposition of the
Mortgaged Property and not as a part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
(xliii) Release or Substitution of Collateral. Such Mortgage Loan does not
permit the release or substitution of collateral if such release or substitution
(a) would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (without regard to clauses (A)(i) or (A)(ii) thereof).
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
<PAGE>
GACC
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND
WARRANTIES OF SELLER REGARDING
THE INDIVIDUAL MORTGAGE LOANS
The following Mortgage Loans are excepted from the representations and
warranties contained in the corresponding paragraph in Exhibit C:
Gertz Plaza and Guy Brewer Plaza. With respect to representation (xxxv)
concerning litigation, as of the closing there was an action pending entitled
Lager Associates v. The City of New York (Index No. 1711/90) commenced by the
Borrower against a tenant.
392 West Broadway. As of the closing, there was an action pending in the
Supreme Court of the State of New York, County of New York, entitled Application
of Jessica Rose, Petitioner, for the Judicial Dissolution of SCAN Enterprises
Corp. (Index No. 97/106890), as disclosed in the Commitment Letter and as more
fully described in the Mortgage File. The proceeds of the Loan were to be used
post-closing to effect a Stipulation of Settlement of this action. A copy of the
Stipulation of Settlement is contained in the Mortgage File.
I. Sunset Colony.
A. Rep (xxxvi): This loan is secured by the borrower's interest
in ground leases covering four parcels. The leases covering
two of the parcels (the "Short-Term Leases") expire in 2003,
while the loan matures in 2028. The Short-Term Leases may or
may not be renewed. The leases covering the other two
parcels extend for more than ten years beyond the maturity
of the loan. The parcels covered by the Short-Term Leases,
and the rents arising therefrom, were not considered in
determining the fair market value of the property or the LTV
or DSCR for the loan.
B. Rep (xxxvi) and (xxiii): The property is used as a mobile
home park, which has a clubhouse to provide recreational
facilities. The clubhouse is located on a parcel covered by
a Short-Term Lease. The mortgage requires borrower to
construct a new clubhouse on a parcel covered by a Long-Term
Lease prior to the expiration of the Short-Term Leases and
at closing the lender held back a $200,000 cash reserve to
pay for construction of the new clubhouse. While the current
clubhouse is not technically outside the boundary lines of
the mortgaged property, it is outside of the property
covered by the Long-Term Leases and it is unclear how it was
treated in the appraisal received by the lender.
II. Embarcadero.
A. Rep (xxxvi)(f): The lender is permitted only the same grace
period as is provided to the tenant within which to cure
defaults under the ground lease.
B. Rep (xxxvi)(g): The lease term is 3 months short; it expires
on 12/1/37 and the loan matures on 3/1/28.
C. Rep (xxiv): The borrower is in default under the
post-closing agreement because it has failed to amend the
ground lease to fix the property description and to amend
the loan documents to reflect the new description. When the
lease was executed the property description erroneously
included a 3-foot strip on one side that actually belonged
to the property next door and failed to include a 3-foot
strip on the other side that should be part of the leased
parcel. Neither strip contains any improvements or is
necessary for access.
D. Rep (xxi): There is an escrow deposit created under the
purchase contract pursuant to which the borrower acquired
the property, to cover some closing adjustments between
borrower and its seller, which is held by Pacific Bank, not
the lender or its agent. Pacific Bank has acknowledged the
security interest granted to the lender in the borrower's
interest in the escrow and agreed to recognize the lender
upon notice of an event of default.
E. Rep xxxvi (j): The ground lease itself does not require the
landlord to enter into a new lease if the old one is
cancelled, including because of a tenant's bankruptcy, but
the landlord did enter into an Estoppel and Agreement at
closing that does require the landlord to enter into such a
new lease.
III. 641 Sixth Avenue.
A. Rep (v): Prior to closing, the borrower had entered into an
agreement transferring any right to use the eighth (top)
floor of the property for residential purposes to another
building, which is used as an AIDS hospice which was
reflected in the title policy. At closing, the lender agreed
that it would consent to further transfers of residential
rights. The residential use rights for the second, third and
seventh floors have been transferred to the AIDS hospice
since closing, with the lender's consent, but without
amending the title policy. As a result, this encumbrance is
not reflected in the title policy. The property is used for
offices, so the transfer of residential use rights does not
seem material and once the residential rights for the eighth
floor were transferred, the lower floors of the property
could not have been used for residential purposes in any
event.
IV. Old Lyme Marketplace.
A. Rep (xxxv): At closing, the borrower was the defendant in a
slip and fall case (Church v. Old Lyme Stores Limited
Partnership) (Conn. Super. Ct., Middlesex County, filed Nov.
11, 1997). The case is covered by insurance.
V. 4906 El Camino Real
One of the Tenants holds a right of first refusal to purchase the property,
which was endorsed over and insured against under the title policy. A
subordination, non-disturbance and attornment agreement specifically
subordinating this right was not obtained.
VI. Sharp Medical Offices
A. One of the tenants holds a right of first refusal to purchase
the Mortgaged Property, which was endorsed over and insured against under the
Title Policy. There is no subordination, non-disturbance and attornment
agreement to subordinate the right. Borrower has also certified that they will
not sell the property during the period of the loan for less than the
outstanding amount of the Mortgage Loan.
B. Exception to (xl) Junior Liens. There is a junior mortgage on
this property, which was consented to by lender. The lender and the subordinate
lender signed a Subordination and standstill agreement which subordinated that
mortgage to GACC's mortgage.
C. Exception to (xxiv). There are two outstanding post-closing
obligations. Within six months of closing, Borrower must repair the light
fixtures and complete the retrofit on the restrooms to make them comply with the
ADA. Within thirty days of closing, Borrower must have all the tenants initial
the change to their estoppel certificates so that the estoppel certificates are
to the "benefit of Deutsche Bank AG, New York Branch", instead of to the
"benefit of TransAtlantic Capital Company," as Deutsche Bank is the lender and
the estoppel certificates were issued to TransAtlantic.
VII. Sierra Fountain
Exception to (xxxv) Litigation. There is a pending litigation on the
property regarding a slip and fall incident, in which a third party is suing the
Borrower. Guarantor signed a separate indemnity to cover the costs and
consequences of the pending litigation.
VIII. Trend
Reps (xxviii) and (xxiv). With respect to Trend, the building located at
3801 Catalina was operating under a temporary certificate of occupancy at the
time the loan closed. Issuance of a permanent certificate of occupancy was
subject to installation of a fire hydrant. Mortgagor entered into a post closing
agreement requiring the installation of the fire hydrant and delivery of a copy
of the permanent certificate of occupancy by February 21, 1998.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of [SELLER]
I, ______________________, a ______________________ of
______________________ (the "Seller"), hereby certify as follows:
The Seller is a corporation duly organized and validly existing under the
laws of the State of __________.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Seller, which Certificate of Incorporation
and By-Laws are on the date hereof, and have been at all times in full force and
effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified officer
or authorized signatory of the Seller and his or her genuine signature is set
forth opposite his or her name:
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________ __, 1998.
By:------------------------
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected or
appointed, as the case may be, qualified and acting __________ of the Seller and
that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________ __, 1998.
By:------------------------
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of [SELLER]
In connection with the execution and delivery by ______________________
(the "Seller") of, and the consummation of the transaction contemplated by, that
certain Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this _____ day of __________, 1998.
[SELLER]
By:------------------------
Name:
Title:
<PAGE>
EXHIBIT D-3A
FORM OF CORPORATE OPINION OF SELLER
March 1, 1998
Addressees Listed on Schedule A
Re: Deutsche Mortgage & Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates, Series
1998 C-1
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the "Mortgage Loan
Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
(the "Depositor") and ______________________________________, a ______________
corporation (the "Seller"), relating to the sale by the Seller and the purchase
by the Depositor of the Mortgage Loans. We have acted as special counsel to the
Seller in connection with the aforementioned transaction. Capitalized terms used
herein but not defined herein have the respective meanings given them in the
Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Mortgage Loan Purchase Agreement, and such certificates,
corporate and public records, agreements and instruments and other documents,
including, among other things, the documents delivered on the Closing Date, as
we have deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to any facts
material to such opinions that were not known to us, we have relied upon
statements and representations of officers and other representatives of the
Seller.
We have also assumed (other than with respect to the Seller) that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments, and
that such documents, agreements and instruments are valid, binding and
enforceable obligations of such parties. As used herein, "to our knowledge"
means the conscious awareness, without independent investigation, of facts or
other information by any lawyer in our firm actively involved in the
transactions contemplated by the Mortgage Loan Purchase Agreement.
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and [___________________], where expressly
referred to herein, the federal laws of the United States of America (in each
case without regard to conflicts of laws principles).
Based upon and subject to the foregoing, we are of the opinion that:
1. The Seller is a corporation validly existing under the laws of the
State of ________________, with full corporate power and authority to
execute, deliver and perform its obligations under the Mortgage Loan
Purchase Agreement and all the transactions contemplated thereby,
including, but not limited to, the power and authority to sell, assign and
transfer the Mortgage Loans in accordance with the Mortgage Loan Purchase
Agreement, the Seller has taken all necessary action to authorize the
execution, delivery and performance of the Mortgage Loan Purchase Agreement
by it, and the Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by it.
2. The Mortgage Loan Purchase Agreement is the legal, valid and
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of banks, and by general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law),
and except to the extent rights to indemnity and contribution may be
limited by applicable law.
3. The execution and delivery of the Mortgage Loan Purchase Agreement
by the Seller and the performance of its obligations under the Mortgage
Loan Purchase Agreement will not conflict with any provision of any law or
regulation to which the Seller is subject, or conflict with, result in a
breach of or constitute a default under any of the terms, conditions or
provisions of the Seller's organizational documents or by-laws or, to our
knowledge, any material agreement or instrument to which the Seller is a
party or by which it is bound, or, to our knowledge, any order or decree
applicable to the Seller, or result in the creation or imposition of any
lien on any of the Seller's assets or property, in each case which would
materially and adversely affect the ability of the Seller to perform its
obligations under the Mortgage Loan Purchase Agreement.
4. To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Seller in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of the Mortgage
Loans or the ability of the Seller to perform its obligations under the
Mortgage Loan Purchase Agreement.
5. To our knowledge, the Seller is not in default with respect to any
order or decree of any court or any order, regulation or decree of any
federal, state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect its ability to
perform its obligations under the Mortgage Loan Purchase Agreement.
6. To our knowledge, no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution,
delivery and performance by the Seller of or compliance by the Seller with
the Mortgage Loan Purchase Agreement or the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, other
than those which have been obtained by the Seller.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
Schedule A
Deutsche Mortgage & Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
<PAGE>
EXHIBIT D-3B
FORM OF 10b-5 LETTER
March 1, 1998
Deutsche Mortgage and Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
Ladies and Gentlemen:
This letter being delivered to you pursuant to Section 8(e) of the Mortgage
Loan Purchase Agreement, dated March 1, 1998 (the "Mortgage Loan Purchase
Agreement"), between Deutsche Mortgage and Asset Receiving Corporation (the
"Depositor"), and __________________________ (the "Seller"), relating to the
sale by the Seller and the purchase by the Depositor of certain commercial and
multifamily mortgage loans (the "Mortgage Loans"). The Depositor will assign and
transfer the Mortgage Loans to a trust fund created pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), among the Depositor, Banc One Mortgage Capital Markets, LLC, as
servicer (the "Servicer") and as special servicer (the "Special Servicer"), and
LaSalle National Bank, as trustee (the "Trustee"). The Depositor's Commercial
Mortgage Pass-Through Certificates, Series, 1998-C1 (the "Certificates") will be
issued in exchange for the Mortgage Loans pursuant to the terms of the Pooling
and Servicing Agreement. The Class X, Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates (collectively, the "Offered Certificates") are
being offered by the Prospectus dated March 16, 1998 (the "Base Prospectus"), as
supplemented by the Prospectus Supplement dated March [__], 1998 (the
"Prospectus Supplement" and collectively with the Base Prospectus, the
"Prospectus") and the Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class Q-1, Class Q-2, Class R and Class LR Certificates (the "Private
Certificates") are being offered by the Private Placement Memorandum dated March
[_], 1998 (the "Memorandum"). We have acted as special counsel to the Seller in
connection with the aforementioned transaction. [In addition, we have acted as
counsel to the Seller in connection with the origination of the Mortgage Loans.]
Capitalized terms used herein but not defined herein have the respective
meanings given them in the Mortgage Loan Purchase Agreement.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Prospectus or the
Memorandum, and we do not pass upon or assume any responsibility therefor.
However, in the course of our review of the Prospectus and the Memorandum, we
have attended certain conferences and participated in conversations with
representatives of the Seller, the Depositor, representatives of the Depositor,
the Servicer, the Special Servicer and the Trustee. On the basis of the
information which we gained in the course of the representation referred to
above and our examination of the documents referred in this letter, considered
in light of our understanding of applicable law and the experience we have
gained through our practice, nothing has come to our attention in the course of
our review of the Prospectus and Memorandum which causes us to believe that, as
of their respective dates or as of the date hereof, the Prospectus or Memorandum
contained or contain any untrue statement of a material fact or omitted or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
insofar as statements relate to the Mortgage Loans, including, without
limitation, the related mortgaged properties, borrowers and managers; it being
understood that we express no view as to any information incorporated by
reference in the Prospectus or Memorandum or as to the adequacy or accuracy of
the financial, numerical, statistical or quantitative information included in
the Prospectus or Memorandum.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT H-4
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 1, 1998, between Morgan Stanley Mortgage Capital Inc., as
seller (the "Seller"), and Deutsche Mortgage & Asset Receiving Corporation, as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch
IBCA, Inc. and Moody's Investors Service, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of March 1, 1998
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor, Banc
One Mortgage Capital Markets, LLC, as servicer (in such capacity, the
"Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle National Bank, as trustee (in such capacity, the "Trustee"), and ABN
AMRO Bank N.V., as fiscal agent. Capitalized terms not otherwise defined herein
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to Deutsche
Morgan Grenfell Inc., Morgan Stanley & Co. Incorporated and Llama Company, L.P.
(together, the "Underwriters") pursuant to an underwriting agreement dated March
24, 1998 (the "Underwriting Agreement"). The Purchaser intends to sell the
remaining Certificates (the "Non-Registered Certificates") pursuant to a
certificate purchase agreement dated March 24, 1998 (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 30, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on March 1, 1998 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$299,073,774.00 , subject to a variance of plus or minus 5%. The purchase price
for the Mortgage Loans shall be determined and paid to the Seller in accordance
with the terms of an allocation agreement dated March 24, 1998 (the "Allocation
Agreement"), to which the Seller and Purchaser, among others, are parties.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdbacks in accordance with the Allocation Agreement) and the
issuance of the Certificates, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse, all the right,
title and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, including all interest and principal
received or receivable by the Seller on or with respect to the Mortgage Loans
after the Cut-off Date, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans; provided, however, that in the case of any Mortgage Loan with an
Anticipated Repayment Date prior to maturity (each an "ARD Loan") accruing
Excess Interest at an annual rate of greater than 2%, such ARD Loan shall be
deemed to have been modified to provide that, as of the Cut-off Date, such ARD
Loan shall accrue Excess Interest at an annual rate of no more than 2%;
provided, further, that with respect to such limitation of Excess Interest, the
related borrowers shall be third-party beneficiaries of such modification of
such ARD Loan. The Purchaser shall be entitled to (and, to the extent received
by or on behalf of the Seller, the Seller shall deliver or cause to be delivered
to or at the direction of the Purchaser) all scheduled payments of principal,
and interest due thereon, due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date; provided, however, that all scheduled payments of principal, and
interest accrued but not paid or due thereon, due on or before the Cut-off Date
and collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Note referred to in clause (i) of Exhibit B has been delivered by the
Seller with respect to each such Mortgage File. In the event Seller fails to so
deliver each such Mortgage File to the Trustee, the Purchaser and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law. If the Seller 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 clauses (ii),
(iv), (viii), (xi)(A) and (xii) of Exhibit B, 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 this Section 2(b) 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 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 Trustee, 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 or at the direction of the Purchaser (or any
subsequent owner of the affected Mortgage Loan, including without limitation the
Trustee) within 180 days of the Closing Date (or within such longer period after
the Closing Date as the Purchaser (or such subsequent owner) may consent to,
which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
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
clause (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Seller has delivered to the
Trustee a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B covering all the
Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdbacks
in accordance with the Allocation Agreement) has been received by the Seller and
the issuance of the Certificates, the Trustee shall be authorized to release to
the Purchaser or its designee all of the Mortgage Files in the Trustee's
possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B but that are reasonably required to
service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller shall deliver a copy of the related
Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
(f) It is further acknowledged and agreed by the Seller that the Purchaser
intends to convey all right, title and interest of the Purchaser in and to the
Mortgage Loans and all rights and remedies under this Agreement to the Trustee,
including, without limitation, all rights and remedies as may be available under
applicable law to the Purchaser in the event of a breach of a representation or
warranty pursuant to Section 4(a) hereof or in the event of a Defect; provided,
that the Trustee shall be a third-party beneficiary of this Agreement and shall
be entitled to enforce any obligations of the Mortgage Loan Seller hereunder in
connection with a breach of any such representation or warranty or a Defect as
if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), each of
the representations and warranties set forth in Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of New York,
and is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance of, and compliance with, the terms of this
Agreement by the Seller, will not violate the Seller's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it
is a party or which is applicable to it or any of its assets, in each
case which materially and adversely affect the ability of the Seller to
carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers, and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
(viii) Except with respect to Morgan Stanley & Co.
Incorporated, an affiliate acting as Underwriter, neither the Seller
nor anyone acting on its behalf has (A) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in
any Certificate or any other similar security to any person in any
manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (D) made any general
solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of
any of the acts described in clauses (A) through (E) above) would
constitute or result in a violation of the Securities Act or any state
securities law relating to or in connection with the issuance of the
Certificates or require registration or qualification pursuant to the
Securities Act or any state securities law of any Certificate not
otherwise intended to be a Registered Certificate. In addition, the
Seller will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any of the Certificates or interests therein. For purposes
of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans
or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-1 through A-23, inclusive, of Annex A
to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (as defined in Section 9)
under the headings "Summary of Prospectus Supplement--The Mortgage
Loans", "Risk Factors--The Mortgage Loans" and "Description of the
Mortgage Pool", set forth on Annex A to the Prospectus Supplement and
(to the extent it contains information consistent with that on such
Annex A) set forth on the Diskette, does not contain any untrue
statement of a material fact or (in the case of the Memorandum, when
read together with the other information specified therein as being
available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(x) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby,
other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the
Purchaser, (2) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained
or made and (3) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance of, and compliance with, the terms of
this Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance of, and compliance
with, the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchasers and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Upon discovery by any of the parties hereto of any Defect (as defined
in the Pooling and Servicing Agreement) in respect of the Mortgage File for any
Mortgage Loan or a breach of any representation or warranty made pursuant to
Section 4(a) and set forth in Exhibit C, which Defect or breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Servicer (or the Special Servicer in the case of a Specially Serviced Mortgage
Loan) or the Trustee. Within 90 days of receipt of notice by the Seller, from
the Servicer, the Special Servicer or the Trustee of such breach or Defect, the
Seller shall cure such Defect or breach, as the case may be, in all material
respects or repurchase the affected Mortgage Loan from the then owner(s) thereof
at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement), on a whole-loan, servicing released basis, by payment of such
Purchase Price by wire transfer of immediately available funds to the account
designated by such owner(s); provided, however, that in lieu of effecting any
such repurchase, the Seller will be permitted to deliver a Qualifying Substitute
Mortgage Loan and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to the terms and conditions of the Pooling and
Servicing Agreement. Conveyance of such Mortgage Loans shall be made free and
clear of all Liens and encumbrances created or suffered by the Purchaser or any
subsequent holder.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 86OG(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender
promptly or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to cure, to repurchase, or to substitute for, any Mortgage Loan in
accordance with Section 6(a) or 6(b) or disputes its obligation to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with either
such subsection, the Purchaser or its successors and assigns may take such
action as is appropriate to enforce such payment or performance, including,
without limitation, the institution and prosecution of appropriate proceedings.
To the extent the Purchaser prevails in such proceeding, the Seller shall
reimburse the Purchaser for all necessary and reasonable costs and expenses
incurred in connection with the enforcement of such obligation of the Seller to
cure, to repurchase, or to substitute for, any Mortgage Loan in accordance with
Section 6(a) or 6(b).
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, Wickersham & Taft, 100 Maiden Lane,
New York, New York 10038 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and
the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, the Purchaser or the Purchaser's designee, as the case may be,
all documents and funds required to be so delivered pursuant to Section
2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been
complied with, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to
be complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees,
costs and expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the Secretary
of State for the State of New York, dated not earlier than 30 days prior to the
Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or the Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Prospectus
Supplement--The Mortgage Loans", "Risk Factors--The Mortgage Loans" and/or
"Description of the Mortgage Pool" or contained on Annex A to the Prospectus
Supplement (exclusive of the Loan Detail), and such information does not
represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth in or made pursuant to Section 4;
provided, that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement of a material fact or omission of a
material fact necessary to make the statements made, in light of the
circumstances in which they were made, not misleading, was made as a result of
an error in the manipulation of, or calculations based upon, the Loan Detail.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated March 16,
1998, as supplemented by the prospectus supplement dated March 24, 1998 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 24, 1998, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation 1, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "Indemnified Party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "Indemnifying Party") under this Section 9, notify
the Indemnifying Party in writing of the commencement thereof; but the omission
to notify the Indemnifying Party will not relieve it from any liability that it
may have to any Indemnified Party otherwise than under this Section 9. In case
any such action is brought against any Indemnified Party and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or Indemnified Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Indemnified Parties. Upon receipt of notice from the
Indemnifying Party to such Indemnified Party of its election to assume the
defense of such action and approval by the Indemnified Party of counsel, which
approval will not be unreasonably withheld, the Indemnifying Party will not be
liable for any legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof, unless (i) the Indemnified Party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
Indemnifying Party, representing all the Indemnified Parties under Section 9(a)
and Section 1 of the Underwriting Agreement who are parties to such action),
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party has authorized the employment of counsel for the Indemnified
Party at the expense of the Indemnifying Party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii). Unless it shall assume the defense of
any proceeding, the Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there shall be a
final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party, but only to the extent provided in paragraph (a) of this
Section 9, from and against any loss or liability by reason of such settlement
or judgment. If the Indemnifying Party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed, or, if such
settlement provides for release of the Indemnified Party in connection with all
matters relating to the proceeding which has been asserted against the
Indemnified Party in such proceeding by the other parties to such settlement,
without the consent of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Indemnified
Party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
certified mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to Deutsche Mortgage & Asset Receiving Corporation, One
International Place, Room 520, Boston, Massachusetts 02110, Attention: R.
Douglas Donaldson, facsimile no. (617) 951-7650, with a copy to Anna H. Glick,
Esq., Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
facsimile no. (212) 504-6666, or such other address or facsimile number as may
hereafter be furnished to the Seller in writing by the Purchaser; and if to the
Seller, addressed to Morgan Stanley & Co. Incorporated, 1585 Broadway, New York,
New York 1036, Attention: Russ Rahbany, facsimile no. (212) 761-0524, or to such
other address or facsimile number as the Seller may designate in writing to the
Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
MORGAN STANLEY MORTGAGE CAPITAL INC.
By:_____________________________________________
Name:
Title:
By:_____________________________________________
Name:
Title:
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
By:_____________________________________________
Name:
Title:
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, 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;
(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) whether such Mortgage Loan has an Anticipated Repayment Date;
(i) the Primary Servicing Fee Rate;
(j) whether the Mortgage Loan is an Actual/360 Loan or an Actual/365
Loan; and
(k) whether such Mortgage Loan is a Healthcare 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. Certain of the above-referenced items are described on the
Mortgage Loan Schedule attached hereto. Certain of the above-referenced items
are described on Exhibit B-1 and Exhibit B-2 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
<PAGE>
Cut-Off Date
Loan Loan Principal
Seller Number Property Name Balance
------ ------ ------------ -------
MS MS1 Hancock Village Apartments 63,109,462
MS MS2 Elm Ridge Center 29,965,579
MS MS3 Meadowglen Apartments 23,000,000
MS MS4 Harbor Place Shopping Center 11,416,416
MS MS5 Shadowbrook Apartments 10,979,428
MS MS6 Tiburon Lodge 10,816,809
MS MS7 Collegiate Village Inn Apartments 9,256,343
MS MS8 Wright State Housing 7,778,721
MS MS9 Village Park 7,407,772
MS MS10 Park City West 7,287,970
MS MS11 The Inn at Morgan Hill 6,982,686
MS MS12 Imperial Estates 6,928,563
MS MS13 Lawrence Square Manor Apts. 6,687,984
MS MS14 Hacienda Heights Shopping Center 5,950,563
MS MS16 820 Business Park 5,486,276
MS MS17 1700 DeAnza 5,389,770
MS MS18 Kessler Hills Shopping Center 5,384,034
MS MS19 100 Dorset Street 5,290,941
MS MS20 Branson Towers Inn 5,174,373
MS MS21 Sea Venture 5,088,018
MS MS22 Hampton Inn, Rockford 4,880,948
MS MS23 Hampton Inn, Madison 4,582,114
MS MS24 Carefree Cove 4,392,749
MS MS25 North Main Place 4,242,816
MS MS26 LeMans Village 3,989,353
MS MS27 Hampton Inn, Green Bay 3,984,447
MS MS28 Hickory Hills 3,593,757
MS MS29 Extra Space Self Storage 3,403,768
MS MS31 Hampton Inn, LaCrosse 3,187,558
MS MS30 Hampton Inn, Milwaukee 3,187,558
MS MS32 Comfort Suites - Atlanta 3,042,883
MS MS33 Arbor Glen Apartments 2,892,152
MS MS34 Genesis Square 2,647,870
MS MS35 Mini U Storage 2,204,345
MS MS36 Aggregate Loan Level Information 2,195,187
MS MS36A United Plumbing - 582 Quaker Hwy.
MS MS36B Unite Plumbing - 361 Jefferson Blvd.
MS MS38 Oak Harbor Best Western 2,094,838
MS MS39 AAA County Line Self Storage 1,880,177
MS MS40 Super 8, Appleton 1,793,001
MS MS41 All Storage 1,496,444
Total 299,073,774
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(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, Mortgage Pass-Through
Certificates, Series 1998-C1, 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;
(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) 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 Trustee, if
any, in each case with evidence of recording thereon;
(v) an original assignment of any related 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;
(vi) 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;
(vii)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;
(viii) 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, Note or any related security document have been modified or the
Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued 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;
(x) the original or a copy of any guaranty of the obligations of the
mortgagor under the Mortgage Loan together with (A) if applicable, the
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;
(xi) (A) file 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 mortgagor at the Mortgaged Property (in each case
with evidence of filing thereon) and which were in the possession of the
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 Seller, a UCC financing statement executed by the most recent
assignee of record prior to the Trustee or, if none, by the Originator,
evidencing the transfer of such security interest, either in blank or in
favor of the Trustee;
(xii)the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Note or other document or instrument referred to above was signed
on behalf of the Mortgagor pursuant to such power of attorney;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xiv)the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(xv) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage Loans, if
any;
(xvi)copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xvii) 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;
(xviii) 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-1 financing statements, if any,
submitted for filing with respect to the Mortgage Loan Seller's security
interest in the Reserve Accounts, Cash Collateral Accounts and Lock-Box
Accounts and all funds contained therein (and UCC-3 financing statements
assigning such security interest to the Trustee on behalf of the
Certificateholders); and
(xix) any other written agreements related to the Mortgage Loan.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Note, Mortgage or other loan document relating to such Mortgage Loan prohibits
or restricts the Seller's right to assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such Mortgage
Loan set forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not delinquent as of the
Cut-off Date (giving effect to any applicable grace periods), and has not been
during the twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving effect
to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid first
lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. If the Mortgaged Property is operated as a nursing
facility, a hospitality property or a multifamily property, the Mortgage,
together with any separate security agreement, similar agreement and UCC
financing statement, if any, establishes and creates a first priority, perfected
security interest, to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. To the Seller's
actual knowledge, the insurer that issued such Title Policy is qualified to do
business in the state in which the related Mortgaged Property is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Except with respect to provisions relating
to default interest, yield maintenance charges and prepayment premiums, such
Mortgage Loan complied with all applicable usury laws in effect at its date of
origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Note and Mortgage and all other documents
and instruments evidencing, guaranteeing, insuring or otherwise securing such
Mortgage Loan have been duly and properly executed by the parties thereto, and
each is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or affecting
the rights of creditors generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and excluding provisions relating to default interest, yield
maintenance charges or prepayment premiums.
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured against loss by hazards of extended coverage in an amount (subject to a
customary deductible) at least equal to the lesser of (1) the outstanding
principal balance of such Mortgage Loan, (2) 100% of the full replacement cost
of the improvements located on such Mortgaged Property and (3) the full
insurable actual cash value of such improvements, and the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the improvements on the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable actual cash value of such Mortgaged Property, (3) the maximum amount
of insurance available under the National Flood Insurance Act of 1968, as
amended, and (4) 100% of the replacement cost of the improvements located on
such Mortgaged Property. The Mortgage requires the Mortgagor to maintain such
insurance in respect of the Mortgaged Property in addition to comprehensive
general liability insurance in amounts generally required by the Seller, and at
least six months rental or business interruption insurance. All such insurance
required by the Mortgage to be maintained is in full force and effect and names
the Originator, the Seller or their respective successors or assigns as
mortgagee, loss payee or additional insured. Each such insurance policy requires
prior notice to the holder of the Mortgage of termination or cancellation, and
no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments, studies or reviews (or an update
of a previously conducted assessment, study or review), which was (were)
performed on behalf of the Seller, or as to which the related report was
delivered to the Seller in connection with its origination or acquisition of
such Mortgage Loan; and the Seller, having made no independent inquiry other
than reviewing the resulting report(s) or studies and/or employing an
environmental consultant to perform or review the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s) or studies. The Seller has not taken any action with respect
to such Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Note have not been impaired, waived, altered or modified in any material
respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
assessments for improvements or other similar outstanding charges affecting the
related Mortgaged Property which are or may become a lien of priority equal to
or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except with respect to
Mortgage Loans the Mortgagor of which is a lessee under a ground lease of a
Mortgaged Property or a combination of a ground lease and a fee simple interest,
the interest of the related Mortgagor in the related Mortgaged Property consists
of a fee simple estate in real property.
(xix) Whole Loan. Except as set forth on Schedule C-1 hereto, each Mortgage
Loan is a whole loan.
(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee. The Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted Encumbrances,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, subleases, licenses or other
agreements, to the extent permitted by law, pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same, to the extent permitted by law. The related assignment of
any Assignment of Leases, not included in a Mortgage, executed and delivered in
favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Assignment of
Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the Title Policy referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel, endorsement to such Title Policy and/or other
due diligence customarily performed by the Seller, the improvements located on
or forming part of such Mortgaged Property comply in all material respects with
applicable zoning laws and ordinances (except to the extent that they may
constitute legal nonconforming uses).
(xxiv) No Material Default. (A) To the Seller's knowledge, there exists no
material default, breach or event of acceleration under the related Mortgage or
Note, and (B) the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller herein.
(xxv) Inspection. In connection with the origination or acquisition of each
Mortgage Loan, the Seller inspected or caused to be inspected (either directly
by the Seller, by its correspondent or by a third party) the Mortgaged Property.
(xxvi) No Equity Participation or Contingent Interest. Except for any
related Excess Interest, the Mortgage Loan contains no equity participation by
the lender, and does not provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxvii) No Advances of Funds. No holder of the Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property (other than a tenant required to make its lease payments directly to
the holder of the related Mortgage Loan), directly or indirectly, for the
payment of any amount required by the Mortgage Loan.
(xxviii) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, (i) the
related Mortgagor or operator of the related Mortgaged Property was in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related Mortgaged
Property as it was then operated, and, (ii) if a related Mortgaged Property is
improved by a skilled nursing, congregate care or assisted living facility, the
most recent inspection or survey by governmental authorities having jurisdiction
in connection with such licenses, permits and authorizations did not cite such
Mortgaged Property for material violations (which shall include only "Level IV"
(or equivalent) violations in the case of skilled nursing facilities) that had
not been cured or as to which a plan of correction had not been submitted to and
accepted by such governmental authorities. To the extent such facility
participates in Medicaid or Medicare, the Seller has not received any notice
that such facility is not in compliance in all material respects with the
requirements of such program, such that such facility's continued participation
in such program be adversely affected.
(xxix) Servicing. The servicing and collection practices used by Seller and
its designees with respect to the Mortgage Loan have been in all material
respects legal, proper and prudent and have met industry standards for servicing
of commercial mortgage loans.
(xxx) Customary Remedies. The related Mortgage or Note, together with
applicable state law, contains customary and enforceable provisions (subject to
the exceptions set forth in paragraph (xii)) such as to render the rights and
remedies of the holders thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
(xxxi) The indebtedness evidenced by a Mortgage Loan is not convertible to
an ownership interest in the related Mortgaged Property or the related
Mortgagor.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property, or to repay the principal of the
Mortgage Loan.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.86OG-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvi) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest, either (1) the ground
lessor's fee interest is subordinated to the lien of the Mortgage or (2) the
following apply to such Ground Lease:
(a) To the actual knowledge of the Seller, such Ground Lease or
a memorandum thereof has been or will be duly recorded; such
Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor)
permits the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan, with the
exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the ground lessor's
related fee interest and Permitted Encumbrances;
(c) Except as set forth on Schedule C-1 hereto, the Mortgagor's
interest in such Ground Lease is assignable to the Purchaser
and its successors and assigns upon notice to, but (except
in the case where such consent cannot be unreasonably
withheld) without the consent of, the lessor thereunder (or,
if such consent is required, it has been obtained prior to
the Closing Date) and, in the event that it is so assigned,
is further assignable by the Purchaser and its successors
and assigns upon notice to, but without the need to obtain
the consent of, such lessor (except in the case where such
consent cannot be unreasonably withheld);
(d) Such Ground Lease is in full force and effect, and the
Seller has received no notice that an event of default has
occurred thereunder, and, to the Seller's actual knowledge,
there exists no condition that, but for the passage of time
or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice
of any default by the lessee to the mortgagee, provided that
the mortgagee has provided the lessor with notice of its
lien in accordance with the provisions of such Ground Lease,
and such Ground Lease, or an estoppel letter or other
agreement, further provides that no notice of termination
given under such Ground Lease is effective against the
mortgagee unless a copy has been delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground
Lease) to cure any default under such Ground Lease, which is
curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground
Lease;
(g) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less
than ten years beyond the Stated Maturity Date of the
related Mortgage Loan;
(h) Except as set forth on Schedule C-1 hereto, under the terms
of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds other than in
respect of a total or substantially total loss or taking,
will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan together
with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as commercially
unreasonable by the Seller; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee,
or in any manner, which would materially adversely affect
the security provided by the related Mortgage; and
(j) Except as set forth on Schedule C-1 hereto, such Ground
Lease requires the lessor to enter into a new lease with the
Seller or its successors or assigns in the event of a
termination of the Ground Lease by reason of a default by
the Mortgagor under the Ground Lease, including rejection of
the Ground Lease in a bankruptcy proceeding.
(xxxvii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxviii) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of a
release price, the related Note or Mortgage does not require the holder thereof
to release all or any portion of the Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xxxix) Junior Liens. Except as set forth on Schedule C-1 hereto, the
Mortgage Loan does not permit the related Mortgaged Property to be encumbered by
any lien junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof or the satisfaction of
debt service coverage or similar conditions specified therein.
(xl) Due-On-Sale; Due-On-Encumbrance. Except as set forth in Schedule C-1
hereto, each related Mortgage or Loan Agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of the Mortgage or Loan
Agreement, the related Mortgaged Property, or any interest therein, is directly
or indirectly transferred or sold (except for a one-time transfer), or
encumbered in connection with subordinate financing.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is not
a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Defeasance Provisions. Any Mortgage Loan which contains a provision
for any defeasance of mortgage collateral either (A) requires the consent of the
holder of the Mortgage Loan to any defeasance, or (B) permits defeasance (i) no
earlier than two years after the Closing Date (as defined in the Pooling and
Servicing Agreement, dated as of March 1, 1998), (ii) only with substitute
collateral constituting "government securities" within the meaning of Treas.
Reg. ss. 1.86OG-2(a)(8)(i), and (iii) only to facilitate the disposition of the
Mortgaged Property and not as a part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
(xliii) Release or Substitution of Collateral. Such Mortgage Loan does not
permit the release or substitution of collateral if such release or substitution
(a) would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (without regard to clauses (A)(i) or (A)(ii) thereof).
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
<PAGE>
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND
WARRANTIES OF SELLER REGARDING
THE INDIVIDUAL MORTGAGE LOANS
The following Mortgage Loans are excepted from the representations and
warranties contained in the corresponding paragraph in Exhibit C:
(xxxv) Litigation.
A borrower related entity is involved in on-going litigation regarding past
rent control related disputes at the subject property.
(xxxviii) Lien Releases.
Hancock Village Apartments (MSI)
Requires release of certain parts of the collateral under certain
conditions.
Elm Ridge Center (MS2)
Requires release of certain parts of the collateral under certain
conditions.
Collegiate Village Inn Apartments (MS7)
Requires release of certain parts of the collateral under certain
conditions.
(xxxix) Junior Liens.
Six Mortgage Loans, including the Hampton Inn, Rockford (MS22); the Hampton
Inn, Madison (MS23); the Hampton Inn, Green Bay (MS27); the Hampton Inn,
Milwaukee (MS30); the Hampton In, LaCrosse (MS31); and Super 8 (MS40), Appleton,
permit future subordinate, secured financing, providing the following conditions
are met:
(1) The aggregate indebtedness shall not exceed the lesser of : (a) an
amount such that the DSCR at the time of the funding of the secondary financing
(or anytime thereafter) exceeds 145% (based on lender's estimate of net
underwritable cash flow); and (b) an amount equal to seventy percent (70%) of
the appraised value of the property pursuant to an appraisal prepared by an
independent MAI/SREA appraiser (approved by the lender in its sole discretion).
(2) Such subordinated debt must be used solely for capital improvements and
operating expenses associated with the property. The maturity date of the
secondary debt must extend beyond the maturity of the subject loan.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of [SELLER]
I, ______________________, a ______________________ of
______________________ (the "Seller"), hereby certify as follows:
The Seller is a corporation duly organized and validly existing under the
laws of the State of __________.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Seller, which Certificate of Incorporation
and By-Laws are on the date hereof, and have been at all times in full force and
effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified officer
or authorized signatory of the Seller and his or her genuine signature is set
forth opposite his or her name:
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________ __, 1998.
By: -----------------------
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected or
appointed, as the case may be, qualified and acting __________ of the Seller and
that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________ __, 1998.
By: -----------------------
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of [SELLER]
In connection with the execution and delivery by ______________________
(the "Seller") of, and the consummation of the transaction contemplated by, that
certain Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this _____ day of __________, 1998.
[SELLER]
By: -----------------------
Name:
Title:
<PAGE>
EXHIBIT D-3A
FORM OF CORPORATE OPINION OF SELLER
March 1, 1998
Addressees Listed on Schedule A
Re: Deutsche Mortgage & Asset Receiving Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998 C-1
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the "Mortgage Loan
Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
(the "Depositor") and ______________________________________, a ______________
corporation (the "Seller"), relating to the sale by the Seller and the purchase
by the Depositor of the Mortgage Loans. We have acted as special counsel to the
Seller in connection with the aforementioned transaction. Capitalized terms used
herein but not defined herein have the respective meanings given them in the
Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Mortgage Loan Purchase Agreement, and such certificates,
corporate and public records, agreements and instruments and other documents,
including, among other things, the documents delivered on the Closing Date, as
we have deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to any facts
material to such opinions that were not known to us, we have relied upon
statements and representations of officers and other representatives of the
Seller.
We have also assumed (other than with respect to the Seller) that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments, and
that such documents, agreements and instruments are valid, binding and
enforceable obligations of such parties. As used herein, "to our knowledge"
means the conscious awareness, without independent investigation, of facts or
other information by any lawyer in our firm actively involved in the
transactions contemplated by the Mortgage Loan Purchase Agreement.
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and [___________________], where expressly
referred to herein, the federal laws of the United States of America (in each
case without regard to conflicts of laws principles).
Based upon and subject to the foregoing, we are of the opinion that:
1. The Seller is a corporation validly existing under the laws of the
State of ________________, with full corporate power and authority to
execute, deliver and perform its obligations under the Mortgage Loan
Purchase Agreement and all the transactions contemplated thereby,
including, but not limited to, the power and authority to sell, assign and
transfer the Mortgage Loans in accordance with the Mortgage Loan Purchase
Agreement, the Seller has taken all necessary action to authorize the
execution, delivery and performance of the Mortgage Loan Purchase Agreement
by it, and the Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by it.
2. The Mortgage Loan Purchase Agreement is the legal, valid and
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of banks, and by general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law),
and except to the extent rights to indemnity and contribution may be
limited by applicable law.
3. The execution and delivery of the Mortgage Loan Purchase Agreement
by the Seller and the performance of its obligations under the Mortgage
Loan Purchase Agreement will not conflict with any provision of any law or
regulation to which the Seller is subject, or conflict with, result in a
breach of or constitute a default under any of the terms, conditions or
provisions of the Seller's organizational documents or by-laws or, to our
knowledge, any material agreement or instrument to which the Seller is a
party or by which it is bound, or, to our knowledge, any order or decree
applicable to the Seller, or result in the creation or imposition of any
lien on any of the Seller's assets or property, in each case which would
materially and adversely affect the ability of the Seller to perform its
obligations under the Mortgage Loan Purchase Agreement.
4. To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Seller in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of the Mortgage
Loans or the ability of the Seller to perform its obligations under the
Mortgage Loan Purchase Agreement.
5. To our knowledge, the Seller is not in default with respect to any
order or decree of any court or any order, regulation or decree of any
federal, state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect its ability to
perform its obligations under the Mortgage Loan Purchase Agreement.
6. To our knowledge, no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution,
delivery and performance by the Seller of or compliance by the Seller with
the Mortgage Loan Purchase Agreement or the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, other
than those which have been obtained by the Seller.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
Schedule A
Deutsche Mortgage & Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
<PAGE>
EXHIBIT D-3B
FORM OF 10b-5 LETTER
March 1, 1998
Deutsche Mortgage and Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
Ladies and Gentlemen:
This letter being delivered to you pursuant to Section 8(e) of the Mortgage
Loan Purchase Agreement, dated March 1, 1998 (the "Mortgage Loan Purchase
Agreement"), between Deutsche Mortgage and Asset Receiving Corporation (the
"Depositor"), and __________________________ (the "Seller"), relating to the
sale by the Seller and the purchase by the Depositor of certain commercial and
multifamily mortgage loans (the "Mortgage Loans"). The Depositor will assign and
transfer the Mortgage Loans to a trust fund created pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), among the Depositor, Banc One Mortgage Capital Markets, LLC, as
servicer (the "Servicer") and as special servicer (the "Special Servicer"), and
LaSalle National Bank, as trustee (the "Trustee"). The Depositor's Commercial
Mortgage Pass-Through Certificates, Series, 1998-C1 (the "Certificates") will be
issued in exchange for the Mortgage Loans pursuant to the terms of the Pooling
and Servicing Agreement. The Class X, Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates (collectively, the "Offered Certificates") are
being offered by the Prospectus dated March 16, 1998 (the "Base Prospectus"), as
supplemented by the Prospectus Supplement dated March [__], 1998 (the
"Prospectus Supplement" and collectively with the Base Prospectus, the
"Prospectus") and the Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class Q-1, Class Q-2, Class R and Class LR Certificates (the "Private
Certificates") are being offered by the Private Placement Memorandum dated March
[_], 1998 (the "Memorandum"). We have acted as special counsel to the Seller in
connection with the aforementioned transaction. [In addition, we have acted as
counsel to the Seller in connection with the origination of the Mortgage Loans.]
Capitalized terms used herein but not defined herein have the respective
meanings given them in the Mortgage Loan Purchase Agreement.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Prospectus or the
Memorandum, and we do not pass upon or assume any responsibility therefor.
However, in the course of our review of the Prospectus and the Memorandum, we
have attended certain conferences and participated in conversations with
representatives of the Seller, the Depositor, representatives of the Depositor,
the Servicer, the Special Servicer and the Trustee. On the basis of the
information which we gained in the course of the representation referred to
above and our examination of the documents referred in this letter, considered
in light of our understanding of applicable law and the experience we have
gained through our practice, nothing has come to our attention in the course of
our review of the Prospectus and Memorandum which causes us to believe that, as
of their respective dates or as of the date hereof, the Prospectus or Memorandum
contained or contain any untrue statement of a material fact or omitted or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
insofar as statements relate to the Mortgage Loans, including, without
limitation, the related mortgaged properties, borrowers and managers; it being
understood that we express no view as to any information incorporated by
reference in the Prospectus or Memorandum or as to the adequacy or accuracy of
the financial, numerical, statistical or quantitative information included in
the Prospectus or Memorandum.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT H-5
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 1, 1998, between Red Mountain Funding, L.L.C., as seller
(the "Seller"), and Deutsche Mortgage & Asset Receiving Corporation, as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch
IBCA, Inc. and Moody's Investors Service, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of March 1, 1998
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor, Banc
One Mortgage Capital Markets, LLC, as servicer (in such capacity, the
"Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle National Bank, as trustee (in such capacity, the "Trustee"), and ABN
AMRO Bank N.V., as fiscal agent. Capitalized terms not otherwise defined herein
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to Deutsche
Morgan Grenfell Inc., Morgan Stanley & Co. Incorporated and Llama Company, L.P.
(together, the "Underwriters") pursuant to an underwriting agreement dated March
24, 1998 (the "Underwriting Agreement"). The Purchaser intends to sell the
remaining Certificates (the "Non-Registered Certificates") pursuant to a
certificate purchase agreement dated March 24, 1998 (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
----------------------
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 30, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on March 1, 1998 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$221,744,773.00, subject to a variance of plus or minus 5%. The purchase price
for the Mortgage Loans shall be determined and paid to the Seller in accordance
with the terms of an allocation agreement dated March 24, 1998 (the "Allocation
Agreement"), to which the Seller and Purchaser, among others, are parties.
SECTION 2. Conveyance of Mortgage Loans.
-----------------------------
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdbacks in accordance with the Allocation Agreement) and the
issuance of the Certificates, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse, all the right,
title and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, including all interest and principal
received or receivable by the Seller on or with respect to the Mortgage Loans
after the Cut-off Date, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans; provided, however, that in the case of any Mortgage Loan with an
Anticipated Repayment Date prior to maturity (each an "ARD Loan") accruing
Excess Interest at an annual rate of greater than 2%, such ARD Loan shall be
deemed to have been modified to provide that, as of the Cut-off Date, such ARD
Loan shall accrue Excess Interest at an annual rate of no more than 2%;
provided, further, that with respect to such limitation of Excess Interest, the
related borrowers shall be third-party beneficiaries of such modification of
such ARD Loan. The Purchaser shall be entitled to (and, to the extent received
by or on behalf of the Seller, the Seller shall deliver or cause to be delivered
to or at the direction of the Purchaser) all scheduled payments of principal,
and interest due thereon, due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date; provided, however, that all scheduled payments of principal, and
interest accrued but not paid or due thereon, due on or before the Cut-off Date
and collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Note referred to in clause (i) of Exhibit B has been delivered by the
Seller with respect to each such Mortgage File. In the event Seller fails to so
deliver each such Mortgage File to the Trustee, the Purchaser and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law. If the Seller 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 clauses (ii),
(iv), (viii), (xi)(A) and (xii) of Exhibit B, 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 this Section 2(b) 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 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 Trustee, 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 or at the direction of the Purchaser (or any
subsequent owner of the affected Mortgage Loan, including without limitation the
Trustee) within 180 days of the Closing Date (or within such longer period after
the Closing Date as the Purchaser (or such subsequent owner) may consent to,
which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
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
clause (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Seller has delivered to the
Trustee a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B covering all the
Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdbacks
in accordance with the Allocation Agreement) has been received by the Seller and
the issuance of the Certificates, the Trustee shall be authorized to release to
the Purchaser or its designee all of the Mortgage Files in the Trustee's
possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B but that are reasonably required to
service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller shall deliver a copy of the related
Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
(f) It is further acknowledged and agreed by the Seller that the Purchaser
intends to convey all right, title and interest of the Purchaser in and to the
Mortgage Loans and all rights and remedies under this Agreement to the Trustee,
including, without limitation, all rights and remedies as may be available under
applicable law to the Purchaser in the event of a breach of a representation or
warranty pursuant to Section 4(a) hereof or in the event of a Defect; provided,
that the Trustee shall be a third-party beneficiary of this Agreement and shall
be entitled to enforce any obligations of the Mortgage Loan Seller hereunder in
connection with a breach of any such representation or warranty or a Defect as
if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
------------------------------------------------------------
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
-------------------------------------------------------
(a) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), each of
the representations and warranties set forth in Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited liability company, duly organized, and validly
existing under the laws of the State of Delaware, and is in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and the
performance of, and compliance with, the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable
to it or any of its assets, in each case which materially and adversely
affect the ability of the Seller to carry out the transactions contemplated
by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by
the Purchaser, constitutes a valid, legal and binding obligation of the
Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights generally, (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance of, and compliance with, the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Seller's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has received
service of process or, to the best of the Seller's knowledge, threatened
against the Seller the outcome of which, in the Seller's good faith and
reasonable judgment, is likely to materially and adversely affect the ability
of the Seller to perform its obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment banker, agent or
other person, other than the Purchaser, the Underwriters, the Initial
Purchasers, and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans
or the consummation of any of the other transactions contemplated hereby.
(viii) Except with respect to its managers (PRN Mortgage Capital, L.L.C.,
ContiTrade Services, L.L.C. and SouthTrust Capital Funding Corporation),
neither the Seller nor anyone acting on its behalf has (A) offered, pledged,
sold, disposed of or otherwise transferred any Certificate, any interest in
any Certificate or any other similar security to any person in any manner,
(B) solicited any offer to buy or to accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or any other similar security with any person in any manner, (D) made any
general solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of any of
the acts described in clauses (A) through (E) above) would constitute or
result in a violation of the Securities Act or any state securities law
relating to or in connection with the issuance of the Certificates or require
registration or qualification pursuant to the Securities Act or any state
securities law of any Certificate not otherwise intended to be a Registered
Certificate. In addition, the Seller will not act, nor has it authorized or
will it authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any of the Certificates or interests therein. For
purposes of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans or any
substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information set forth
on pages A-1 through A-12, inclusive, of Annex A to the Prospectus Supplement
(as defined in Section 9) (the "Loan Detail") and, to the extent consistent
therewith, the information set forth on the diskette attached to the
Prospectus Supplement and the accompanying prospectus (the "Diskette"), is
true and correct in all material respects. Insofar as it relates to the
Mortgage Loans and/or the Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set forth
in the Prospectus Supplement and the Memorandum (as defined in Section 9)
under the headings "Summary of Prospectus Supplement--The Mortgage Loans",
"Risk Factors--The Mortgage Loans" and "Description of the Mortgage Pool",
set forth on Annex A to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on the
Diskette, does not contain any untrue statement of a material fact or (in the
case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or filing
with, or notice to, any governmental authority or court is required, under
federal or state law (including, with respect to any bulk sale laws), for the
execution, delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction contemplated
hereby, other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in connection
with the Seller's sale of the Mortgage Loans to the Purchaser, (2) such
consents, approvals, authorizations, qualifications, registrations, filings
or notices as have been obtained or made and (3) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
----------------------------------------------------------
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser, and the
performance of, and compliance with, the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by
the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and delivery of
this Agreement and its performance of, and compliance with, the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's knowledge,
threatened against the Purchaser which would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of
the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker, agent
or other person, other than the Seller, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans
or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by the Purchaser with this Agreement, or the consummation by the
Purchaser of any transaction contemplated hereby, other than (1) such
consents, approvals, authorizations, qualifications, registrations, filings
or notices as have been obtained or made and (2) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
-----------
(a) Upon discovery by any of the parties hereto of any Defect (as defined
in the Pooling and Servicing Agreement) in respect of the Mortgage File for any
Mortgage Loan or a breach of any representation or warranty made pursuant to
Section 4(a) and set forth in Exhibit C, which Defect or breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Servicer (or the Special Servicer in the case of a Specially Serviced Mortgage
Loan) or the Trustee. Within 90 days of receipt of notice by the Seller, from
the Servicer, the Special Servicer or the Trustee of such breach or Defect, the
Seller shall cure such Defect or breach, as the case may be, in all material
respects or repurchase the affected Mortgage Loan from the then owner(s) thereof
at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement), on a whole-loan, servicing released basis, by payment of such
Purchase Price by wire transfer of immediately available funds to the account
designated by such owner(s); provided, however, that in lieu of effecting any
such repurchase, the Seller will be permitted to deliver a Qualifying Substitute
Mortgage Loan and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to the terms and conditions of the Pooling and
Servicing Agreement. Conveyance of such Mortgage Loans shall be made free and
clear of all Liens and encumbrances created or suffered by the Purchaser or any
subsequent holder.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 86OG(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender
promptly or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to cure, to repurchase, or to substitute for, any Mortgage Loan in
accordance with Section 6(a) or 6(b) or disputes its obligation to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with either
such subsection, the Purchaser or its successors and assigns may take such
action as is appropriate to enforce such payment or performance, including,
without limitation, the institution and prosecution of appropriate proceedings.
To the extent the Purchaser prevails in such proceeding, the Seller shall
reimburse the Purchaser for all necessary and reasonable costs and expenses
incurred in connection with the enforcement of such obligation of the Seller to
cure, to repurchase, or to substitute for, any Mortgage Loan in accordance with
Section 6(a) or 6(b).
SECTION 7. Closing.
-------
The closing of the purchase and sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, Wickersham & Taft, 100 Maiden Lane,
New York, New York 10038 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the Aggregate
Cut-off Date Balance shall be within the range permitted by Section 1 of this
Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"), in
such forms as are agreed upon and acceptable to the Purchaser, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee, the
Purchaser or the Purchaser's designee, as the case may be, all documents and
funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3 shall
be satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and conditions
and perform all duties and obligations required to be complied with or
performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
-----------------
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of legal existence regarding the Seller from the
Secretary of State for the State of Delaware, dated not earlier than 30 days
prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or the Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Prospectus
Supplement--The Mortgage Loans", "Risk Factors--The Mortgage Loans" and/or
"Description of the Mortgage Pool" or contained on Annex A to the Prospectus
Supplement (exclusive of the Loan Detail), and such information does not
represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon reliance on the accuracy of the
representations and warranties of the Seller set forth in or made pursuant to
Section 4(b); provided, that the indemnification provided by this Section 9
shall not apply to the extent that such untrue statement of a material fact or
omission of a material fact necessary to make the statements made, in light of
the circumstances in which they were made, not misleading, was made as a result
of an error in the manipulation of, or calculations based upon, the Loan Detail.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated March 16,
1998, as supplemented by the Prospectus Supplement; "Prospectus Supplement shall
mean the prospectus supplement dated March 24, 1998 relating to the Registered
Certificates; "Memorandum" shall mean the private placement memorandum dated
March 24, 1998, relating to the Non-Registered Certificates; "Computational
Materials" shall have the meaning assigned thereto in the no-action letter dated
May 20, 1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to Kidder, Peabody Acceptance Corporation
1, Kidder, Peabody & Co. Incorporated, and Kidder Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Kidder Letters"); and "ABS Term Sheets" shall have the meaning
assigned thereto in the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Kidder Letters, the
"No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "Indemnified Party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "Indemnifying Party") under this Section 9, notify
the Indemnifying Party in writing of the commencement thereof; but the omission
to notify the Indemnifying Party will not relieve it from any liability that it
may have to any Indemnified Party otherwise than under this Section 9. In case
any such action is brought against any Indemnified Party and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or Indemnified Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Indemnified Parties. Upon receipt of notice from the
Indemnifying Party to such Indemnified Party of its election to assume the
defense of such action and approval by the Indemnified Party of counsel, which
approval will not be unreasonably withheld, the Indemnifying Party will not be
liable for any legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof, unless (i) the Indemnified Party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
Indemnifying Party, representing all the Indemnified Parties under Section 9(a)
and Section 1 of the Underwriting Agreement who are parties to such action),
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party has authorized the employment of counsel for the Indemnified
Party at the expense of the Indemnifying Party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii). Unless it shall assume the defense of
any proceeding, the Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there shall be a
final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party, but only to the extent provided in paragraph (a) of this
Section 9, from and against any loss or liability by reason of such settlement
or judgment. If the Indemnifying Party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed, or, if such
settlement provides for release of the Indemnified Party in connection with all
matters relating to the proceeding which has been asserted against the
Indemnified Party in such proceeding by the other parties to such settlement,
without the consent of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Indemnified
Party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
-----
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. Notices.
-------
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
certified mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to Deutsche Mortgage & Asset Receiving Corporation, One
International Place, Room 520, Boston, Massachusetts 02110, Attention: R.
Douglas Donaldson, facsimile no. (617) 951-7650, with a copy to Anna H. Glick,
Esq., Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038,
facsimile no. (212) 504-6666, or such other address or facsimile number as may
hereafter be furnished to the Seller in writing by the Purchaser; and if to the
Seller, addressed to Red Mountain Funding, L.L.C., 420 North 20th Street, 9th
Floor, Birmingham, Alabama 35203, Attention: Lawrence Katz, Fax: (205) 254-4705
with a copy to: ContiTrade Services, LLC, 277 Park Avenue, 38th Floor, New York,
NY 10172, Attention: Susan Valenti, Fax: (212) 953-0406, or to such other
address or facsimile number as the Seller may designate in writing to the
Purchaser.
SECTION 12. Third Party Beneficiaries.
-------------------------
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. Severability of Provisions.
--------------------------
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
-------------
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
------------------
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. Successors and Assigns.
----------------------
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
----------
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
RED MOUNTAIN FUNDING L.L.C.
By: -------------------------------------
Name:
Title:
By: -------------------------------------
Name:
Title:
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION
By: -------------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, 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;
(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) whether such Mortgage Loan has an Anticipated Repayment Date;
(i) the Primary Servicing Fee Rate;
(j) whether the Mortgage Loan is an Actual/360 Loan or an Actual/365 Loan;
and
(k) whether such Mortgage Loan is a Healthcare 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. Certain of the above-referenced items are described on the
Mortgage Loan Schedule attached hereto. Certain of the above-referenced items
are described on Exhibit B-1 and Exhibit B-2 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
<PAGE>
<TABLE>
<CAPTION>
Cut-Off Date
Loan Loan Principal
Seller Number Property Name Balance
------ ------ ------------- -------
<S> <C> <C> <C>
RMF TSAR01 Trolley Station Shopping Center 12,258,387
RMF VDC001 Las Villas De Carlsbad 11,937,167
RMF HCC011 Easthaven Care Center 9,898,453
RMF WMAR01 Wal-Mart Supercenter 9,122,871
RMF SCA001 Stonecourt Apartments 8,868,778
RMF HCC005 Rivermont Convalescent and Nursing Center 8,780,886
RMF HCC002 Sycamore View Nursing Home 8,381,755
RMF HCC003 Woodland Village Care Center 8,142,276
RMF HCC013 Fentress County Nursing Home 7,734,537
RMF LCC001 Life Care Centers of Scottsdale 7,484,433
RMF SHA003 Squire Hill Apartments, Phase I - Charlottesville 7,226,803
RMF HIFH01 Holiday Inn I -65/Oxmoor Road 6,483,862
RMF SOA001 Stanford Oaks Apartments 6,174,569
RMF PCAR01 Park Centre Commons 5,984,328
RMF SHA002 Squire Hill Apartments - Harrisonburg 5,980,802
RMF CLP001 Clipper Home of Portsmouth 4,788,063
RMF SPUR01 South Pointe @ Town Lake Shopping Center 4,782,819
RMF AVA002 The Bethany Health Care Center 4,616,083
RMF HCC009 Heritgage Manor of Springfield 4,310,617
RMF AVA001 The Trevecca Health Care Center 4,189,185
RMF HCC015 Belen Health Care Center 4,002,922
RMF CAN003 Cresthaven Nursing Residence 3,880,941
RMF MSMF01 Madison Station Apartments, Inc. 3,792,994
RMF CLP004 Langdon Place of Nashua 3,759,223
RMF TCAR01 Taylorville Corners 3,682,444
RMF CLP005 Clipper Home of Rochester 3,600,940
RMF CAN006 Oakwood Manor 3,582,407
RMF PVE001 Parc View Estates 3,570,786
RMF MTV001 Mountview Retirement Residence 3,480,771
RMF BLR001 Chatsworth Health Care Center 3,421,604
RMF BLR002 Fairburn Health Care Center 3,421,604
RMF CLP002 Clipper Home of Wolfeboro 3,403,086
RMF HCC008 Standing Stone Health Care Center 3,275,118
RMF JFFR01 Just For Feet - Shafer Plaza 3,129,039
RMF YVMF01 Yorkshire Village Duplexes and Townhomes 3,034,541
RMF CLP006 Clipper Home of North Conway 2,888,666
RMF DMV001 Des Moines Vista Retirement Center 2,490,099
RMF HLA001 Hidden Lake Townhomes 2,341,929
RMF CAN002 Renaissance Care Center 1,996,869
RMF FRH001 Forest Hills Care Center 1,995,555
RMF BWA001 Bremner Woods Apartments Phase I 1,993,601
RMF EDFR02 Eckerd Drugs Store 1,862,615
RMF CLP003 Goodwin's of Exeter 1,840,041
RMF ITUR01 The Crossing at Indian Trail 1,192,389
RMF EDFR01 Eckerd Drugs Store 994,792
RMF FSUR01 Franklin Station 993,658
RMF HVFR01 Hollywood Video Store - Jacksonville 969,466
Total 221,744,773
</TABLE>
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(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, Mortgage
Pass-Through Certificates, Series 1998-C1, 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;
(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) 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
Trustee, if any, in each case with evidence of recording
thereon;
(v) an original assignment of any related 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;
(vi) 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;
(vii) 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;
(viii) 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, Note or any related
security document have been modified or the Mortgage Loan
has been assumed;
(ix) the original or a copy of the lender's title insurance
policy issued 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;
(x) the original or a copy of any guaranty of the obligations of
the mortgagor under the Mortgage Loan together with (A) if
applicable, the 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;
(xi) (A) file 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 mortgagor at the Mortgaged Property (in
each case with evidence of filing thereon) and which were in
the possession of the 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 Seller, a UCC financing statement executed
by the most recent assignee of record prior to the Trustee
or, if none, by the Originator, evidencing the transfer of
such security interest, either in blank or in favor of the
Trustee;
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by
the Mortgagor if the Mortgage, Note or other document or
instrument referred to above was signed on behalf of the
Mortgagor pursuant to such power of attorney;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy
thereof;
(xiv) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(xv) copies of the original Environmental Reports of the
Mortgaged Properties made in connection with origination of
the Mortgage Loans, if any;
(xvi) copies of the original Management Agreements, if any, for
the Mortgaged Property;
(xvii) 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;
(xviii) 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-1 financing statements, if any, submitted for filing
with respect to the Mortgage Loan Seller's security interest
in the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts and all funds contained therein (and UCC-3
financing statements assigning such security interest to the
Trustee on behalf of the Certificateholders); and
(xix) any other written agreements related to the Mortgage Loan.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Note, Mortgage or other loan document relating to such Mortgage Loan prohibits
or restricts the Seller's right to assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such Mortgage
Loan set forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not delinquent as of the
Cut-off Date (giving effect to any applicable grace periods), and has not been
during the twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving effect
to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid first
lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. If the Mortgaged Property is operated as a nursing
facility, a hospitality property or a multifamily property, the Mortgage,
together with any separate security agreement, similar agreement and UCC
financing statement, if any, establishes and creates a first priority, perfected
security interest, to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. To the Seller's
actual knowledge, the insurer that issued such Title Policy is qualified to do
business in the state in which the related Mortgaged Property is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such
Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Except with respect to provisions relating
to default interest, yield maintenance charges and prepayment premiums, such
Mortgage Loan complied with all applicable usury laws in effect at its date of
origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Note and Mortgage and all other documents
and instruments evidencing, guaranteeing, insuring or otherwise securing such
Mortgage Loan have been duly and properly executed by the parties thereto, and
each is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or affecting
the rights of creditors generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and excluding provisions relating to default interest, yield
maintenance charges or prepayment premiums.
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured against loss by hazards of extended coverage in an amount (subject to a
customary deductible) at least equal to the lesser of (1) the outstanding
principal balance of such Mortgage Loan, (2) 100% of the full replacement cost
of the improvements located on such Mortgaged Property and (3) the full
insurable actual cash value of such improvements, and the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the improvements on the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable actual cash value of such Mortgaged Property, (3) the maximum amount
of insurance available under the National Flood Insurance Act of 1968, as
amended, and (4) 100% of the replacement cost of the improvements located on
such Mortgaged Property. The Mortgage requires the Mortgagor to maintain such
insurance in respect of the Mortgaged Property in addition to comprehensive
general liability insurance in amounts generally required by the Seller, and at
least six months rental or business interruption insurance. All such insurance
required by the Mortgage to be maintained is in full force and effect and names
the Originator, the Seller or their respective successors or assigns as
mortgagee, loss payee or additional insured. Each such insurance policy requires
prior notice to the holder of the Mortgage of termination or cancellation, and
no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments, studies or reviews (or an update
of a previously conducted assessment, study or review), which was (were)
performed on behalf of the Seller, or as to which the related report was
delivered to the Seller in connection with its origination or acquisition of
such Mortgage Loan; and the Seller, having made no independent inquiry other
than reviewing the resulting report(s) or studies and/or employing an
environmental consultant to perform or review the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s) or studies. The Seller has not taken any action with respect
to such Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Note have not been impaired, waived, altered or modified in any material
respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
assessments for improvements or other similar outstanding charges affecting the
related Mortgaged Property which are or may become a lien of priority equal to
or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except with respect to
Mortgage Loans the Mortgagor of which is a lessee under a ground lease of a
Mortgaged Property or a combination of a ground lease and a fee simple interest,
the interest of the related Mortgagor in the related Mortgaged Property consists
of a fee simple estate in real property.
(xix) Whole Loan. Except as set forth on Schedule C-1 hereto, each Mortgage
Loan is a whole loan.
(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee. The Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted Encumbrances,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, subleases, licenses or other
agreements, to the extent permitted by law, pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same, to the extent permitted by law. The related assignment of
any Assignment of Leases, not included in a Mortgage, executed and delivered in
favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Assignment of
Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the Title Policy referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel, endorsement to such Title Policy and/or other
due diligence customarily performed by the Seller, the improvements located on
or forming part of such Mortgaged Property comply in all material respects with
applicable zoning laws and ordinances (except to the extent that they may
constitute legal nonconforming uses).
(xxiv) No Material Default. (A) To the Seller's knowledge, there exists no
material default, breach or event of acceleration under the related Mortgage or
Note, and (B) the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller herein.
(xxv) Inspection. In connection with the origination or acquisition of each
Mortgage Loan, the Seller inspected or caused to be inspected (either directly
by the Seller, by its correspondent or by a third party) the Mortgaged Property.
(xxvi) No Equity Participation or Contingent Interest. Except for any
related Excess Interest, the Mortgage Loan contains no equity participation by
the lender, and does not provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxvii) No Advances of Funds. No holder of the Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property (other than a tenant required to make its lease payments directly to
the holder of the related Mortgage Loan), directly or indirectly, for the
payment of any amount required by the Mortgage Loan.
(xxviii) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, (i) the
related Mortgagor or operator of the related Mortgaged Property was in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related Mortgaged
Property as it was then operated, and, (ii) if a related Mortgaged Property is
improved by a skilled nursing, congregate care or assisted living facility, the
most recent inspection or survey by governmental authorities having jurisdiction
in connection with such licenses, permits and authorizations did not cite such
Mortgaged Property for material violations (which shall include only "Level IV"
(or equivalent) violations in the case of skilled nursing facilities) that had
not been cured or as to which a plan of correction had not been submitted to and
accepted by such governmental authorities. To the extent such facility
participates in Medicaid or Medicare, the Seller has not received any notice
that such facility is not in compliance in all material respects with the
requirements of such program, such that such facility's continued participation
in such program be adversely affected.
(xxix) Servicing. The servicing and collection practices used by Seller and
its designees with respect to the Mortgage Loan have been in all material
respects legal, proper and prudent and have met industry standards for servicing
of commercial mortgage loans.
(xxx) Customary Remedies. The related Mortgage or Note, together with
applicable state law, contains customary and enforceable provisions (subject to
the exceptions set forth in paragraph (xii)) such as to render the rights and
remedies of the holders thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
(xxxi) The indebtedness evidenced by a Mortgage Loan is not convertible to
an ownership interest in the related Mortgaged Property or the related
Mortgagor.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property, or to repay the principal of the
Mortgage Loan.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.86OG-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvi) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest, either (1) the ground
lessor's fee interest is subordinated to the lien of the Mortgage or (2) the
following apply to such Ground Lease:
(a) To the actual knowledge of the Seller, such Ground Lease or
a memorandum thereof has been or will be duly recorded; such
Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor)
permits the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan, with the
exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the ground lessor's
related fee interest and Permitted Encumbrances;
(c) Except as set forth on Schedule C-1 hereto, the Mortgagor's
interest in such Ground Lease is assignable to the Purchaser
and its successors and assigns upon notice to, but (except
in the case where such consent cannot be unreasonably
withheld) without the consent of, the lessor thereunder (or,
if such consent is required, it has been obtained prior to
the Closing Date) and, in the event that it is so assigned,
is further assignable by the Purchaser and its successors
and assigns upon notice to, but without the need to obtain
the consent of, such lessor (except in the case where such
consent cannot be unreasonably withheld);
(d) Such Ground Lease is in full force and effect, and the
Seller has received no notice that an event of default has
occurred thereunder, and, to the Seller's actual knowledge,
there exists no condition that, but for the passage of time
or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice
of any default by the lessee to the mortgagee, provided that
the mortgagee has provided the lessor with notice of its
lien in accordance with the provisions of such Ground Lease,
and such Ground Lease, or an estoppel letter or other
agreement, further provides that no notice of termination
given under such Ground Lease is effective against the
mortgagee unless a copy has been delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground
Lease) to cure any default under such Ground Lease, which is
curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground
Lease;
(g) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less
than ten years beyond the Stated Maturity Date of the
related Mortgage Loan;
(h) Except as set forth on Schedule C-1 hereto, under the terms
of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds other than in
respect of a total or substantially total loss or taking,
will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan together
with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as commercially
unreasonable by the Seller; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee,
or in any manner, which would materially adversely affect
the security provided by the related Mortgage; and
(j) Except as set forth on Schedule C-1 hereto, such Ground
Lease requires the lessor to enter into a new lease with the
Seller or its successors or assigns in the event of a
termination of the Ground Lease by reason of a default by
the Mortgagor under the Ground Lease, including rejection of
the Ground Lease in a bankruptcy proceeding.
(xxxvii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxviii) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of a
release price, the related Note or Mortgage does not require the holder thereof
to release all or any portion of the Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xxxix) Junior Liens. Except as set forth on Schedule C-1 hereto, the
Mortgage Loan does not permit the related Mortgaged Property to be encumbered by
any lien junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof or the satisfaction of
debt service coverage or similar conditions specified therein.
(xl) Due-On-Sale; Due-On-Encumbrance. Except as set forth in Schedule C-1
hereto, each related Mortgage or Loan Agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of the Mortgage or Loan
Agreement, the related Mortgaged Property, or any interest therein, is directly
or indirectly transferred or sold (except for a one-time transfer), or
encumbered in connection with subordinate financing.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is not
a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Defeasance Provisions. Any Mortgage Loan which contains a provision
for any defeasance of mortgage collateral either (A) requires the consent of the
holder of the Mortgage Loan to any defeasance, or (B) permits defeasance (i) no
earlier than two years after the Closing Date (as defined in the Pooling and
Servicing Agreement, dated as of March 1, 1998), (ii) only with substitute
collateral constituting "government securities" within the meaning of Treas.
Reg. ss. 1.86OG-2(a)(8)(i), and (iii) only to facilitate the disposition of the
Mortgaged Property and not as a part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
(xliii) Release or Substitution of Collateral. Such Mortgage Loan does not
permit the release or substitution of collateral if such release or substitution
(a) would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (without regard to clauses (A)(i) or (A)(ii) thereof).
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
<PAGE>
MSMC
----
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND
WARRANTIES OF SELLER REGARDING
THE INDIVIDUAL MORTGAGE LOANS
The following Mortgage Loans are excepted from the representations and
warranties contained in the corresponding paragraph in Exhibit C:
(xxxv)Litigation.
-----------
A borrower related entity is involved in ongoing litigation regarding past
rent control related disputes at the subject property.
(xxxviii) Lien Releases.
-------------
Hancock Village Apartments (MSI)
Requires release of certain parts of the collateral under certain
conditions.
Elm Ridge Center (MS2)
Requires release of certain parts of the collateral under certain
conditions.
Collegiate Village Inn Apartments (MS7)
Requires release of certain parts of the collateral under certain
conditions.
(xxxix) Junior Liens.
------------
Six Mortgage Loans, including the Hampton Inn, Rockford (MS22); the Hampton
Inn, Madison (MS23); the Hampton Inn, Green Bay (MS27); the Hampton Inn,
Milwaukee (MS30); the Hampton In, LaCrosse (MS31); and Super 8 (MS40), Appleton,
permit future subordinate, secured financing, providing the following conditions
are met:
(1) The aggregate indebtedness shall not exceed the lesser of : (a) an
amount such that the DSCR at the time of the funding of the secondary financing
(or anytime thereafter) exceeds 145% (based on lender's estimate of net
underwritable cash flow); and (b) an amount equal to seventy percent (70%) of
the appraised value of the property pursuant to an appraisal prepared by an
independent MAI/SREA appraiser (approved by the lender in its sole discretion).
(2) Such subordinated debt must be used solely for capital improvements and
operating expenses associated with the property. The maturity date of the
secondary debt must extend beyond the maturity of the subject loan.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of [SELLER]
I, ----------------------, a ---------------------- of
- ---------------------- (the "Seller"), hereby certify as follows:
The Seller is a corporation duly organized and validly existing under the
laws of the State of ----------.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Seller, which Certificate of Incorporation
and By-Laws are on the date hereof, and have been at all times in full force and
effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified officer
or authorized signatory of the Seller and his or her genuine signature is set
forth opposite his or her name:
Name Office Signature
---- ------ ---------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
- ---------- --, 1998.
By: ------------------------
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected or
appointed, as the case may be, qualified and acting __________ of the Seller and
that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________ __, 1998.
By: ------------------------
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
---------------------------------
Certificate of [SELLER]
In connection with the execution and delivery by ----------------------
(the "Seller") of, and the consummation of the transaction contemplated by, that
certain Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this ----- day of ----------, 1998.
[SELLER]
By: ------------------------
Name:
Title:
<PAGE>
EXHIBIT D-3A
FORM OF CORPORATE OPINION OF SELLER
March 1, 1998
Addressees Listed on Schedule A
Re: Deutsche Mortgage & Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998 C-1
--------------------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the "Mortgage Loan
Purchase Agreement"), between Deutsche Mortgage & Asset Receiving Corporation
(the "Depositor") and --------------------------------------, a --------------
corporation (the "Seller"), relating to the sale by the Seller and the purchase
by the Depositor of the Mortgage Loans. We have acted as special counsel to the
Seller in connection with the aforementioned transaction. Capitalized terms used
herein but not defined herein have the respective meanings given them in the
Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Mortgage Loan Purchase Agreement, and such certificates,
corporate and public records, agreements and instruments and other documents,
including, among other things, the documents delivered on the Closing Date, as
we have deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to any facts
material to such opinions that were not known to us, we have relied upon
statements and representations of officers and other representatives of the
Seller.
We have also assumed (other than with respect to the Seller) that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments, and
that such documents, agreements and instruments are valid, binding and
enforceable obligations of such parties. As used herein, "to our knowledge"
means the conscious awareness, without independent investigation, of facts or
other information by any lawyer in our firm actively involved in the
transactions contemplated by the Mortgage Loan Purchase Agreement.
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and [-------------------], where expressly
referred to herein, the federal laws of the United States of America (in each
case without regard to conflicts of laws principles).
Based upon and subject to the foregoing, we are of the opinion that:
1. The Seller is a corporation validly existing under the laws of
the State of ----------------, with full corporate power and authority
to execute, deliver and perform its obligations under the Mortgage Loan
Purchase Agreement and all the transactions contemplated thereby,
including, but not limited to, the power and authority to sell, assign
and transfer the Mortgage Loans in accordance with the Mortgage Loan
Purchase Agreement, the Seller has taken all necessary action to
authorize the execution, delivery and performance of the Mortgage Loan
Purchase Agreement by it, and the Mortgage Loan Purchase Agreement has
been duly authorized, executed and delivered by it.
2. The Mortgage Loan Purchase Agreement is the legal, valid and
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and by general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and except to the extent rights to indemnity and
contribution may be limited by applicable law.
3. The execution and delivery of the Mortgage Loan Purchase
Agreement by the Seller and the performance of its obligations under
the Mortgage Loan Purchase Agreement will not conflict with any
provision of any law or regulation to which the Seller is subject, or
conflict with, result in a breach of or constitute a default under any
of the terms, conditions or provisions of the Seller's organizational
documents or by-laws or, to our knowledge, any material agreement or
instrument to which the Seller is a party or by which it is bound, or,
to our knowledge, any order or decree applicable to the Seller, or
result in the creation or imposition of any lien on any of the Seller's
assets or property, in each case which would materially and adversely
affect the ability of the Seller to perform its obligations under the
Mortgage Loan Purchase Agreement.
4. To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Seller in
any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Seller to perform
its obligations under the Mortgage Loan Purchase Agreement.
5. To our knowledge, the Seller is not in default with respect to
any order or decree of any court or any order, regulation or decree of
any federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely affect its
ability to perform its obligations under the Mortgage Loan Purchase
Agreement.
6. To our knowledge, no consent, approval, authorization or order
of any court or governmental agency or body is required for the
execution, delivery and performance by the Seller of or compliance by
the Seller with the Mortgage Loan Purchase Agreement or the
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement, other than those which have been obtained by the
Seller.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
Schedule A
----------
Deutsche Mortgage & Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
<PAGE>
EXHIBIT D-3B
FORM OF 10b-5 LETTER
March 1, 1998
Deutsche Mortgage and Asset Receiving Corporation
One International Place
Room 520
Boston, Massachusetts 02110
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway, 37th Floor
New York, NY 10036
Llama Company, L.P.
One McIlroy Plaza, Suite 302
Fayetteville, Arkansas 72701
Ladies and Gentlemen:
This letter being delivered to you pursuant to Section 8(e) of the Mortgage
Loan Purchase Agreement, dated March 1, 1998 (the "Mortgage Loan Purchase
Agreement"), between Deutsche Mortgage and Asset Receiving Corporation (the
"Depositor"), and -------------------------- (the "Seller"), relating to the
sale by the Seller and the purchase by the Depositor of certain commercial and
multifamily mortgage loans (the "Mortgage Loans"). The Depositor will assign and
transfer the Mortgage Loans to a trust fund created pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), among the Depositor, Banc One Mortgage Capital Markets, LLC, as
servicer (the "Servicer") and as special servicer (the "Special Servicer"), and
LaSalle National Bank, as trustee (the "Trustee"). The Depositor's Commercial
Mortgage Pass-Through Certificates, Series, 1998-C1 (the "Certificates") will be
issued in exchange for the Mortgage Loans pursuant to the terms of the Pooling
and Servicing Agreement. The Class X, Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates (collectively, the "Offered Certificates") are
being offered by the Prospectus dated March 16, 1998 (the "Base Prospectus"), as
supplemented by the Prospectus Supplement dated March [--] 1998 (the
"Prospectus Supplement" and collectively with the Base Prospectus, the
"Prospectus") and the Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class Q-1, Class Q-2, Class R and Class LR Certificates (the "Private
Certificates") are being offered by the Private Placement Memorandum dated March
[-], 1998 (the "Memorandum"). We have acted as special counsel to the Seller in
connection with the aforementioned transaction. [In addition, we have acted as
counsel to the Seller in connection with the origination of the Mortgage Loans.]
Capitalized terms used herein but not defined herein have the respective
meanings given them in the Mortgage Loan Purchase Agreement.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Prospectus or the
Memorandum, and we do not pass upon or assume any responsibility therefor.
However, in the course of our review of the Prospectus and the Memorandum, we
have attended certain conferences and participated in conversations with
representatives of the Seller, the Depositor, representatives of the Depositor,
the Servicer, the Special Servicer and the Trustee. On the basis of the
information which we gained in the course of the representation referred to
above and our examination of the documents referred in this letter, considered
in light of our understanding of applicable law and the experience we have
gained through our practice, nothing has come to our attention in the course of
our review of the Prospectus and Memorandum which causes us to believe that, as
of their respective dates or as of the date hereof, the Prospectus or Memorandum
contained or contain any untrue statement of a material fact or omitted or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
insofar as statements relate to the Mortgage Loans, including, without
limitation, the related mortgaged properties, borrowers and managers; it being
understood that we express no view as to any information incorporated by
reference in the Prospectus or Memorandum or as to the adequacy or accuracy of
the financial, numerical, statistical or quantitative information included in
the Prospectus or Memorandum.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT I
FORM OF REGULATION S TRANSFER CERTIFICATE
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Deutsche Mortgage Asset & Receivables Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class [ ]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of March 1, 1998 (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
Deutsche Mortgage Asset & Receivables Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, 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;]*
[(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.
<PAGE>
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)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Deutsche Mortgage Asset & Receivables Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated as of
March 1, 1998 (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,
[(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 prearranged 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: _____________, ____
- ----------
* Select appropriate depository.
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
<PAGE>
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)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Deutsche Mortgage Asset & Receivables Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated as of
March 1, 1998 (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,]*
[(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 prearranged 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.
<PAGE>
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)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Deutsche Mortgage Asset & Receivables Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated as of
March 1, 1998 (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.
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, the Special Servicer, Deutsche Morgan Greenfell Inc., Morgan Stanley &
Co. Incorporated and Llama Company, L.P. the Underwriters of the offering of the
Certificates.
[Insert Name of Transferor]
By:________________________
Name:
Title:
Dated: ____ __, 19__
- --------
* Select appropriate depository.
<PAGE>
Comparative Financial Status Report
Exhibit M-1
<TABLE>
<CAPTION>
Original Underwriting Information
---------------------------------
Last Ending
Property Scheduled Paid Annual Financial
Prospectus Inspection Principal Thru Debt Info as % Total $
Number City State Date Balance Date Service of Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Prior Full Year Operating Information
-------------------------------------
As of Y-E-YYYY Normalized
Financial
Info % Total $
as of Occ Revenue NOI DSCR
Date
<TABLE>
<CAPTION>
Current Annual Operating Information "Actual" YTD Financial Information
------------------------------------ ----------------------------------
As of Y-E-YYYY Normalized Month Reported
Financial FS FS
Info as of % Total $ Start End % Total $
Date Occ Revenue NOI DSCR Date Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Net Change
Current & Basis
%
% Total
Occ Rev DSCR
Financial Information:
Current Full Year:
Current Full Yr. received with DSC less than 1:
Prior Full Year:
Prior Full Yr. received with DSC less than 1:
Received Required
Loans Balance Balance
# % $ % % $
<PAGE>
Delinquent Loan Status Report
Exhibit M-2
<TABLE>
<CAPTION>
Ending
Prospectus Borrower Property Sq Ft or Paid to Scheduled
ID Name Type City State Units Date Balance
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total O/S
P&I Total O/S
Advances to Expenses to
Date Date
<TABLE>
<CAPTION>
Other
Advances Current Current LTM
(Taxes & Total Monthly Interest Mat. NOI
Insurance) Exposure P&I Rate Date Date LTM NOI
<S> <C> <C> <C> <C> <C>
</TABLE>
LTM Cap Rate
DSCR Assigned
<PAGE>
Delinquent Loan Status Report
Exhibit M-2
<TABLE>
<CAPTION>
Value Using Valuation/ Appraisal, Loss Using
Prospectus Borrower Property NOI & Cap Appraisal BPO, or 92% Appraisal
ID Name Type City State Rate Date Internal Value or BPO
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Total Appraisal Expected
Estimated Reduction Transfer Resolution FCL Start FCL Sale Workout
Recovery % Realized Date Date Date Date Strategy Comments
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
Historical Loan Modification Report
Exhibit M-3
<TABLE>
<CAPTION>
Balance
when Balance at
Modification Modification sent to the
Prospectus City State or Effective Special Effective Old Rate New Rate # of Months
ID Ext Flag Date Servicer Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Old P&I New P&I Old
Maturity
<PAGE>
Historical Loan Modification Report
Exhibit M-3
<TABLE>
<CAPTION>
Estimated
New Months for Mod Realized Loss Interest Loss to
Prospectus ID City Maturity Change to Trust Trust Comments
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
Historical Loss Estimate Report
Exhibit M-4
<TABLE>
<CAPTION>
Latest
Appraisal
Prospectus Borrower Property % Rec or Effective
ID Name Type City State from Brokers Date of Sales
Sale Opinion Sale Price
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Net Amount Scheduled Total P&I Total Servicing
Received Balance Paid Expenses Fees
from (As of (Advances) (Outstanding) Expense
Sale Resolution)
<PAGE>
Historical Loss Estimate Report
Exhibit M-4
<TABLE>
<CAPTION>
Date Loss
Prospectus Property Actual Losses Passed Minor Adj to
ID Borrower Type City Net Proceeds Passed Through Trust
Name Through
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Date
Minor Adj Loss % of
Passed Total Loss Scheduled
Through with Balance
Adjustment
<PAGE>
Reo Status Report
Exhibit M-5
<TABLE>
<CAPTION>
Paid Ending
Prospectus Borrower Property Sq Ft or thru Scheduled
ID Name Type City State Units Date Balance
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total P&I Total
Advances to Expenses to
Date Date
<TABLE>
<CAPTION>
Other
Advances LTM
(Taxes & Current Maturity NOI LTM
Insurance) Total Exposure Monthly P&I Date Date LTM NOI DSCR
<S> <C> <C> <C> <C> <C>
</TABLE>
Valuation/
Cap Rate Appraisal
Assigned Date
<PAGE>
Reo Status Report
Exhibit M-5
<TABLE>
<CAPTION>
Total Special
Value Appraisal/ Loss Using Appraisal Servicing
Prospectus Borrower Property using BPO or 92% Estimated Reduction Transfer
ID Name Type City NOI & Cap Internal Appraisal Recovery % Realized Date
Rate Value or BPO
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
REO Pending
Acquisition Resolution
Date Date Comments
<PAGE>
Servicer Watch List
Exhibit M-6
<TABLE>
<CAPTION>
Ending
Prospectus Borrower Property Scheduled Paid thru
ID Name Type City State Balance Date
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
Maturity Comment/Reason
Date LTM DSCR on Watch List
<PAGE>
OPERTING STATEMENT ANALYSIS REPORT
Exhibit M-7
As of
<TABLE>
<CAPTION>
PROPERTY OVERVIEW:
<S> <C> <C> <C> <C> <C> <C>
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations Underwriting 1995 1996 1997 1998 YTD
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized # of months
Period Ended Underwriting 1995 1996 1997 1998 YTD 1997-Base 1997-1996
Statement Classification Basis Normalized Normalized Normalized Variance Variance
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
Effective Gross Income
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses
Operating Expense Ratio
Net Operating Income
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI after Capital Items
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data :
Income Comments :
Expense Comments :
Capital Items Comments :
</TABLE>
<PAGE>
OPERATING STATEMENT ANALYSIS WORKSHEET
Exhibit M-8
AS OF MM/DD/YY
<TABLE>
<CAPTION>
<S> <C> <C> <C>
PROPERTY OVERVIEW:
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations Borrower Adjustment Normalized
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized # of months
Period Ended Underwriting 1998 YTD
Statement Classification Basis Normalized
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
Effective Gross Income
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses
Operating Expense Ratio
Net Operating Income
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI after Capital Items
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data :
Income Comments :
Expense Comments :
Capital Items Comments :
</TABLE>
<PAGE>
CSSA Set-Up Data Record Layout
Exhibit M-9
Field
Field Name Number Type Format
- ---------- ------ ---- ------
Transaction Id 1 AN XXX97001
Group Id 2 AN XXX9701A
Loan Id 3 AN 00000000012345
Offering Document Loan Id 4 AN 123
Original Note Amount 5 Numeric 1000000.00
Original Term Of Loan 6 Numeric 240
Original Amortization Term 7 Numeric 360
Original Note Rate 8 Numeric 0.095
Original Payment Rate 9 Numeric 0.095
First Loan Payment Due Date 10 AN YYYYMMDD
Grace Days Allowed 11 Numeric 10
Interest Only (Y/N) 12 AN Y
Balloon (Y/N) 13 AN Y
Interest Rate Type 14 Numeric 1
Interest Accrual Method Code 15 Numeric 1
Interest in Arrears (Y/N) 16 AN Y
Payment Type Code 17 Numeric 1
Prepayment Lock-out End Date 18 AN YYYYMMDD
Yield Maintenance End Date 19 AN YYYYMMDD
Prepayment Premium End Date 20 AN YYYYMMDD
Prepayment Terms Description 21 AN Text
ARM Index Code 22 AN A
First Rate Adjustment Date 23 AN YYYYMMDD
First Payment Adjustment Date 24 AN YYYYMMDD
ARM Margin 25 Numeric 0.025
Lifetime Rate Cap 26 Numeric 0.15
Lifetime Rate Floor 27 Numeric 0.05
Periodic Rate Increase Limit 28 Numeric 0.02
Periodic Rate Decrease Limit 29 Numeric 0.02
Periodic Payment Adjustment Max-% 30 Numeric 0.03
Periodic Payment Adjustment Max-$ 31 Numeric 5000.00
Payment Frequency 32 Numeric 1
Rate Reset Frequency In Months 33 Numeric 1
Payment Reset Frequency In Months 34 Numeric 1
Rounding Code 35 Numeric 1
Rounding Increment 36 Numeric 0.00125
Index Look Back In Days 37 Numeric 45
Negative Amortization Allowed (Y/N) 38 AN Y
Max Negam Allowed (% Of Orig Balance) 39 Numeric 0.075
Maximum Negam Allowed ($) 40 Numeric 25000.00
Remaining Term At Securitization 41 Numeric 240
Remaining Amortized Term At Securitization 42 Numeric 360
Maturity Date At Securitization 43 AN YYYYMMDD
Scheduled Principal Balance At Securitization 44 Numeric 1000000.00
Note Rate At Securitization 45 Numeric 0.095
Servicer And Trustee Fee Rate 46 Numeric 0.00025
Fee Rate / Strip Rate 1 47 Numeric 0.00001
Fee Rate / Strip Rate 2 48 Numeric 0.00001
Fee Rate / Strip Rate 3 49 Numeric 0.00001
Fee Rate / Strip Rate 4 50 Numeric 0.00001
Fee Rate / Strip Rate 5 51 Numeric 0.00001
Net Rate At Securitization 52 Numeric 0.00001
Periodic P&I Payment At Securitization 53 Numeric 3000.00
# Of Properties 54 Numeric 13
Property Name 55 AN Text
Property Address 56 AN Text
Property City 57 AN Text
Property State 58 AN Text
Property Zip Code 59 AN Text
Property County 60 AN Text
Property Type Code 61 AN MF
Net Square Feet At Securitization 62 Numeric 25000
# Of Units/Beds/Rooms At Securitization 63 Numeric 75
Year Built 64 AN 1990
NOI At Securitization 65 Numeric 100000.00
DSCR At Securitization 66 Numeric 2.11
Appraisal Value At Securitization 67 Numeric 1000000.00
Appraisal Date At Securitization 68 AN YYYYMMDD
Physical Occupancy At Securitization 69 Numeric 0.88
Revenue At Securitization 70 Numeric 100000.00
Operating Expenses At Securitization 71 Numeric 100000.00
Securitization Financials As Of Date 72 AN YYYYMMDD
Recourse (Y/N) 73 AN Y
Ground Lease (Y/N) 74 AN Y
Cross-Collateralized Loan Grouping 75 Numeric 9(3)
Collection Of Escrows (Y/N) 76 AN Y
Collection Of Other Reserves (Y/N) 77 AN Y
Lien Position At Securitization 78 Numeric 1
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Group Id Unique Indentification Number Assigned To Each Loan Group Within An Issue
Loan Id Unique Indentification Number Assigned To Each Collateral Item In A Pool
Offering Document Loan Id Unique Indentification Number Assigned To Each Collateral Item In The Prospectus
Original Note Amount The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan Original Number Of Months Until Maturity Of Loan
Original Amortization Term Original Number Of Months Loan Amortized Over
Original Note Rate The Note Rate At Inception Of The Note
Original Payment Rate Original Rate Payment Calculated On
First Loan Payment Due Date First Payment Date On The Mortgage Loan
Grace Days Allowed Number Of Days From Due Date Borrower Is Permitted To Remit Payment
Interest Only (Y/N) Y=Yes, N=No
Balloon (Y/N) Y=Yes, N=No
Interest Rate Type 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual, 5=Actual/366, 6=Simple,
7=78'S
Interest in Arrears (Y/N) Y=Yes, N=No
Payment Type Code See Payment Type Code Legend
Prepayment Lock-out End Date Date After Which Loan Can Be Prepaid
Yield Maintenance End Date Date After Which Loan Can Be Prepaid Without Yield Maintenance
Prepayment Premium End Date Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description Description Of Prepayment Terms (Not To Exceed 50 Characters)
ARM Index Code See Arm Index Code Legend
First Rate Adjustment Date Date Note Rate Originally Changed
First Payment Adjustment Date Date Payment Originally Changed
ARM Margin Rate Added To Index Used In The Determination Of The Gross Interest Rate
Lifetime Rate Cap Maximum Rate That The Borrower Must Pay On An Arm Loan Per The Loan Agreement
Lifetime Rate Floor Minimum Rate That The Borrower Must Pay On An Arm Loan Per The Loan Agreement
Periodic Rate Increase Limit Maximum Periodic Increase To The Note Rate Allowed Per The Loan Agreement
Periodic Rate Decrease Limit Minimum Periodic Increase To The Note Rate Allowed Per The Loan Agreement
Periodic Payment Adjustment Max-% Maximum Periodic Percentage Increase To The Borrowers P&I Payment Allowed Per
The Loan Agreement
Periodic Payment Adjustment Max-$ Maximum Periodic Dollar Increase To The Borrowers P&I Payment Allowed Per
The Loan Agreement
Payment Frequency 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rate Reset Frequency In Months 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Payment Reset Frequency In Months 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rounding Code Rounding Method For Sum Of Index Plus Margin (See Rounding Code Legend)
Rounding Increment Used In Conjunction With Rounding Code
Index Look Back In Days Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed (Y/N) Y=Yes, N=No
Max Negam Allowed (% Of Orig Balance) Maximum Lifetime Percentage Increase To The Original Balance Allowed
Per The Loan Agreement
Maximum Negam Allowed ($) Maximum Lifetime Dollar Increase To The Original Balance Allowed
Per The Loan Agreement
Remaining Term At Securitization Remaining Number Of Months Until Maturity Of Loan At Cutoff
Remaining Amortized Term At Securitization Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Securitization The Scheduled Maturity Date Of The Mortgage Loan At Securitization
Scheduled Principal Balance At Securitization The Scheduled Principal Balance Of The Mortgage Loan At Securitization
Note Rate At Securitization Cutoff Annualized Gross Interest Rate Applicable To The Calculation Of
Scheduled Interest
Servicer And Trustee Fee Rate Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 2 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 3 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 4 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 5 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Net Rate At Securitization Cutoff Annualized Interest Rate Applicable To The Calculation Of
Remittance Interest
Periodic P&I Payment At Securitization The Periodic Scheduled Principal & Interest Payment
# Of Properties The Number Of Properties Underlying The Mortgage Loan
Property Name If Number Of Properties Is Greater Than 1 Then "Various"
Property Address If Number Of Properties Is Greater Than 1 Then "Various"
Property City If Number Of Properties Is Greater Than 1 Then "Various"
Property State If Number Of Properties Is Greater Than 1 Then "Various"
Property Zip Code If Number Of Properties Is Greater Than 1 Then "Various"
Property County If Number Of Properties Is Greater Than 1 Then "Various"
Property Type Code If Number Of Properties Is Greater Than 1 Then "Various" (See Property Type
Code Legend)
Net Square Feet At Securitization If Number Of Properties Is Greater Than 1 Then "Various"
# Of Units/Beds/Rooms At Securitization If Number Of Properties Is Greater Than 1 Then "Various"
Year Built If Number Of Properties Is Greater Than 1 Then "Various"
NOI At Securitization Net Operating Income At Securitization
DSCR At Securitization DSCR At Securitization
Appraisal Value At Securitization Appraisal Value At Securitization
Appraisal Date At Securitization Appraisal Date At Securitization
Physical Occupancy At Securitization Physical Occupancy At Securitization
Revenue At Securitization Revenue At Securitization
Operating Expenses At Securitization Expenses At Securitization
Securitization Financials As Of Date Securitization Financials As Of Date
Recourse (Y/N) Y=Yes, N=No
Ground Lease (Y/N) Y=Yes, N=No
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed
Collection Of Escrows (Y/N) Y=Yes, N=No
Collection Of Other Reserves (Y/N) Y=Yes, N=No
Lien Position At Securitization 1=First, 2=Second...
</TABLE>
<PAGE>
CSSA Set-Up Data Record Layout
Exhibit M-10
<TABLE>
<CAPTION>
Field Name Field Number Type Format
<S> <C> <C> <C>
Transaction Id (pool ID) 1 AN XXX97001
Group Id (subgroup within a pool) 2 AN XXX9701A
Loan Id (loan number) 3 AN 00000000012345
Prospectus Id 4 AN 123
Distribution Date 5 AN YYYYMMDD
Current Beginning Scheduled Balance 6 Numeric 100000.00
Current Ending Scheduled Balance 7 Numeric 100000.00
Paid To Date 8 AN YYYYMMDD
Current Index Rate 9 Numeric 0.09
Current Note Rate 10 Numeric 0.09
Maturity Date 11 AN YYYYMMDD
Servicer and Trustee Fee Rate 12 Numeric 0.00025
Fee Rate/Strip Rate 1 13 Numeric 0.00001
Fee Rate/Strip Rate 2 14 Numeric 0.00001
Fee Rate/Strip Rate 3 15 Numeric 0.00001
Fee Rate/Strip Rate 4 16 Numeric 0.00001
Fee Rate/Strip Rate 5 17 Numeric 0.00001
Net Pass-Through Rate 18 Numeric #VALUE!
Next Index Rate 19 Numeric 0.09
Next Note Rate 20 Numeric 0.09
Next Rate Adjustment Date 21 AN YYYYMMDD
Next Payment Adjustment Date 22 AN YYYYMMDD
Scheduled Interest Amount 23 Numeric 1000.00
Scheduled Principal Amount 24 Numeric 1000.00
Total Scheduled P&I Due 25 Numeric 1000.00
Neg am/Deferred Interest Amount 26 Numeric 1000.00
Unscheduled Principal Collections 27 Numeric 1000.00
Other Principal Adjustments 28 Numeric 1000.00
Liquidation/Prepayment Date 29 AN YYYYMMDD
Prepayment Penalty/Yield Maint Received 30 Numeric 1000.00
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00
Liquidation/Prepayment Code 32 Numeric 1
Most Recent ASER $ 33 Numeric 1000.00
Most Recent ASER Date 34 AN YYYYMMDD
Cumulative ASER $ 35 Numeric 1000.00
Actual Balance 36 Numeric 100000.00
Total P&I Advance Outstanding 37 Numeric 1000.00
Total T&I Advance Outstanding 38 Numeric 1000.00
Other Expense Advance Outstanding 39 Numeric 1000.00
Status of Loan 40 AN 1
In Bankruptcy 41 AN Y
Foreclosure Date 42 AN YYYYMMDD
REO Date 43 AN YYYYMMDD
Bankruptcy Date 44 AN YYYYMMDD
Net Proceeds Received on Liquidation 45 Numeric 100000.00
Liquidation Expense 46 Numeric 100000.00
Realized Loss to Trust 47 Numeric 10000.00
Date of Last Modification 48 AN YYYYMMDD
Modification Code 49 Numeric 1
Modified Note Rate 50 Numeric 0.09
Modified Payment Rate 51 Numeric 0.09
Preceding Fiscal Year Revenue 52 Numeric 1000.00
Preceding Fiscal Year Expenses 53 Numeric 1000.00
Preceding Fiscal Year NOI 54 Numeric 1000.00
Preceding Fiscal Year Debt Service Amt. 55 Numeric 1000.00
Preceding Fiscal Year DSCR 56 Numeric 2.55
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85
Preceding FY Financial As of Date 58 AN YYYYMMDD
Second Preceding FY Revenue 59 Numeric 1000.00
Second Preceding FY Expenses 60 Numeric 1000.00
Second Preceding FY NOI 61 Numeric 1000.00
Second Preceding FY Debt Service 62 Numeric 1000.00
Second Preceding FY DSCR 63 Numeric 2.55
Sec Preceding FY Physical Occupancy 64 Numeric 0.85
Sec Preceding FY Financial As of Date 65 AN YYYYMMDD
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00
Most Recent Fiscal YTD NOI 68 Numeric 1000.00
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00
Most Recent Fiscal YTD DSCR 70 Numeric 2.55
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD
Most Recent Appraisal Date 74 AN YYYYMMDD
Most Recent Appraisal Value 75 Numeric 100000.00
Workout Strategy Code 76 Numeric 1
Most Recent Spec Service Transfer Date 77 AN YYYYMMDD
Most Recent Master Service Return Date 78 AN YYYYMMDD
Date Asset is Expected to Be Resolved 79 AN YYYYMMDD
Year Last Renovated 80 AN 1997
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
<S> <C>
Transaction Id (pool ID) Unique Issue Identification Mnemonic
Group Id (subgroup within a pool) Unique Identification Number Assigned To Each Loan Group Within An Issue
Loan Id (loan number) Unique Identification Number Assigned To Each Collateral Item In A Pool
Prospectus Id Unique Identification Number Assigned To Each Collateral Item In The Prospectus
Distribution Date Date Payments Made To Certificateholders
Current Beginning Scheduled Balance Outstanding Scheduled Principal Balance At The Beginning Of The Current Period
Current Ending Scheduled Balance Outstanding Scheduled Principal Balance At The End Of The Current Period
Paid To Date Due Date Of The Last Interest Payment Received
Current Index Rate Index Rate Used In The Determination Of The Current Period Gross Interest Rate
Current Note Rate Annualized Gross Rate Applicable To The Calculation Of The Current Period
Scheduled Interest
Maturity Date Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 2 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 3 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 4 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 5 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Net Pass-Through Rate Annualized Interest Rate Applicable To The Calculation Of The Current Period
Remittance Interest
Next Index Rate Index Rate Used In The Determination Of The Next Period Gross Interest Rate
Next Note Rate Annualized Gross Interest Rate Applicable To The Calculation Of The Next Period
Scheduled Interest
Next Rate Adjustment Date Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date Date Scheduled P&I Amount Is Next Scheduled To Change
Scheduled Interest Amount Scheduled Gross Interest Payment Due For The Current Period
Scheduled Principal Amount Scheduled Principal Payment Due For The Current Period
Total Scheduled P&I Due Scheduled Principal And Interest Payment Due For The Current Period
Neg am/Deferred Interest Amount Negative Amortization/Deferred Interest Amount Due For The Current Period
Unscheduled Principal Collections Unscheduled Payments Of Principal Received During The Related Collection Period
Other Principal Adjustments Unscheduled Principal Adjustments For The Related Collection Period
Liquidation/Prepayment Date Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yield Maint Received Additional Payment Required From Borrower Due To Prepayment Of Loan Prior
To Maturity
Prepayment Interest Excess (Shortfall) Scheduled Gross Interest Applicable To The Prepayment Amount
Liquidation/Prepayment Code See Liquidation/Prepayment Codes Legend
Most Recent ASER $ Excess Of The Principal Balance Over The Defined Appraisal Percentage
Most Recent ASER Date Date ASER Amount Applied To Loan
Cumulative ASER $ Cumulative ASER Amount
Actual Balance Outstanding Actual Principal Balance At the End of The Current Period
Total P&I Advance Outstanding Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding Outstanding Taxes & Insurance Advances At The End Of The Current Period
Other Expense Advance Outstanding Other Outstanding Advances At The End Of The Current Period
Status of Loan See Status Of Loan Legend
In Bankruptcy Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
Foreclosure Date Date Of Foreclosure
REO Date Date Of REO
Bankruptcy Date Date of Bankruptcy
Net Proceeds Received on Liquidation Net Proceeds Received On Liquidation To Be Remitted To The Trust Per
The Trust Documentation
Liquidation Expense Expenses Associated With The Liquidation To Be Netted From The Trust Per
The Trust Documentation
Realized Loss to Trust Liquidation Balance Less Net Liquidation Proceeds Received
Date of Last Modification Date Loan Was Modified
Modification Code See Modification Codes Legend
Modified Note Rate Note Rate Loan Modified To
Modified Payment Rate Payment Rate Loan Modified To
Preceding Fiscal Year Revenue Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI Preceding Fiscal Year Net Operating Income
Preceding Fiscal Year Debt Service Amt. Preceding Fiscal Year Debt Service Amount
Preceding Fiscal Year DSCR Preceding Fiscal Year Debt Service Coverage Ratio
Preceding Fiscal Year Physical Occupancy Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses Second Preceding Fiscal Year Expenses
Second Preceding FY NOI Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR Second Preceding Fiscal Year Debt Service Coverage Ratio
Sec Preceding FY Physical Occupancy Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Financial As of Date Second Preceding Fiscal Year Financial As Of Date
Most Recent Fiscal YTD Revenue Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI Most Recent Fiscal Year To Date Net Operating Income
Most Recent Fiscal YTD Debt Service Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR Most Recent Fiscal Year To Date Debt Service Coverage Ratio
Most Recent Fiscal YTD Phys. Occ. Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date The Date Of The Latest Available Appraisal For The Property
Most Recent Appraisal Value The Latest Available Appraisal Value For The Property
Workout Strategy Code See Workout Strategy Codes Legend
Most Recent Spec Service Transfer Date Date Transferred To The Special Servicer
Most Recent Master Service Return Date Date Returned To The Master Servicer
Date Asset is Expected to Be Resolved Date Asset Is Expected To Be Resolved
Year Last Renovated Year Property Last Renovated
</TABLE>
<PAGE>
Field
Field Name Number Type Format
- ---------- ------ ---- ------
Transaction Id 1 AN XXX97001
Loan Id 2 AN 00000000012345
Prospectus Loan ID 3 AN 123
Property ID 4 AN 1001-001
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3)
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN Text
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Securitization 16 Numeric 25000
# Of Units/Beds/Rooms At Securitization 17 Numeric 75
Property Status 18 AN 1
Allocated Percentage of Loan at
Securitization 19 Numeric 0.75
Current Allocated Percentage 20 Numeric 0.75
Current Allocated Loan Amount 21 Numeric 5900900
Ground Lease (Y/N) 22 AN N
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraised Value 25 Numeric 10000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD
Foreclosure Date 27 AN YYYYMMDD
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75
Occupancy Date 30 Numeric YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant (Tenant Name) 37 AN Text
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant (Tenant Name) 39 AN Text
Square Feet of 2nd Largest Tenant 40 Numeric 15000.000
3rd Largest Tenant (Tenant Name) 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12
Securitization Financials As Of Date 44 AN YYYYMMDD
Revenue At Securitization 45 Numeric 1000000.00
Operating Expenses At Securitization 46 Numeric 1000000.00
NOI At Securitization 47 Numeric 1000000.00
DSCR At Securitization 48 Numeric 1.5
Appraisal Value At Securitization 49 Numeric 1000000.00
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric
Date of Last Inspection 52 AN YYYYMMDD
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
Preceding Fiscal Year Expenses 55 Numeric 1000000.00
Preceding Fiscal Year NOI 56 Numeric 1000000.00
Preceding Fiscal Year Debt Service Amt 57 Numeric 1000000.00
Preceding Fiscal Year DSCR 58 Numeric 1.3
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1000000.00
Second Preceding FY Expenses 62 Numeric 1000000.00
Second Preceding FY NOI 63 Numeric 1000000.00
Second Preceding FY Debt Service 64 Numeric 1000000.00
Second Preceding FY DSCR 65 Numeric 1.3
Second Preceding FY Physical Occupancy 66 Numeric 0.90
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
- ---------- -----------
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Loan Id Unique Indentification Number Assigned To Each Collateral Item In A Pool
Prospectus Loan ID Unique Indentification Number Assigned To Each Collateral Item In
The Prospectus
Property ID Should contain Prospectus ID and property identifier, e.g., 1001-001,
1000-002
Distribution Date
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed
Property Name
Property Address
Property City
Property State
Property Zip Code
Property County
Property Type Code
Year Built
Year Last Renovated
Net Square Feet At Securitization RT, IN, WH, OF, MU, SS, OT - SF
# Of Units/Beds/Rooms At Securitization MF, MHP, LO, HC - Units
Property Status 1=FCL, 2-REO, 3=Defeased, 4=partial Releases, 5=Released, 6=Same as
at Securitization
Allocated Percentage of Loan at Securitization Issuer to allocate loan % attributable to property for multi-property loans
Current Allocated Percentage Calculation based on Current Allocated Loan Amount and Current SPB for
associated loan
Current Allocated Loan Amount Maintained by servicer
Ground Lease (Y/N) Either Y=Yes, S=Subordinate, N=No ground lease
Other Escrow / Reserve Balances
Most Recent Appraisal Date
Most Recent Appraised Value
Date Asset is Expected to Be Resolved Could be different dates for different properties if foreclosing
Foreclosure Date
REO Date
Occupancy % Map to Most Recent Fiscal YTD Physical Occupancy in CSSA, multiply times
Current Allocated %
Occupancy Date
Date Lease Rollover Review Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months
% Sq. Feet expiring 13-24 months
% Sq. Feet expiring 25-36 months
% Sq. Feet expiring 37-48 months
% Sq. Feet expiring 49-60 months
Largest Tenant (Tenant Name) For Office, WH, Retail, Industrial, *Only if disclosed in the offering
document
Square Feet of Largest Tenant
2nd Largest Tenant (Tenant Name) For Office, WH, Retail, Industrial, *Only if disclosed in the offering
document
Square Feet of 2nd Largest Tenant
3rd Largest Tenant (Tenant Name)
Square Feet of 3rd Largest Tenant
Fiscal Year End Month Needed to indicate month ending for borrower's Fiscal Year
Securitization Financials As Of Date
Revenue At Securitization
Operating Expenses At Securitization
NOI At Securitization
DSCR At Securitization Multiply times the Allocated % at Securitization
Appraisal Value At Securitization
Appraisal Date At Securitization
Physical Occupancy At Securitization Multiply times the Allocated % at Securitization
Date of Last Inspection
Preceding FY Financial As of Date
Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI
Preceding Fiscal Year Debt Service Amt
Preceding Fiscal Year DSCR Multiply times the Allocated % at Securitization
Preceding Fiscal Year Physical Occupancy Multiply times the Allocated % at Securitization
Sec Preceding FY Financial As of Date
Second Preceding FY Revenue
Second Preceding FY Expenses
Second Preceding FY NOI
Second Preceding FY Debt Service
Second Preceding FY DSCR
Second Preceding FY Physical Occupancy
</TABLE>
