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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) June 24, 1998
DLJ Commercial Mortgage Corp.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 333-32019 13-3956945
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(State or Other (Commission (IRS Employer
Jurisdiction File Number) Identification No.)
of Incorporation)
277 Park Avenue, New York, New York 10172
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 892-3000
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On June 24, 1998, a single series of certificates, entitled DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1998-CG1 (the "Certificates"), was issued pursuant to a pooling
and servicing agreement (the "Pooling and Servicing Agreement"), entered
into by and among DLJ Commercial Mortgage Corp. (the "Registrant"), as
depositor, GE Capital Loan Services, Inc., as servicer, Midland Loan
Services, Inc., as special servicer, and Norwest Bank Minnesota, National
Association, as trustee and REMIC administrator. The Pooling and
Servicing Agreement is attached hereto as Exhibit 4.1. Certain classes of
the Certificates, designated Class S, Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class A-3, Class A-4, Class B-1, Class B-2 and Class B-3
(collectively, the "Underwritten Certificates"), are being registered
under the Registrant's registration statement on Form S-3 (no. 333-32019)
and have been sold to Donaldson, Lufkin & Jenrette Securities Corporation
(the "Underwriter") pursuant to an underwriting agreement (the
"Underwriting Agreement") entered into by and between the Registrant and
the Underwriter. The Underwriting Agreement is attached hereto as Exhibit
1.1.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired:
Not applicable.
(b) Pro forma financial information:
Not applicable.
(c) Exhibits:
Exhibit No. Description
1.1 Underwriting Agreement, dated as of June 18, 1998, between DLJ
Commercial Mortgage Corp., as seller, and Donaldson, Lufkin &
Jenrette Securities Corporation, as underwriter.
4.1 Pooling and Servicing Agreement, dated as of June 1, 1998, among
DLJ Commercial Mortgage Corp., as depositor, GE Capital Loan
Services, Inc., as servicer, Midland Loan Services, Inc., as
special servicer, and Norwest Bank Minnesota, National
Association, as trustee and REMIC administrator.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Date: July 9, 1998
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/ N. Dante LaRocca
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Name: N. Dante LaRocca
Title: Senior Vice President
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EXHIBIT INDEX
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The following exhibits are filed herewith:
Exhibit No. Page No.
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1.1 Underwriting Agreement, dated as of June 18, 1998,
between DLJ Commercial Mortgage Corp., as seller,
and Donaldson, Lufkin & Jenrette Securities
Corporation, as underwriter.
4.1 Pooling and Servicing Agreement, dated as of
June 1, 1998, among DLJ Commercial Mortgage Corp.,
as depositor, GE Capital Loan Services, Inc., as
servicer, Midland Loan Services, Inc., as special
servicer, and Norwest Bank Minnesota, National
Association, as trustee and REMIC administrator.
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EXHIBIT 1.1
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-CG1
UNDERWRITING AGREEMENT
As of June 18, 1998
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, NY 10172
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated
herein, to sell to the underwriters named in Schedule I hereto (the
"Underwriters"; provided, however, that if you are the only underwriter
named in Schedule I, then the terms "Underwriter" and "Underwriters"
shall refer solely to you) those classes (each, a "Class") of its
Commercial Mortgage Pass-Through Certificates, Series 1998-CG1, specified
in Schedule II hereto (the "Offered Certificates"). The Offered
Certificates will be issued pursuant to a Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") to be dated as of June 1, 1998
(the "Cut-off Date"), among the Company, as depositor, GE Capital Loan
Services, Inc., as servicer (the "Servicer"), Midland Loan Services,
Inc., as special servicer (the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (in such capacity, the
"Trustee") and as REMIC administrator (in such capacity, the "REMIC
Administrator"). The Offered Certificates will evidence undivided
interests in a trust fund (the "Trust Fund") to be established by the
Company pursuant to the Pooling and Servicing Agreement. The Trust Fund
will consist primarily of a pool (the "Mortgage Pool") of conventional,
monthly pay, commercial and multifamily mortgage loans (the "Mortgage
Loans") transferred by the Company to the Trust Fund and listed in an
attachment to the Pooling and Servicing Agreement. Three real estate
mortgage investment conduit ("REMIC") elections are to be made with
respect to the Trust Fund with the resulting REMICs being referred to as
"REMIC I", "REMIC II" and "REMIC III", respectively. The Class B-4, Class
B-5, Class B-6, Class B-7, Class C, Class D-1, Class D-2, Class R-I,
Class R-II and Class R-III Certificates (collectively with the Offered
Certificates, the "Certificates") are also to be issued pursuant to the
Pooling and Servicing Agreement but do not form a part of this offering.
The Offered Certificates are described more fully in the Basic Prospectus
and the Prospectus Supplement (each of which terms is defined below)
which the Company is furnishing to you.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No.
333-32019) on Form S-3 for the registration under
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the Securities Act of 1933, as amended (the "Act"), of the Offered
Certificates, which registration statement has become effective and copies of
which have heretofore been delivered to you. Such registration statement meets
the requirements set forth in Rule 415(a)(1) under the Act and complies in all
other material respects with such Rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement, dated the date
specified in Schedule II hereto, to the prospectus, dated the date specified
in Schedule II hereto, relating to the Offered Certificates and the method of
distribution thereof and has previously advised you of all further information
(financial and other) with respect to the Offered Certificates set forth
therein. Such registration statement, including the exhibits thereto, as
amended at the date hereof is hereinafter called the "Registration Statement";
such prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424 under the Act, is hereinafter called the "Basic
Prospectus"; such supplement to the Basic Prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424 of the Act, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and
the Prospectus Supplement together are hereinafter called the "Prospectus".
Any preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 402(a) or Rule 424 is hereinafter called a "Preliminary
Prospectus Supplement". The Company will not, without your prior consent, file
any other amendment to the Registration Statement or make any change in the
Basic Prospectus or the Prospectus Supplement until after the end of the
period during which a prospectus is required to be delivered to purchasers of
the Offered Certificates under the Act. The Company, as depositor with respect
to the Trust Fund, will file with the Commission within fifteen days of the
issuance of the Offered Certificates a report on Form 8-K setting forth
specific information concerning the Offered Certificates (the "Form 8-K").
(b) As of the date hereof, when the Registration
Statement became effective, when the Prospectus Supplement is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date, any
other amendment to the Registration Statement becomes effective, when any
supplement to the Prospectus Supplement is filed with the Commission, and
at the Closing Date, (i) the Registration Statement, as amended as of any
such time, and the Prospectus, as amended or supplemented as of any such
time, complied or will comply in all material respects with the
applicable requirements of the Act and the rules thereunder, (ii) the
Registration Statement, as amended as of any such time, did not and will
not contain any untrue statement of a material fact and did not and will
not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) the
Prospectus, as amended or supplemented as of any such time, did not and
will not contain an untrue statement of a material fact and did not and
will not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) the information contained in or
omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by you, or
by any Underwriter through you, specifically for use in the preparation
thereof, or (B) the information contained in or omitted from any Current
Report (as defined in Section 5(b) hereof), or any amendment thereof or
supplement thereto, incorporated by reference in the Registration
Statement or the Prospectus (or any amendment thereof or supplement
thereto).
(c) The Company is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with full power and authority (corporate and
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other) to own its properties and conduct its business, as described in the
Prospectus, and to enter into and perform its obligations under this Agreement
and the Pooling and Servicing Agreement, and is conducting its business so as
to comply in all material respects with all applicable statutes, ordinances,
rules and regulations of the jurisdictions in which it is conducting business.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) At or prior to the Closing Date, the Company will
have entered into the Pooling and Servicing Agreement; this Agreement has been
duly authorized, executed and delivered by the Company, and the Pooling and
Servicing Agreement, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company, and this Agreement and the
Pooling and Servicing Agreement will constitute valid and binding agreements
of the Company, enforceable against the Company in accordance with their
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, moratorium, receivership, reorganization or similar
laws affecting the rights of creditors generally, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability of any
provisions of this Agreement which purport to provide indemnification from
securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus; the Offered Certificates have been duly and
validly authorized by the Company, and will, when duly and validly executed
and authenticated by the Trustee and delivered to and paid for by the
Underwriters in accordance with this Agreement and the Pooling and Servicing
Agreement, be entitled to the benefits of the Pooling and Servicing Agreement.
(g) As of the Closing Date, the representations and
warranties of the Company set forth in Section 2.04 of the Pooling and
Servicing Agreement will be true and correct.
(h) Neither the issuance and sale of the Offered
Certificates, nor the consummation of any other of the transactions
contemplated herein, nor the fulfillment of any of the terms of the Pooling
and Servicing Agreement or this Agreement, will result in the breach of any
term or provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a material breach, violation or
acceleration of or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it is bound, or any statute, order or regulation
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company or any of its subsidiaries. Neither the Company nor any of its
subsidiaries is a party to, bound by or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having
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jurisdiction over it, which materially and adversely affects the ability of
the Company to perform its obligations under this Agreement and the Pooling
and Servicing Agreement.
(i) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement or the Offered Certificates, (ii) seeking to prevent the issuance of
the Offered Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Pooling and Servicing Agreement, (iii)
which might materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, this Agreement,
the Pooling and Servicing Agreement or the Offered Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the Offered
Certificates described in the Prospectus.
(j) There has not been any material adverse change in
the business, operations, financial condition, properties or assets of the
Company since the date of its latest audited financial statements which would
have a material adverse effect on the ability of the Company to perform its
obligations under the Pooling and Servicing Agreement.
(k) There are no contracts, indentures or other documents of
a character required by the Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(l) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and
the Pooling and Servicing Agreement, except such as have been, or as of the
Closing Date will have been, obtained or such as may otherwise be required
under applicable state securities laws in connection with the purchase and
offer and sale of the Offered Certificates by the Underwriters and any
recordation of the respective assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not been completed.
(m) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company.
(n) Any taxes, fees and other governmental charges payable
by the Company in connection with the execution and delivery of this Agreement
and the Pooling and Servicing Agreement or the issuance and sale of the
Certificates (other than such federal, state and local taxes as may be payable
on the income or gain recognized therefrom) have been or will be paid at or
prior to the Closing Date.
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(o) Immediately prior to the assignment of the Mortgage
Loans to the Trustee, the Company will have good title to, and will be the
sole owner of, each Mortgage Loan, free and clear of any pledge, mortgage,
lien, security interest or other encumbrance.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal or
notional amount of each Class of the Offered Certificates set forth opposite
each such Underwriter's name in Schedule I hereto.
The purchase price for each Class of the Offered
Certificates as a percentage of the aggregate principal (or notional) amount
thereof as of the Closing Date (as defined below) is set forth in Schedule II
hereto. There will be added to the purchase price of the Offered Certificates
interest in respect of each Class of the Offered Certificates at the interest
rate applicable to such Class from the Cut-off Date to but not including the
Closing Date.
3. Delivery and Payment. The closing for the purchase and
sale of the Offered Certificates contemplated hereby (the "Closing"), shall be
made at the date, location and time of delivery set forth in Schedule II
hereto, or such later date as shall be mutually acceptable to the Underwriters
and the Company (such date and time of purchase and sale of the Offered
Certificates being herein called the "Closing Date"). Delivery of the Offered
Certificates will be made in book-entry form through the facilities of The
Depository Trust Company ("DTC"). Each class of Offered Certificates will be
represented by one or more definitive global Certificates to be deposited by
or on behalf of the Depositor with DTC. Delivery of the Offered Certificates
shall be made to the several Underwriters against payment by the several
Underwriters of the purchase price thereof to or upon the order of the Company
by wire transfer of immediately available funds or by such other method as may
be acceptable to the Company.
The Company agrees to have the Offered Certificates
available for inspection, checking and packaging by the Underwriters in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Offered Certificates for sale to the
public as set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will promptly advise the Underwriters (i)
when, during any period that a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any amendment to the Registration
Statement shall have become effective, (ii) of any request by the Commission
for any amendment to the Registration Statement or the Prospectus or for any
additional information affecting or in respect of the Offered Certificates,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement affecting the Offered Certificates
or the institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will not file any amendment to the Registration Statement
or supplement to the Prospectus unless the Company has furnished you
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a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object until after the period
in which a prospectus is required to be delivered to purchasers of the Offered
Certificates under the Act. Subject to the foregoing sentence, the Company
will cause the Prospectus Supplement to be transmitted to the Commission for
filing pursuant to Rule 424 under the Act by means reasonably calculated to
result in filing with the Commission pursuant to said Rule. The Company will
use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to
the Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Exchange Act
on the business day immediately following the later of (i) the day on which
such Computational Materials and Structural Term Sheets are delivered to
counsel for the Company by an Underwriter prior to 10:30 a.m. (New York City
time) and (ii) the date on which this Agreement is executed and delivered. The
Company will cause one Collateral Term Sheet (as defined in Section 9 below)
with respect to the Offered Certificates that is delivered by the Underwriters
to the Company in accordance with the provisions of Section 9 to be filed with
the Commission on a Current Report pursuant to Rule 13a-11 under the Exchange
Act on the business day immediately following the day on which such Collateral
Term Sheet is delivered to counsel for the Company by the Underwriters prior
to 10:30 a.m. (New York City time). In addition, if at any time prior to the
availability of the Prospectus Supplement, the Underwriters have delivered to
any prospective investor a subsequent Collateral Term Sheet that reflects, in
the reasonable judgment of the Underwriters and the Company, a material change
in the characteristics of the Mortgage Loans from those on which a Collateral
Term Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet
that is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to
10:30 a.m. (New York City time). In each case, the Company will promptly
advise the Underwriters when such Current Report has been so filed. Each such
Current Report shall be incorporated by reference in the Prospectus and the
Registration Statement. Notwithstanding the foregoing provisions of this
Section 5(b), the Company shall have no obligation to file any materials
provided by the Underwriters pursuant to Section 9 which, in the reasonable
determination of the Company, are not required to be filed pursuant to the
Kidder Letters or the PSA Letter (each as defined in Section 9 below), or
contain erroneous information or contain any untrue statement of a material
fact or, when read in conjunction with the Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being understood,
however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials or ABS
Term Sheets (as defined in Section 9 below) provided by the Underwriters to
the Company pursuant to Section 9 hereof. The Company shall give notice to the
Underwriters of its determination not to file any materials pursuant to the
preceding sentence and agrees to file such materials if the Underwriters
reasonably object to such determination within one business day after receipt
of such notice.
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(c) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Act or the
rules under the Act, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance and, if such amendment or supplement is required
to be contained in a post-effective amendment to the Registration Statement,
will use its best efforts to cause such amendment of the Registration
Statement to be made effective as soon as possible; provided, however, that
the Company will not be required to file any such amendment or supplement with
respect to any Computational Materials or ABS Term Sheets incorporated by
reference in the Prospectus other than any amendments or supplements of such
Computational Materials or ABS Term Sheets that are furnished to the Company
pursuant to Section 9 hereof which the Company determines to file in
accordance therewith.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer relating to the Offered
Certificates may be required by the Act, as many copies of the Basic
Prospectus, the Preliminary Prospectus Supplement, if any, and the Prospectus
Supplement and any amendments and supplements thereto as the Underwriters may
reasonably request.
(e) The Company agrees that, so long as the Offered
Certificates shall be outstanding, it will deliver or cause to be delivered to
the Underwriters the annual statements as to compliance and the annual
statements of a firm of independent public accountants, furnished to the
Trustee by the Master Servicer and the Special Servicer pursuant to Sections
3.13 and 3.14 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action that
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(g) The Company will pay all costs and expenses in
connection with the transactions contemplated hereby, including, but not
limited to, the fees and disbursements of its counsel; the costs and expenses
of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Offered Certificates; accounting fees and
disbursements; the costs and expenses in connection with the qualification or
exemption of the Offered Certificates under state securities or blue sky laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any Blue Sky
Survey and in connection with any determination of the eligibility of the
Offered Certificates for investment
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by institutional investors and the preparation of any Legal Investment Survey;
the expenses of printing any such Blue Sky Survey and Legal Investment Survey;
the costs and expenses in connection with the preparation, printing and filing
of the Registration Statement (including exhibits thereto), the Basic
Prospectus, the Preliminary Prospectus Supplement, if any, and the Prospectus
Supplement, the preparation and printing of this Agreement, the furnishing to
the Underwriters of such copies of each Preliminary Prospectus Supplement, if
any, and Prospectus Supplement as the Underwriters may reasonably request and
the fees of rating agencies. Except as provided in Section 7 hereof, the
Underwriters shall be responsible for paying all costs and expenses incurred
by them in connection with their purchase and sale of the Offered
Certificates, including the fees of counsel to any Underwriter.
6. Conditions to the Obligations to the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as
provided in this Agreement shall be subject to the accuracy in all material
respects of the representations and warranties on the part of the Company
contained herein as of the date hereof and the Closing Date, to the accuracy
in all material respects of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Company of its obligations hereunder and to the
following additional conditions with respect to the Offered Certificates:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened; and the Prospectus
Supplement shall have been filed with the Commission within the time period
prescribed by the Commission.
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of
the Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date;
and (ii) the Company has in all material respects complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect
to the Company a good standing certificate from the Secretary of State of
the State of Delaware, dated not earlier than 30 days prior to the
Closing Date.
(d) The Underwriters shall have received from the
Secretary or an assistant secretary of the Company, in his individual
capacity, a certificate, dated the Closing Date, to the effect that: (i)
each individual who, as an officer or representative of the Company,
signed this Agreement, the Pooling and Servicing Agreement or any other
document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein or in the Pooling
and Servicing Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates
are their genuine signatures; and (ii) no event (including, without
limitation, any act or omission on the part of the Company) has occurred
since the date of the good standing certificate referred to in paragraph
(c) above which has affected the good standing of the Company under the
laws of the State of Delaware. Such certificate shall be accompanied by
true and complete copies (certified as such by the Secretary or an
assistant secretary of the Company) of the certificate of
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incorporation and by-laws of the Company, as in effect on the Closing Date,
and of the resolutions of the Company and any required shareholder consent
relating to the transactions contemplated in this Agreement and the Pooling
and Servicing Agreement.
(e) The Underwriters shall have received from Sidley &
Austin, counsel for the Company, a favorable opinion, dated the Closing
Date and reasonably satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Registration Statement has become effective
under the 1933 Act.
(ii) To such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and not withdrawn, and no proceedings for that
purpose have been instituted or threatened and not terminated.
(iii) The Registration Statement, the Basic
Prospectus and the Prospectus Supplement, as of their respective
effective or issue dates (other than the financial statements,
schedules and other financial and statistical information
contained therein or omitted therefrom, as to which such counsel
need express no opinion), complied as to form in all material
respects with the applicable requirements of the Act and the
rules and regulations thereunder.
(iv) To such counsel's knowledge, there are no
material contracts, indentures or other documents relating to
the Offered Certificates of a character required to be described
or referred to in the Registration Statement or the Prospectus
Supplement or to be filed as exhibits to the Registration
Statement, other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and
validly existing as a corporation in good standing under the
laws of the State of Delaware and has the requisite corporate
power and authority to enter into and perform its obligations
under this Agreement and the Pooling and Servicing Agreement.
(vi) Each of this Agreement and the Pooling
and Servicing Agreement has been duly authorized, executed and
delivered by the Company.
(vii) Each of this Agreement and the Pooling
and Servicing Agreement constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be
limited by (A) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors generally,
(B) general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law, and
(C) public policy considerations underlying the securities laws
to the extent that the same limit the enforceability of any
provisions of this Agreement that purport or are construed to
provide indemnification with respect to securities law
violations.
(viii) The Offered Certificates, when duly and
validly executed, authenticated and delivered in accordance with
the Pooling and Servicing Agreement and
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paid for in accordance with this Agreement, will be entitled to the
benefits of the Pooling and Servicing Agreement.
(ix) Neither the sale of the Offered
Certificates to the Underwriters pursuant to this Agreement nor
the consummation of any of the transactions contemplated by or
the fulfillment by the Company of the terms of this Agreement
and the Pooling and Servicing Agreement, will conflict with or
result in a breach or violation of any term or provision of the
certificate of incorporation or by-laws of the Company, or any
federal or State of New York statute or regulation, or any order
known to such counsel of any federal or State of New York court
or agency or other governmental body having jurisdiction over
the Company, except such counsel need express no opinion as to
compliance with the securities laws of the State of New York and
other particular States in connection with the purchase and the
offer and sale of the Offered Certificates by the Underwriters.
(xi) No consent, approval, authorization or
order of any federal or State of New York or Delaware court,
agency or other governmental body is required for the
consummation by the Company of the transactions contemplated by
the terms of this Agreement and the Pooling and Servicing
Agreement, except such as may be required under the securities
laws of the State of New York and other particular States in
connection with the purchase and the offer and sale of the
Offered Certificates by the Underwriters as to which such
counsel need express no opinion, and except such as have been
obtained.
(xii) The Pooling and Servicing Agreement is
not required to be qualified under the Trust Indenture Act of
1939, as amended. The Trust Fund is not required to be
registered under the Investment Company Act of 1940, as amended.
(xiii) The statements set forth in the
Prospectus Supplement under the headings "Description of the
Certificates" and "Servicing of the Mortgage Loans" and in the
Basic Prospectus under the headings "Description of the
Certificates" and "Description of the Pooling Agreements",
insofar as such statements purport to summarize certain material
provisions of the Certificates and the Pooling and Servicing
Agreement, provide a fair and accurate summary of such
provisions.
(xiv) The statements set forth in each of the
Prospectus Supplement and the Basic Prospectus under the
headings "ERISA Considerations", "Certain Federal Income Tax
Consequences" and "Legal Investment", to the extent that they
purport to describe certain matters of federal law or legal
conclusions with respect thereto, while not discussing all
possible consequences of an investment in the Offered
Certificates to all investors, provide a fair and accurate
summary of such matters and conclusions set forth under such
headings.
(xv) As described in the Prospectus
Supplement, and assuming compliance with all the provisions of
the Pooling and Servicing Agreement, (A) REMIC I will qualify as
a real estate mortgage investment conduit (a "REMIC") within the
meaning of Sections 860A through 860G of the Internal Revenue
Code of 1986 in effect on the date hereof (the "REMIC
Provisions") and the REMIC I Regular Interests (as defined in
the Pooling and Servicing Agreement) will be "regular interests"
and the Class R-I Certificates will evidence the sole class of
"residual interests" in REMIC I (as both terms are defined in
the REMIC Provisions in effect on the Closing Date), (B) REMIC
II will qualify as a REMIC within the
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<PAGE>
meaning of the REMIC Provisions, and the REMIC II Regular Interests
(as defined in the Pooling and Servicing Agreement) will be "regular
interests" and the Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II, and (C) REMIC III will
qualify as a REMIC within the meaning of the REMIC Provisions, and
the Class S, Class A-1A, Class A-1B, Class A-1C, Class A-2, Class
A-3, Class A-4, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-7 and Class C Certificates will evidence
"regular interests" and the Class R-III Certificates will evidence
the sole class of "residual interests" in REMIC III.
(xvi) Assuming compliance with all the
provisions of the Pooling and Servicing Agreement, for City and
State of New York income and corporation franchise tax purposes: (A)
REMIC I, REMIC II and REMIC III will each be classified as a REMIC,
and not as a corporation, partnership or trust, in conformity with
the federal income tax treatment of REMIC I, REMIC II and REMIC III,
respectively; and (B) the Trust Fund will be exempt from all City
and State of New York taxation imposed on its income, franchise or
capital stock, and its assets will not be included in the
calculation of any City or State of New York franchise tax
liability.
Such opinion (x) may express its reliance as to factual
matters on certificates of government and agency officials and the
representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement and the
Pooling and Servicing Agreement, (y) may assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the Company, and (z) may be
qualified as an opinion only on the law of the State of New York, the
federal law of the United States of America and the General Corporation
Law of the State of Delaware.
Based on such counsel's participation in conferences
with officers and other representatives of the Company and of the
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Underwriters and their respective counsel, at which the contents of the
Registration Statement and the Prospectus were discussed and, although
such counsel need not pass upon or assume responsibility for the actual
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as stated in paragraphs
(xii) and (xiii) above) and need not make an independent check or
verification thereof for the purpose of rendering this opinion, on the
basis of the foregoing, such counsel shall also confirm that nothing has
come to the attention of such counsel that would lead such counsel to
believe that the Prospectus, as of the date of the Prospectus Supplement
and at the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (other than financial statements,
schedules and other numerical, financial and statistical data included
therein or omitted therefrom, the documents incorporated therein [oand
the information included therein or omitted therefrom relating to the
characteristics of the Mortgage Loans acquired by the Depositor from GE
Capital Access, Inc. ("GECA"; and such Mortgage Loans, the "GECA Mortgage
Loans")], as to which such counsel need express no opinion). Insofar as
questions of materiality are involved in the foregoing opinion, such
counsel may as to factual matters necessary to the determination of
materiality rely upon certificates and other information provided by
officers and other representatives to the Company and as to
determinations of materiality, may seek in the first instance and rely
where such counsel concludes such reliance is justifiable, on the view of
officers and other representatives of the Company.
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<PAGE>
(f) The Underwriters shall have received from GECA's
counsel, a letter, dated the Closing Date, and reasonably satisfactory in
form and substance to counsel for the Underwriters, to the effect that,
based on such counsel's participation in conferences with officers and
other representatives of the Company, GECA and the Underwriters, at which
the contents of the Prospectus Supplement were discussed and, although
such counsel need not pass upon or assume responsibility for the actual
accuracy, completeness or fairness of the statements contained in the
Prospectus Supplement and need not make an independent check or
verification thereof for the purpose of rendering this opinion, that
nothing has come to the attention of such counsel that would lead such
counsel to believe that the Prospectus Supplement, as of the date of the
Prospectus Supplement and at the Closing Date, insofar as it relates to
the characteristics of the GECA Mortgage Loans, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (other than
financial statements, schedules and other numerical, financial and
statistical data included therein or omitted therefrom and the documents
incorporated therein, as to which such counsel need express no opinion).
Insofar as questions of materiality are involved in the foregoing
opinion, such counsel may as to factual matters necessary to the
determination of materiality rely upon certificates and other information
provided by officers and other representatives to GECA and as to
determinations of materiality, may seek in the first instance and rely
where such counsel concludes such reliance is justifiable, on the view of
officers and other representatives of GECA.
(g) The Underwriters shall have received, with respect
to each of the Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, a favorable opinion of counsel, dated the Closing Date,
addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and
delivery of the Pooling and Servicing Agreement by such party and,
subject to the same limitations as set forth in Section 6(e)(vii), the
enforceability of the Pooling and Servicing Agreement against such party.
Such opinion may express its reliance as to factual matters on
representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of
parties to, this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion may assume the
due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party
on behalf of which such opinion is being rendered. Such opinion may be
qualified as an opinion only on the General Corporation Law of the State
of Delaware (if relevant), the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States.
(h) The Underwriters shall have received from Arthur
Andersen & Co., certified public accountants, a letter dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters stating in effect that using the assumptions
and methodology used by the Company, all of which shall be described in
such letter, they have recalculated such numbers and percentages set
forth in the Prospectus as the Underwriters may reasonably request and as
are agreed to by Arthur Andersen & Co., compared the results of their
calculations to the corresponding items in the Prospectus, and found each
such number and percentage set forth in the Prospectus to be in agreement
with the results of such calculations.
(i) The Offered Certificates listed on Schedule II
hereto shall have been rated as indicated on such Schedule by the rating
agency or agencies indicated.
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<PAGE>
(j) All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto and
thereto, shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, and the Underwriters and counsel for
the Underwriters shall have received such additional information,
certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and as
provided by this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
by either telegraph or telecopier confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale
of any Offered Certificates provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or
therein or comply with any provision hereof or thereof, other than by
reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase
and sale of such Offered Certificates.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
the Act or the Exchange Act of 1934, as amended (the "Exchange Act"), against
claims, damages, or liabilities, joint or several, to which such Underwriter
may become subject, under the Act, the Exchange Act 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 any part of the Registration
Statement when such part became effective, or in the Registration Statement,
any Preliminary Prospectus Supplement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any Computational Materials or ABS Term Sheets (as
defined in Section 9 below) in respect of which the Company agrees to
indemnify any Underwriter or any such controlling person, as set forth below,
when such are read in conjunction with the Prospectus) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter and
each such controlling person for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such
loss, claim, damage, liability, or action; provided, however, that (i) the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made (A) therein
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter directly or through another Underwriter
specifically for use in the preparation thereof or (B) in any Current Report
or any amendment or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein or omission therefrom results
(or is alleged to have resulted) directly from an error (a "Collateral Error")
in the information concerning the characteristics of the Mortgage Loans
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<PAGE>
furnished by the Company to an Underwriter in writing or by electronic
transmission that was used in the preparation of either (x) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) or (y) any
written or electronic materials furnished to prospective investors on which
the Computational Materials (or amendments or supplements) were based, (ii)
such indemnity with respect to any Preliminary Prospectus Supplement shall not
inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Certificates which are the subject thereof if
such person did not receive a copy of the Prospectus (or the Prospectus as
amended or supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in such
Preliminary Prospectus Supplement was corrected in the Prospectus (or the
Prospectus as amended or supplemented) and (iii) such indemnity with respect
to any Collateral Error shall not inure to the benefit of any Underwriter
person controlling any Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials or ABS Term
Sheets (or any written or electronic materials on which the Computational
Materials are based) that were prepared on the basis of such Collateral Error,
if, prior to the time of confirmation of the sale of the applicable Offered
Certificates to such person, the Company notified such Underwriter in writing
of the Collateral Error or provided in written or electronic form information
superseding or correcting such Collateral Error (in any such case, a
"Corrected Collateral Error"), and such Underwriter failed to notify such
person thereof or to deliver to such person corrected Computational Materials
(or underlying written or electronic materials) or ABS Term Sheets. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to (A) written information relating to such
Underwriter furnished to the Company by such Underwriter directly or through
another Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity, or (B) any Computational Materials or
ABS Term Sheets (or amendments or supplements thereof) delivered to
prospective investors by such Underwriter and furnished to the Company by such
Underwriter pursuant to or as contemplated by Section 9 and incorporated by
reference in the Registration Statement or the Prospectus or any amendment or
supplement thereof (except that no such indemnity shall be available for any
losses, claims, damages or liabilities, or actions in respect thereof,
resulting from any Collateral Error, other than a Corrected Collateral Error).
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page and under the heading
"Method of Distribution" in any Preliminary Prospectus Supplement or the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred to
in the foregoing indemnity (other than any Computational Materials or ABS Term
Sheets furnished to the Company by any Underwriter), and you confirm that such
statements are correct. Any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) furnished to the Company by a particular
Underwriter shall relate exclusively to and be the several responsibility of
such Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be
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made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 8. In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which may be
counsel representing the indemnifying party); provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next 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 you in the case of
paragraph (a) of this Section 8, representing the indemnified parties under
such paragraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages, or liabilities referred to in paragraph (a) or (b)
above as follows:
(i) in the case of any losses, claims, damages
and liabilities (or actions in respect thereof) which do not
arise out of or are not based upon any untrue statement or
omission of a material fact in any Computational Materials or
ABS Term Sheets (or any amendments or supplements thereof) in
such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase
price of the Offered Certificates specified in Schedule I hereto
and the Company is responsible for the balance; provided,
however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the
offering of the Offered Certificates) be responsible under this
subparagraph (i) for any amount in excess of the underwriting
discount applicable to the Offered Certificates purchased by
such Underwriter hereunder; and
(ii) in the case of any losses, claims,
damages and liabilities (or actions in respect thereof) which
arise out of or are based upon any untrue statement or omission
of a material fact in any Computational Materials or ABS Terms
Sheets (or any amendments or
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supplements thereof) or in any written or electronic materials on
which the Computational Materials are based, in such proportion as
is appropriate to reflect the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the
statement or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as
any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact in such
Computational Materials or ABS Term Sheets (or any amendments or
supplements thereof or such written or electronic materials) results
from information prepared by the Company on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Notwithstanding anything to the contrary in this
paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of the Act shall have the same
rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding
sentence of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Computational Materials and ABS Term Sheets. (a) Not
later than 10:30 a.m., New York City time, on the date hereof, the
Underwriters shall deliver to the Company and its counsel, as provided
below, a complete copy of all materials provided by the Underwriters to
prospective investors in the Offered Certificates which constitute either
(i) "Computational Materials" within the meaning of the no-action letter
dated May 20, 1994 issued by the Division of Corporation Finance of the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody &
Co. Incorporated, and Kidder Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together,
the "Kidder Letters") or (ii) "ABS Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and together with the Kidder Letters, the
"No-Action Letters"), if the filing of such materials with the Commission
is a condition of the relief granted in such letters and, in the case of
any such materials that constitute "Collateral Term Sheets" within the
meaning of the PSA Letter, such Collateral Term Sheets have not
previously been delivered to the Company as contemplated by Section
9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company and its
counsel pursuant to this paragraph (a) shall be made in paper form and,
in the case of ABS Term Sheets, electronic format suitable for filing
with the Commission.
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(b) Each underwriter represents and warrants to and
agrees with the Company, as of the date hereof and as of the Closing
Date, as applicable, that:
(i) if such Underwriter has provided any
Collateral Term Sheets to potential investors in the Offered
Certificates prior to the date hereof and if the filing of such
materials with the Commission is a condition of the relief
granted in the PSA Letter, then in each such case such
Underwriter delivered to the Company and its counsel, in the
manner contemplated by Section 9(a), a copy of such materials no
later than 10:30 a.m., New York City time, on the first business
day following the date on which such materials were initially
provided to a potential investor;
(ii) the Computational Materials (either in
original, aggregated or consolidated form) and ABS Term Sheets
furnished to the Company pursuant to Section 9(a) or as
contemplated in Section 9(b)(i) constitute all of the materials
relating to the Offered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to
prospective investors in the Offered Certificates prior to the
date hereof, except for any preliminary prospectus with respect
to the Offered Certificates and any Computational Materials and
ABS Term Sheets with respect to the Offered Certificates which
are not required to be filed with the Commission in accordance
with the No-Action Letters, and all Computational Materials and
ABS Term Sheets provided by such Underwriter to potential
investors in the Offered Certificates comply with the
requirements of the No-Action Letters;
(iii) on the respective dates any such
Computational Materials and/or ABS Term Sheets with respect to
the Offered Certificates referred to in Section 9(b)(ii) were
last furnished by such Underwriter to each prospective investor,
on the date of delivery thereof to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, such
Computational Materials and/or ABS Term Sheets did not and will
not include any untrue statement of a material fact, or, when
read in conjunction with the Prospectus, omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading;
(iv) at the time any Computational Materials
or ABS Term Sheets with respect to the Offered Certificates were
furnished to a prospective investor and on the date hereof, the
Underwriters possessed, and on the date of delivery of such
materials to the Company pursuant to or as contemplated by this
Section 9 and on the Closing Date, the Underwriters will
possess, the capability, knowledge, expertise, resources and
systems of internal control necessary to ensure that such
Computational Materials and/or ABS Term Sheets conform to the
representations and warranties of the Underwriters contained in
subparagraphs (ii) and (iii) above of this paragraph (b);
(v) all Collateral Term Sheets with respect to
the Offered Certificates furnished by such Underwriter to
potential investors contained and will contain a legend,
prominently displayed on the first page thereof, indicating that
the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus
and, except in the case of the initial Collateral Term Sheet,
that such information supersedes the information in all prior
Collateral Term Sheets; and
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(vi) on and after the date hereof, such
Underwriter shall not deliver or authorize the delivery of any
Computational Materials, ABS Term Sheets or other materials
relating to the Offered Certificates (whether in written,
electronic or other format) to any potential investor unless
such potential investor has received a Prospectus prior to or at
the same time as the delivery of such Computational Materials,
ABS Term Sheets or other materials.
Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials or
ABS Term Sheets with respect to the Offered Certificates included or will
include any untrue statement resulting directly from any Collateral Error
(except any Corrected Collateral Error, with respect to materials
prepared after the receipt by the Underwriters from the Company of notice
of such Corrected Collateral Error or materials superseding or correcting
such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that the
Company has not authorized and will not authorize the distribution of any
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates to any prospective investor. The Underwriters agree that
they will not represent to potential investors that any Computational
Materials and/or ABS Term Sheets with respect to the Offered Certificates
were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, it shall
be necessary in the opinion of the Underwriters or their counsel to amend
or supplement the Prospectus as a result of an untrue statement of a
material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this
Section 9 or the omission to state a material fact required, when
considered in conjunction with the Prospectus, to be stated therein or
necessary to make the statements therein, when read in conjunction with
the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules
thereunder, the Underwriters, at their expense (such expense to be
allocated between them based on the relative fault of the Underwriters)
(or, if such amendment or supplement is necessary due to a Collateral
Error (except any Corrected Collateral Error, with respect to materials
prepared after the receipt by the Underwriters from the Company of notice
of such Corrected Collateral Error or materials superseding or correcting
such Corrected Collateral Error), at the expense of the Company), shall
prepare and furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance and shall distribute such
amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or
supplemented. Each Underwriter represents and warrants to the Company, as
of the date of delivery of such amendment or supplement to the Company,
that such amendment or supplement will not include any untrue statement
of a material fact or, when read in conjunction with the Prospectus, omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Company shall have no
obligation to file such amendment or supplement if the Company determines
that (i) such amendment or supplement contains any untrue statement of a
material fact or, when read in conjunction with the Prospectus, omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading (it being understood, however, that
the Company shall have no obligation to review or pass upon the accuracy
or adequacy of, or to correct, any such amendment or supplement provided
by the Underwriters to the Company pursuant to this paragraph (d)) or
(ii) such filing is not required under the Act. Each Underwriter
represents and warrants to the Company,
-23-
<PAGE>
as of the date of delivery of such amendment or supplement to the Company,
that such amendment or supplement will not include any untrue statement of a
material fact or, when read in conjunction with the Prospectus, omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. Notwithstanding the foregoing, none of the
Underwriters make any representation or warranty as to whether any such
amendment or supplement of Computational Materials or ABS Term Sheets with
respect to the Offered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error).
(e) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, it shall
be necessary in the opinion of the Company or its counsel to amend or
supplement the Prospectus as a result of an untrue statement of a
material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this
Section 9 or the omission to state therein a material fact required, when
considered in conjunction with the Prospectus, to be stated therein or
necessary to make the statements therein, when read in conjunction with
the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules
thereunder, the Company promptly will notify each Underwriter of the
necessity of such amendment or supplement, and the Underwriters, at their
expense (such expense to be allocated between them based on the relative
fault of the Underwriters) (or, if such amendment or supplement is
necessary due to a Collateral Error (except any Corrected Collateral
Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral
Error), at the expense of the Company), shall prepare and furnish to the
Company for filing with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance and shall distribute such amendment or supplement to each
prospective investor in the Offered Certificates that received such
information being amended or supplemented. Each Underwriter represents
and warrants to the Company, as of the date of delivery of such amendment
or supplement to the Company, that such amendment or supplement will not
include any untrue statement of a material fact or, when read in
conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. Notwithstanding the foregoing, none of the Underwriters make
any representation or warranty as to whether any such amendment or
supplement of Computational Materials or ABS Term Sheets with respect to
the Offered Certificates included or will include any untrue statement
resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by
the Underwriters from the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral
Error).
(f) The Underwriters (at their own expense) further
agree to provide to the Company any accountants' letters obtained
relating to the Computational Materials and/or ABS Term Sheets, which
accountants' letters shall be addressed to the Company or shall state
that the Company may rely thereon; provided that the Underwriters shall
have no obligation to procure any such letter.
10. Substitution of Underwriters. (a) If any
Underwriter shall fail to take up and pay for the amount of the Offered
Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Offered Certificates in accordance with
the terms hereof, and the
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<PAGE>
amount of the Offered Certificates not purchased does not aggregate more than
10% of the total amount of the Offered Certificates set forth in Schedule I
hereof, the remaining Underwriters shall be obligated to take up and pay for
the Offered Certificates that the withdrawing or defaulting Underwriter agreed
but failed to purchase.
(b) If any Underwriter shall fail to take up and pay
for the amount of the Offered Certificates agreed by such Underwriter to
be purchased under this Agreement (such Underwriter being a "Defaulting
Underwriter"), upon tender of such Offered Certificates in accordance
with the terms hereof, and the amount of the Offered Certificates not
purchased aggregates more than 10% of the total amount of the Offered
Certificates set forth in Schedule I hereto, and arrangements
satisfactory to the remaining Underwriters and the Company for the
purchase of such Certificates by other persons are not made within 36
hours thereafter, this Agreement shall terminate. In the event of any
such termination the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g) and Section 8
hereof) nor shall any Underwriter (other than an Underwriter who shall
have failed, otherwise than for some reason permitted under this
Agreement, to purchase the amount of the Offered Certificates such
Underwriter agreed to purchase hereunder) be under any liability to the
Company (except to the extent provided in Sections 8 and 9 hereof).
Nothing herein shall be deemed to relieve any Defaulting Underwriter from
any liability it may have to the Company or any other Underwriter by
reason of its failure to take up and pay for Offered Certificates as
agreed by such Defaulting Underwriter.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters by notice
given to the Company prior to delivery of and payment for all Offered
Certificates if prior to such time (i) trading in securities of the
Company or any affiliate on the New York Stock Exchange shall have been
suspended or limited, or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared by
either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Underwriters, impractical to market the Offered Certificates.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Offered Certificates. The provisions of
Sections 7, 8 and 9 hereof shall survive the termination or cancellation
of this Agreement.
13. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Underwriters,
will be mailed, delivered or either telegraphed or transmitted by
telecopier and confirmed to them at the addresses set forth on Schedule I
hereto; or, if sent to the Company will be mailed, delivered or either
telegraphed or transmitted by telecopier and confirmed to it at 277 Park
Avenue, 9th Floor, New York, New York 10172, Attention: N. Dante LaRocca,
with a copy to Sidley & Austin, 875 Third Avenue, New York, New York
10022, Attention: William J. Cullen.
-25-
<PAGE>
14. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred
to in Section 8 hereof, and their successors and assigns, and no other
person will have any right or obligation hereunder.
15. Applicable Law; Counterparts. This Agreement will
be governed by and construed in accordance with the substantive laws of
the State of New York applicable to agreements made and to be performed
entirely in said State. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall together constitute but one and the same
instrument.
-26-
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/
-----------------------------------
Name:
Title:
Accepted at New York, New York
as of the date first written
above.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/
---------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal or Notional
Amount of Relevant
Underwriter Class of Offered
(and address) Class Certificates to be Purchased
- ------------- ----- ----------------------------
<S> <C> <C>
Donaldson, Lufkin & Jenrette
Securities Corporation* Class S $1,564,253,441
277 Park Avenue Class A-1A 291,005,000
New York, New York 10172 Class A-1B 835,257,000
Attention: N. Dante LaRocca Class A-1C 39,106,000
Class A-2 39,106,000
Class A-3 78,213,000
Class A-4 23,464,000
Class B-1 70,391,000
Class B-2 23,464,000
Class B-3 15,643,000
</TABLE>
- -----------------
* Only Underwriter
** Notional Amount
<PAGE>
SCHEDULE II
Registration Statement No. 333-32019
Basic Prospectus dated June 15, 1998
Prospectus Supplement dated June 18, 1998
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1, Class S,
Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class A-3, Class A-4,
Class B-1, Class B-2 and Class B-3
Cut-off Date: June 1, 1998
Closing: 10:00 a.m. on June 24, 1998
at the offices of
Sidley & Austin
875 Third Avenue
New York, New York 10022
<PAGE>
<TABLE>
<CAPTION>
Initial
Aggregate Principal
(or, in the case of
Class S
Certificates, Notional) Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating(3)
- ----------------- ------------------ ----------------- ----------------- ---------
<S> <C> <C> <C> <C>
Class S $1,564,253,441 0.0785%(4) 4.9614000% AAA/AAAr
Class A-1A $ 291,005,000 6.1100% 99.875000% AAA/AAA
Class A-1B $ 835,257,000 6.4100% 101.000000% AAA/AAA
Class A-1C $ 39,106,000 6.4600% 101.015625% AAA/AA+
Class A-2 $ 39,106,000 6.5100% 101.031250% AA/AA
Class A-3 $ 78,213,000 6.6500% 101.046875% A/A
Class A-4 $ 23,464,000 6.7600% 100.984375% A/A-
Class B-1 $ 70,391,000 6.9100% 101.046875% BBB/BBB
Class B-2 $ 23,464,000 7.1503%(4) 100.593750% BBB/BBB-
Class B-3 $ 15,643,000 7.1503%(4) 98.828125% BBB-/NR
</TABLE>
- -------------------
(1) Subject to a variance of plus or minus 5%
(2) Expressed as a percentage of the aggregate stated or notional
amount, as applicable, of the relevant class of Offered
Certificates to be purchased. The purchase price for each class
of the Offered Certificates will include accrued interest at the
initial Pass-Through Rate therefor on the aggregate stated or
notional amount, as applicable, thereof to be purchased from the
Cut-off Date to but not including the Closing Date.
(3) By each of Fitch IBCA, Inc. and Standard & Poor's Ratings Services,
a Division of the McGraw-Hill Companies, Inc.
(4) Approximate.
<PAGE>
Exhibit 4.1
================================================================================
DLJ COMMERCIAL MORTGAGE CORP.,
as Depositor,
GE CAPITAL LOAN SERVICES, INC.,
as Servicer,
MIDLAND LOAN SERVICES, INC.,
as Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee and REMIC Administrator,
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1998
------------------------------
$1,564,253,441
Commercial Mortgage Pass-Through Certificates
Series 1998-CG1
================================================================================
<PAGE>
TABLE OF CONTENTS
---------------
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
<S> <C>
1.01. Defined Terms....................................................................................................2
1.02. General Interpretive Principles.................................................................................41
1.03. Certain Calculations in Respect of the Mortgage Pool............................................................41
1.04. Cross-Collateralized Mortgage Loans.............................................................................43
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
2.01. Conveyance of Mortgage Loans....................................................................................44
2.02. Acceptance of Mortgage Assets by Trustee........................................................................46
2.03. Certain Repurchases and Substitutions of Mortgage Loans by the Originators......................................48
2.04. Representations and Warranties of the Depositor.................................................................51
2.05. Representations and Warranties of the Servicer..................................................................53
2.06. Representations and Warranties of the Special Servicer..........................................................54
2.07. Representations and Warranties of the Trustee...................................................................56
2.08. Representations and Warranties of the REMIC Administrator.......................................................57
2.09. Designation of the Certificates.................................................................................59
2.10. Creation of REMIC I; Issuance of REMIC I Regular Interests and Class R-I Certificates...........................60
2.11. Conveyance of REMIC I Regular Interests; Acceptance of REMIC I Regular Interests by Trustee
...............................................................................................................62
2.12. Creation of REMIC II; Issuance of REMIC II Regular Interests and Class R-II Certificates........................62
2.13. Conveyance of REMIC II Regular Interests; Acceptance of REMIC II Regular Interests by
Trustee.........................................................................................................64
2.14. Creation of REMIC III; Issuance of REMIC III Certificates.......................................................64
2.15. Acceptance of Grantor Trusts by Trustee; Issuance of Class D Certificates.......................................67
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
<S> <C>
3.01. Administration of the Mortgage Loans............................................................................69
3.02. Collection of Mortgage Loan Payments............................................................................70
3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts........................70
3.04. Collection Account and Distribution Account.....................................................................72
3.05. Permitted Withdrawals From the Collection Account and the Distribution Account..................................75
3.06. Investment of Funds in the Collection Account, Interest Reserve Account, Servicing Accounts,
Reserve Accounts and the REO Account............................................................................79
3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage...................................81
3.08. Enforcement of Alienation Clauses...............................................................................83
3.09. Realization Upon Defaulted Mortgage Loans.......................................................................83
3.10. Trustee to Cooperate; Release of Mortgage Files.................................................................86
3.11. Servicing and Special Servicing Compensation; Interest on and Reimbursement of Servicing
Advances; Payment of Certain Expenses; Obligations of the Trustee and any Fiscal Agent
regarding Back-up Servicing Advances............................................................................87
3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports...........................91
3.13. Annual Statement as to Compliance...............................................................................94
3.14. Reports by Independent Public Accountants.......................................................................94
3.15. Access to Certain Information...................................................................................95
3.16. Title to REO Property; REO Account..............................................................................95
3.17. Management of REO Property......................................................................................96
3.18. Sale of Mortgage Loans and REO Properties.......................................................................98
3.19. Additional Obligations of Servicer.............................................................................101
3.20. Modifications, Waivers, Amendments and Consents................................................................105
3.21. Transfer of Servicing Between Servicer and Special Servicer; Record Keeping....................................108
3.22. Sub-Servicing Agreements.......................................................................................109
3.23. Controlling Class Representative...............................................................................111
3.24. Certain Rights and Powers of the Controlling Class Representative..............................................113
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
4.01. Distributions..................................................................................................115
4.02. Statements to Certificateholders; Certain Other Reports........................................................124
4.03. P&I Advances; Advances relating to the Servicer Remittance Amount..............................................126
4.04. Allocation of Realized Losses and Additional Trust Fund Expenses...............................................129
4.05. Calculations...................................................................................................130
-ii-
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE V
THE CERTIFICATES
<S> <C>
5.01. The Certificates...............................................................................................131
5.02. Registration of Transfer and Exchange of Certificates..........................................................131
5.03. Book-Entry Certificates........................................................................................137
5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................................................138
5.05. Persons Deemed Owners..........................................................................................138
5.06. Certification by Certificate Owners............................................................................138
ARTICLE VI
THE DEPOSITOR, THE SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
6.01. Liability of the Depositor, the Servicer, the Special Servicer and the REMIC Administrator.....................140
6.02. Merger, Consolidation or Conversion of the Depositor, the Servicer, the Special Servicer or the
REMIC Administrator............................................................................................140
6.03. Limitation on Liability of the Depositor, the Servicer, the Special Servicer and the REMIC
Administrator..................................................................................................140
6.04. Servicer, Special Servicer and REMIC Administrator Not to Resign...............................................141
6.05. Rights of the Depositor and the Trustee in Respect of the Servicer, the Special Servicer and the
REMIC Administrator............................................................................................142
6.06. Designation of Special Servicer by the Controlling Class.......................................................143
6.07. Servicer or Special Servicer as Owner of a Certificate.........................................................143
ARTICLE VII
DEFAULT
7.01. Events of Default..............................................................................................145
7.02. Trustee to Act; Appointment of Successor.......................................................................148
7.03. Notification to Certificateholders.............................................................................149
7.04. Waiver of Events of Default....................................................................................149
7.05. Additional Remedies of Trustee Upon Event of Default...........................................................150
ARTICLE VIII
THE TRUSTEE
8.01. Duties of Trustee..............................................................................................151
8.02. Certain Matters Affecting the Trustee..........................................................................152
-iii-
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
8.03. Trustee and Fiscal Agent not Liable for Validity or Sufficiency of Certificates or Mortgage Loans
..............................................................................................................154
8.04. Trustee and Fiscal Agent May Own Certificates..................................................................154
8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee, REMIC Administrator and
Fiscal Agent...................................................................................................154
8.06. Eligibility Requirements for Trustee...........................................................................156
8.07. Resignation and Removal of Trustee.............................................................................156
8.08. Successor Trustee..............................................................................................157
8.09. Merger or Consolidation of Trustee.............................................................................158
8.10. Appointment of Co-Trustee or Separate Trustee..................................................................158
8.11. Appointment of Custodians......................................................................................159
8.12. Access to Certain Information..................................................................................159
8.13. Appointment of Fiscal Agent....................................................................................161
8.14 Advance Security Arrangement...................................................................................162
8.15. Filings with the Securities and Exchange Commission............................................................162
ARTICLE IX
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans...............................................164
9.02. Additional Termination Requirements............................................................................165
ARTICLE X
ADDITIONAL TAX PROVISIONS
10.01. Tax Administration.............................................................................................167
10.02. Depositor, Servicer, Special Servicer, Trustee and Fiscal Agent to Cooperate with REMIC
Administrator..................................................................................................170
10.03. Fees of the REMIC Administrator................................................................................170
10.04. Use of Agents..................................................................................................170
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment......................................................................................................171
11.02. Recordation of Agreement; Counterparts.........................................................................172
11.03. Limitation on Rights of Certificateholders.....................................................................172
11.04. Governing Law..................................................................................................173
11.05. Notices........................................................................................................173
11.06. Severability of Provisions.....................................................................................174
11.07. Successors and Assigns; Beneficiaries..........................................................................174
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
11.08. Article and Section Headings...................................................................................174
11.09. Notices to and from the Rating Agencies........................................................................174
11.10. Notices to Controlling Class Representative....................................................................176
11.11. Information Requested by GECA..................................................................................176
11.12. Complete Agreement.............................................................................................176
EXHIBITS
EXHIBIT A-1 Form of Class S Certificates
EXHIBIT A-2 Form of Class A-1A and Class A-1B Certificates
EXHIBIT A-3 Form of Class A-1C, Class A-2, Class A-3, Class A-4, Class B-1, Class B-2 and
Class B-3 Certificates
EXHIBIT A-4 Form of Class B-4, Class B-5, Class B-6, Class B-7 and Class C Certificates
EXHIBIT A-5 Form of Class D-1 and Class D-2 Certificates
EXHIBIT A-6 Form of Class R-I, Class R-II and Class R-III Certificates
EXHIBIT B-1A Schedule of Column Mortgage Loans
EXHIBIT B-1B Schedule of GECA Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT C Letter of Representations among Depositor, Trustee and initial Depository
EXHIBIT D-1 Form of Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2A Form of CSSA Loan File Report
EXHIBIT E-2B Form of CSSA Property File Report
EXHIBIT E-3 Form of Comparative Financial Status Report
EXHIBIT E-4 Form of Delinquent Loan Status Report
EXHIBIT E-5 Form of Historical Loan Modification Report
EXHIBIT E-6 Form of Historical Loss Estimate Report
EXHIBIT E-7 Form of NOI Adjustment Worksheet
EXHIBIT E-8 Form of Operating Statement Analysis
EXHIBIT E-9 Form of REO Status Report
EXHIBIT E-10 Form of Watch List
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered Certificates
EXHIBIT G Form of Transferee Certificate in Connection with ERISA
(Definitive Subordinated Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Residual
Interest Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Residual Interest Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate Owner
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M-1 Form of Column Mortgage Loan Purchase and Sale Agreement
EXHIBIT M-2 Form of GECA Mortgage Loan Purchase and Sale Agreement
EXHIBIT N-1 Form of Column Third Party Originator Agreement with ARCS
EXHIBIT N-2 Form of Column Third Party Originator Agreement with ITLA
EXHIBIT N-3 Form of Column Third Party Originator Agreement with Union Capital
EXHIBIT O Schedule of Designated ARD Loans
</TABLE>
-vi-
<PAGE>
This Pooling and Servicing Agreement, is dated and effective
as of June 1, 1998, among DLJ COMMERCIAL MORTGAGE CORP. as Depositor, GE CAPITAL
LOAN SERVICES, INC. as Servicer, MIDLAND LOAN SERVICES, INC. as Special
Servicer, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION as Trustee and REMIC
Administrator.
PRELIMINARY STATEMENT:
Column (as defined herein) has sold to the Depositor, pursuant
to the Mortgage Loan Purchase Agreement dated as of June 18, 1998 (as such may
be amended, the "Column Mortgage Loan Purchase and Sale Agreement"), between
Column and the Depositor, those Mortgage Loans (as defined herein) identified as
of the date hereof on the schedule attached hereto as Exhibit B-1A. A form of
the Column Mortgage Loan Purchase and Sale Agreement is attached hereto as
Exhibit M-1.
GECA (as defined herein) has sold to the Depositor, pursuant
to the Mortgage Loan Purchase Agreement dated as of June 18, 1998 (as such may
be amended, the "GECA Mortgage Loan Purchase and Sale Agreement"), between GECA
and the Depositor, those Mortgage Loans identified as of the date hereof on the
schedule attached hereto as Exhibit B-1B. A form of the GECA Mortgage Loan
Purchase and Sale Agreement is attached hereto as Exhibit M-2.
The parties hereto desire to provide for, among other things,
(i) the creation of a common law trust, (ii) the transfer of the Mortgage Loans
identified as of the date hereof on the schedules attached hereto as Exhibit
B-1A and Exhibit B-1B, together with certain related rights, funds and property,
by the Depositor to the Trustee for the benefit of the Certificateholders (as
defined herein), (iii) the issuance of mortgage pass-through certificates in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest in the trust fund to be created hereunder, and (iv) the
servicing and administration of the Mortgage Loans and other assets that from
time to time shall constitute the trust fund to be created hereunder.
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
-1-
<PAGE>
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Section 1.01, subject to
modification in accordance with Section 1.04.
"30/360 Basis": The accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest
on a 30/360 Basis.
"Accrued Certificate Interest": The interest accrued from time
to time in respect of any Class of Regular Interest Certificates, calculated in
accordance with Section 2.14(g).
"Accrued Component Interest": The interest accrued from time
to time in respect of any Class S REMIC III Regular Interest, in each such case
calculated in accordance with Section 2.14(f).
"Acquisition Date": With respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
within the meaning of Treasury regulation Section 1.856-6(b)(1), which is the
first day on which the Trust is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the
basis of the actual number of days elapsed during any calendar month in a year
assumed to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues
interest on an Actual/360 Basis.
"Additional Collateral": Any non-real property (including any
Letter of Credit) pledged and/or delivered by the related Mortgagor and held by
the mortgagee to secure payment on any Mortgage Loan.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the principal
balance of such Mortgage Loan has been paid in full), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest.
"Additional Interest Rate": With respect to any ARD Loan after
its Anticipated Repayment Date, the incremental increase in the Mortgage Rate
for such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
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"Additional Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in
Section 3.11(d).
"Additional Trust Fund Expense": Any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Regular Interest Certificateholders'
receiving less than the full amount of principal and/or Distributable
Certificate Interest to which they are entitled on any Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, all in accordance with Section
3.11(g) or Section 4.03(e), as applicable.
"Advance Security Arrangement": As defined in Section 8.14.
"Adverse Grantor Trust Event": Either (i) any impairment of
the status of either of Grantor Trust D-1 or Grantor Trust D-2 as a Grantor
Trust or (ii) the imposition of a tax upon either of Grantor Trust D-1 or
Grantor Trust D-2 or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency.
"Adverse REMIC Event": Either (i) any impairment of the status
of any REMIC Pool as a REMIC or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon any REMIC Pool or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on prohibited contributions set forth in Section 860G(d)
of the Code).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement together
with all amendments hereof and supplements hereto.
"Alternate Advancer": As defined in Section 4.03(g).
"A.M. Best": A.M. Best Company or its successor in interest.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section
3.13.
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"Anticipated Repayment Date": With respect to any ARD Loan,
the date specified on the related Mortgage Note, as of which Additional Interest
shall begin to accrue on such Mortgage Loan, which date is prior to the Stated
Maturity Date for such Mortgage Loan.
"Appraisal": With respect to any Mortgaged Property or REO
Property as to which an appraisal is required to be performed pursuant to the
terms of this Agreement, a narrative appraisal complying with USPAP (or, in the
case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance
as of the date of such appraisal of $1,000,000 or less, a limited appraisal and
a summary report) that (i) indicates the "market value" of the subject property
(within the meaning of 12 CFR ss. 225.62(g)) and (ii) is conducted by a
Qualified Appraiser.
"Appraisal Reduction Amount": With respect to any Required
Appraisal Loan, an amount (calculated as of the Determination Date immediately
following the later of (a) the date on which the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof was obtained by the Special
Servicer pursuant to this Agreement and (b) the earliest of the relevant dates
in respect of such Required Appraisal Loan specified in the first sentence of
Section 3.19(c) hereof) equal to the excess, if any, of (x) the sum of (i) the
Stated Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Servicer, the Trustee or any Fiscal
Agent, all accrued and unpaid interest on such Required Appraisal Loan at the
related Mortgage Rate through the most recent Due Date prior to such
Determination Date (net of related Servicing Fees and, in the case of an ARD
Loan, after its Anticipated Repayment Date, net of related Additional Interest),
(iii) all accrued but unpaid Servicing Fees and Special Servicing Fees in
respect of such Required Appraisal Loan, (iv) all related unreimbursed Advances
made by or on behalf of the Servicer, the Special Servicer, the Trustee or any
Fiscal Agent in respect of such Required Appraisal Loan, together with all
unpaid Advance Interest accrued on such Advances, and (v) all currently due but
unpaid real estate taxes and assessments, insurance premiums, and if applicable,
ground rents in respect of the related Mortgaged Property or REO Property (net
of any Escrow Payments or other reserves held by the Servicer or the Special
Servicer with respect to any such item), over (y) 90% of an amount equal to (i)
the Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal acceptable for
purposes of Section 3.19(c) hereof, net of (ii) the amount of any obligation(s)
secured by any mortgage liens on such Mortgaged Property or REO Property, as
applicable, that are prior to the lien of the Required Appraisal Loan.
Notwithstanding the foregoing, if in the case of any Required Appraisal Loan an
Appraisal acceptable for purposes of Section 3.19(c) hereof is not obtained
within the earlier of (x) 60 days following the date described in respect of
such Required Appraisal Loan specified in clause (ii)(A) of the first sentence
of Section 3.19(c) hereof and (y) 90 days following the earliest of the relevant
dates in respect of such Required Appraisal Loan specified in clauses (i),
(ii)(B), (iii) and (iv) of the first sentence of Section 3.19(c) hereof, then
until such Appraisal is obtained the Appraisal Reduction Amount will equal 25%
of the Stated Principal Balance of such Required Appraisal Loan; provided,
however, that upon receipt of an Appraisal acceptable for purposes of Section
3.19(c) hereof, the Appraisal Reduction Amount for such Required Appraisal Loan
will be recalculated in accordance with the preceding sentence.
"Appraised Value": With respect to each Mortgaged Property or
REO Property, the appraised value thereof (as is) based upon the most recent
Appraisal obtained pursuant to this Agreement but in no event based upon an
Appraisal more than 12 months old.
"ARCS": ARCS Commercial Mortgage Co., L.P. or its successor in
interest.
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"ARD Loan": A Mortgage Loan that provides for the accrual of
Additional Interest thereon if such Mortgage Loan is not paid in full on or
prior to its Anticipated Repayment Date.
"Assignment of Leases": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the related Mortgagor in connection with the origination
of the related Mortgage Loan, as such assignment may be amended, modified,
renewed or extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to any Balloon
Mortgage Loan delinquent in respect of its Balloon Payment, for each Due Date
coinciding with or following its most recent scheduled maturity date (including
the related Stated Maturity Date or any extended maturity date) as of which such
Mortgage Loan remains outstanding and part of the Trust Fund (provided that such
Mortgage Loan was not paid in full, and no other Liquidation Event occurred in
respect thereof, before the end of the Collection Period in which such maturity
date occurs), the scheduled monthly payment of principal and/or interest deemed
to be due in respect of such Mortgage Loan on such Due Date equal to the amount
that would have been due in respect thereof on such Due Date if such Mortgage
Loan had been required to continue to accrue interest (exclusive, however, in
the case of an ARD Loan after its Anticipated Repayment Date, of Additional
Interest) in accordance with its terms, and to pay principal in accordance with
the amortization schedule (if any) in effect immediately prior to, and without
regard to the occurrence of, such maturity date. With respect to any REO
Mortgage Loan, for any Due Date as of which the related REO Property remains
part of the Trust Fund, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
Monthly Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding sentence of this definition, the Assumed Monthly Payment) that was due
(or deemed due) in respect of the related Mortgage Loan on the last Due Date
prior to its becoming an REO Mortgage Loan.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) all amounts on deposit
in the Distribution Account as of 11:00 a.m., New York City time, on such
Distribution Date, (ii) to the extent not included in the amount described in
the preceding clause (i), any P&I Advances and/or Compensating Interest Payments
that were made on and in respect of such Distribution Date, and (iii) to the
extent not included in the amount described in the preceding clause (i), if such
Distribution Date occurs during March of any year, the aggregate of the Interest
Reserve Amounts transferred from the Interest Reserve Account to the
Distribution Account in respect of each Interest Reserve Loan for distribution
on such Distribution Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any payments of principal (including Principal
Prepayments) and interest, Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period, (iii) any Prepayment Premiums,
Yield Maintenance Premiums and/or Additional Interest; (iv) any amounts payable
or reimbursable to any Person from the Distribution Account pursuant to clauses
(ii) through (v) of Section 3.05(b), (v) if such Distribution Date occurs in
February of any year or during January of any year that is not a leap year, the
Interest Reserve Amounts with respect to the Interest Reserve Loans to be
withdrawn from the Distribution Account (or otherwise deducted from the related
Servicer Remittance Amount and/or the related P&I Advances) and deposited into
the Interest Reserve Account in respect of such Distribution Date and held for
future distribution pursuant to Section 3.04(c), and (vi) any amounts deposited
in the Distribution Account in error; provided that the Available Distribution
Amount for the Final Distribution Date shall be calculated without regard to
clauses (b)(i) and (b)(ii) of this definition.
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"Balloon Mortgage Loan": Any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date (or, in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment": Any Monthly Payment payable on a Mortgage
Loan at scheduled maturity that is at least twice as large as the normal Monthly
Payment due on such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated June 15,
1998, relating to trust funds established by the Sponsor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Book-Entry Subordinated Certificate": Any Subordinated
Certificate that constitutes a Book-Entry Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Minneapolis, Minnesota,
either of the cities in which the Primary Servicing Offices of the Servicer and
the Special Servicer are located or the city in which the Corporate Trust Office
of the Trustee is located, are authorized or obligated by law or executive order
to remain closed.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor": With respect to any Class of Regular
Interest Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to eight places, the numerator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, then
outstanding, and the denominator of which is the related Class Principal Balance
or Class Notional Amount, as the case may be, outstanding as of the Closing
Date.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that:
(i) neither a Disqualified Organization nor a Non-United States Person shall be
a "Holder" of, or a "Certificateholder" with respect to, a Residual Interest
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval or waiver pursuant to this Agreement that specifically relates
to the rights, duties and/or obligations hereunder of any of the Depositor, the
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or any
Fiscal Agent in its respective
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capacity as such (other than any consent, approval or waiver contemplated by any
of Sections 3.23, 3.24 and 6.06), any Certificate registered in the name of such
party or in the name of any Affiliate thereof shall be deemed not to be
outstanding, and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent, approval or waiver that specifically
relates to such party has been obtained. The Certificate Registrar shall be
entitled to request and conclusively rely upon a certificate of the Depositor,
the Servicer or the Special Servicer in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Certificateholders" or "Holders" shall reflect the rights of Certificate Owners
only insofar as they may indirectly exercise such rights through the Depository
and the Depository Participants (except as otherwise specified herein), it being
herein acknowledged and agreed that the parties hereto shall be required to
recognize as a "Certificateholder" or "Holder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Certificate Notional Amount": With respect to any Class S
Certificate, the hypothetical or notional principal amount on which such
Certificate accrues (or is deemed to accrue) interest from time to time, which,
as of any date of determination, is equal to the product of (a) the then
Certificate Factor for the Class S Certificates, multiplied by (b) the amount
specified on the face of such Certificate as the initial Certificate Notional
Amount thereof.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any
Sequential Pay Certificate, as of any date of determination, the then
outstanding principal amount of such Certificate equal to the product of (a) the
then Certificate Factor for the Class of Sequential Pay Certificates to which
such Certificate belongs, multiplied by (b) the amount specified on the face of
such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same alphabetical and, if applicable, numerical class designation and having the
same payment terms. The respective Classes of Certificates are designated in
Section 2.09(a). Any reference in any other Section or Subsection of this
Agreement to any Certificate or Certificates preceded by a Class designation
shall be to a Certificate or Certificates of the Class so designated in Section
2.09(a).
"Class A Certificate": Any of the Certificates designated as
such in Section 2.09.
"Class B Certificate": Any of the Certificates designated as
such in Section 2.09.
"Class D-1 Sub-Account": A sub-account of the Distribution
Account established pursuant to Section 3.04(b), which sub-account shall
constitute an asset of the Trust Fund and Grantor Trust D-1 but not an asset of
any REMIC Pool.
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"Class D-2 Sub-Account": A sub-account of the Distribution
Account established pursuant to Section 3.04(b), which sub-account shall
constitute an asset of the Trust Fund and Grantor Trust D-2 but not an asset of
any REMIC Pool.
"Class Notional Amount": As defined in Section 2.14(d).
"Class Principal Balance": As defined in Section 2.14(e).
"Class S REMIC III Regular Interest": As defined in Section
2.14(b).
"Class S Strip Rate": As defined in Section 2.14(d).
"Closing Date": June 24, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The segregated account or accounts
created and maintained by the Servicer pursuant to Section 3.04(a) in trust for
the Certificateholders, which shall be entitled "GE Capital Loan Services, Inc.
[or the name of any successor Servicer], as Servicer, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1".
"Collection Period": With respect to any Distribution Date,
the period commencing immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing immediately following
the Cut-off Date) and ending on and including the Determination Date in the
calendar month in which such Distribution Date occurs.
"Column": Column Financial, Inc. or its successor in interest.
"Column Mortgage Loan": Any of the Mortgage Loans sold by
Column to the Depositor pursuant to the Column Mortgage Loan Purchase and Sale
Agreement.
"Column Mortgage Loan Purchase and Sale Agreement": As defined
in the Preliminary Statement.
"Column Third Party Mortgage Loan": Any Mortgage Loan
originated by a Column Third Party Originator.
"Column Third Party Originator": With respect to any Column
Mortgage Loan of which Column is not the originator, the originator of such
Mortgage Loan, which is (i) ARCS, (ii) ITLA or (iii) Union Capital, as
identified on the Mortgage Loan Schedule.
"Column Third Party Originator Agreement": With respect to
ARCS and each Column Third Party Mortgage Loan originated thereby, the Seller's
Warranty Certificate dated as of June 18, 1998, from ARCS in favor of DLJ
Mortgage Capital, Inc., the form of which is attached hereto as Exhibit N-1;
with respect to ITLA and each Column Third Party Mortgage Loan originated
thereby, the Seller's Warranty Certificate dated as of June 18, 1998, from ITLA
in favor of DLJ Mortgage Capital, Inc., the form of which
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is attached hereto as Exhibit N-2 and, with respect to Union Capital and each
Column Third Party Mortgage Loan originated thereby, the Seller's Warranty
Certificate dated as of June 17, 1998, from Union Capital in favor of DLJ
Mortgage Capital, Inc., the form of which is attached hereto as Exhibit N-3.
"Commission": The Securities and Exchange Commission or any
successor thereto.
"Comparative Financial Status Report": A report substantially
containing the information described in Exhibit E-3 attached hereto, including,
among other things, the occupancy and Debt Service Coverage Ratio for each
Mortgage Loan or the related Mortgaged Property, as applicable, as of the
Determination Date immediately preceding the preparation of such report and the
revenue and net operating income for each of three periods (to the extent such
information is available): (i) the most current available year-to-date, (ii) the
previous two full fiscal years, and (iii) the "base year" (representing the
original analysis of information used as of the Cut-off Date). For the purposes
of the production by the Servicer or the Special Servicer of any such report
that is required to state information for any period prior to the Cut-off Date,
the Servicer or the Special Servicer, as the case may be, may conclusively rely
(without independent verification), absent manifest error, on information
provided to it by the related Seller, by the related Mortgagor or (x) in the
case of such a report produced by the Servicer, by the Special Servicer (if
other than the Servicer or an Affiliate thereof) and (y) in the case of such a
report produced by the Special Servicer, by the Servicer (if other than the
Special Servicer or an Affiliate thereof).
"Compensating Interest Payment": With respect to any
Distribution Date, any payment made by the Servicer pursuant to Section 3.19(a)
to cover Prepayment Interest Shortfalls incurred during the related Collection
Period.
"Component Notional Amount": As defined in Section 2.14(d).
"Controlling Class": As of any date of determination, the
Class of Sequential Pay Certificates with the lowest payment priority pursuant
to Section 4.01(a), that has a then outstanding Class Principal Balance that is
not less than 25% (or, in the case of the Class C Certificates, 20%) of its
initial Class Principal Balance; provided that, if no Class of Sequential Pay
Certificates has a Class Principal Balance that satisfies the foregoing
requirement, then the Controlling Class shall be the Class of Sequential Pay
Certificates with the largest Class Principal Balance then outstanding. For
purposes of this definition, the Class A-1A and Class A-1B Certificates shall be
treated as a single Class and, if appropriate under the terms of this
definition, shall collectively constitute the Controlling Class.
"Controlling Class Representative": As defined in Section
3.23(a).
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property becoming an REO Property).
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"Corresponding REMIC II Regular Interest": With respect to any
Class of Sequential Pay Certificates, the REMIC II Regular Interest that has an
alphabetical and, if applicable, numerical designation that is the same as the
alphabetical and, if applicable, numerical Class designation for such Class of
Sequential Pay Certificates; and, with respect to any Class S REMIC III Regular
Interest, II Regular Interest that has an alphabetical and, if applicable,
numerical designation that, when preceded by "S-", is the same as the
alphabetical and, if applicable, numerical designation for such Class S
REMIC III Regular Interest.
"Cross-Collateralized Group": Any group of Mortgage Loans that
is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that
pursuant to Section 1.04 is deemed to be, or by its terms actually is,
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"CSSA": The Commercial Real Estate Secondary Market and
Securitization Association, or any association or organization that is a
successor thereto.
"CSSA Loan File Report": The report substantially in the form
and containing the information described in Exhibit E-2A attached hereto.
"CSSA Property File Report": The report substantially in the
form and containing the information described in Exhibit E-2B hereto.
"Custodian": A Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files.
"Cut-off Date": June 1, 1998.
"Cut-off Date Balance": With respect to any Original Mortgage
Loan, the outstanding principal balance of such Mortgage Loan as of the Cut-off
Date, after application of all payments of principal due on or before such date,
whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan, as of any date of determination, and without regard to the
cross-collateralization in the case of any Cross-Collateralized Mortgage Loan,
the ratio of (x) the Net Operating Income (before payment of any debt service on
such Mortgage Loan) generated by the related Mortgaged Property during the most
recent period of not more than twelve months or less than three months for which
Net Operating Income can be calculated (annualized if such period is less than
twelve months), to (y) twelve times the amount of the Monthly Payment in effect
for such Mortgage Loan as of such date of determination.
"Default Charges": Default Interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Defaulted Mortgage Loan": A Specially Serviced Mortgage Loan
(i) that is delinquent in an amount equal to at least two Monthly Payments (not
including the Balloon Payment, if any) or is delinquent thirty (30) days or more
in respect of its Balloon Payment, in either case such delinquency to be
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note
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and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note, or (ii) as to which the Special Servicer has, by written
notice to the related Mortgagor, accelerated the maturity of the indebtedness
evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Default Interest": With respect to any Mortgage Loan (or
successor REO Loan), any amounts collected thereon, other than late payment
charges, Prepayment Premiums or Yield Maintenance Premiums, that represent
interest (exclusive, if applicable, of Additional Interest) in excess of
interest accrued on the principal balance of such Mortgage Loan (or REO Loan) at
the related Mortgage Rate, such excess interest arising out of a default under
such Mortgage Loan.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Mortgage Loan which is repurchased
from the Trust or as to which one or more Replacement Mortgage Loans are
substituted, in either case as contemplated by Section 2.03.
"Delinquent Loan Status Report": A report substantially
containing the information described in Exhibit E-4 attached hereto, including,
among other things, those Mortgage Loans which, as of the close of business on
the Determination Date immediately preceding the preparation of such report,
were (1) delinquent 30-59 days, (2) delinquent 60-89 days, (3) delinquent 90
days or more, (4) current but specially serviced, or (5) were in foreclosure but
were not REO Property.
"Depositor": DLJ Commercial Mortgage Corp. or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Designated ARD Loan": Any ARD Loan set forth on Exhibit O
hereto.
"Determination Date": With respect to any calendar month,
commencing in July 1998, the 5th day of such month (or, if such 5th day is not a
Business Day, the immediately preceding Business Day). Each Determination Date
will relate to the Distribution Date in the same calendar month.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon or any use
of such REO Property in a trade or business conducted by the Trust other than
through an Independent Contractor; provided, however, that the Special Servicer
(or any Sub-Servicer on behalf of the Special
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Servicer) shall not be considered to Directly Operate an REO Property solely
because the Special Servicer (or any Sub-Servicer on behalf of the Special
Servicer) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Discount Rate": As defined in Section 4.01(b).
"Disqualified Organization": Any of the following: (i) the
United States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Residual Interest Certificate by such
Person may cause the Trust or any Person having an Ownership Interest in any
Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Interest Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
"Distributable Certificate Interest": With respect to any
Class of Regular Interest Certificates, for any Distribution Date, an amount of
interest equal to all Accrued Certificate Interest in respect of such Class of
Regular Interest Certificates for the related Interest Accrual Period, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
expressed as a decimal, the numerator of which is the Accrued Certificate
Interest in respect of such Class of Regular Interest Certificates for the
related Interest Accrual Period, and the denominator of which is the aggregate
Accrued Certificate Interest in respect of all the Classes Regular Interest
Certificates for the related Interest Accrual Period.
"Distributable Component Interest": With respect to any Class
S REMIC III Regular Interest, for any Distribution Date, an amount of interest
equal to all Accrued Component Interest in respect of such Class S REMIC III
Regular Interest for the related Interest Accrual Period, reduced (to not less
than zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date, multiplied by (ii) a fraction, expressed as a
decimal, the numerator of which is the Accrued Component Interest in respect of
such Class S REMIC III Regular Interest for the related Interest Accrual Period,
and the denominator of which is the aggregate Accrued Certificate Interest in
respect of all the Regular Interest Certificates for the related Interest
Accrual Period.
"Distribution Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b) in trust for
the Certificateholders, which shall be entitled "Norwest Bank Minnesota,
National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-CG1."
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"Distribution Date": With respect to any calendar month,
commencing in July 1998, the later of (i) the 10th day of such month (or, if
such 10th day is not a Business Day, the Business Day immediately following) and
(ii) the fourth Business Day following the Determination Date occurring in such
month.
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due.
"Eligible Account": Any of (i) an account maintained with a
federal or state chartered depository institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which (or of such
institution's parent holding company) are rated no less than "AA" by each of S&P
and Fitch (if then rated by Fitch) (if the deposits are to be held in the
account for more than 30 days), or the short-term deposit or short-term
unsecured debt obligations of which (or of such institution's parent holding
company) are rated no less than "A-1" by S&P and "F-1+" by Fitch (if then rated
by Fitch) (if the deposits are to be held in the account for 30 days or less),
in any event at any time funds are on deposit therein, or (ii) a segregated
trust account maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b), and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
federal or state authority, or (iii) any other account that is acceptable to the
Rating Agencies (as evidenced by written confirmation to the Trustee from each
Rating Agency that the use of such account would not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated Certificates), or
(iv) an account maintained with Bankers Trust Company if (A) the long-term
unsecured debt obligations thereof are rated no less than "A+" by Fitch and "A"
by S&P and (B) the short-term unsecured debt obligations thereof are rated no
less than "A-1" by S&P.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": Any of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"FDIC": The Federal Deposit Insurance Corporation or any
successor.
"FHLMC": The Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on
which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination": A determination made by the
Special Servicer, in its reasonable, good faith judgment, with respect to any
Mortgage Loan or REO Property (other than a
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Mortgage Loan that is paid in full and other than a Mortgage Loan or REO
Property, as the case may be, that is repurchased or replaced by a Column Third
Party Originator pursuant to the related Column Third Party Originator
Agreement, repurchased or replaced by a Seller pursuant to the related Mortgage
Loan Purchase and Sale Agreement or purchased by the Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder pursuant to Section
9.01), that there has been a recovery of all related Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries that will ultimately be
recoverable.
"Fiscal Agent": A Person who is at any time appointed by the
Trustee pursuant to Section 8.13 to act as fiscal agent hereunder.
"Fiscal Agent Agreement": As defined in Section 8.13.
"Fitch": Fitch IBCA, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the other parties hereto, and specific ratings of
Fitch IBCA, Inc. herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated. References herein to "applicable rating
category" (other than such references to "highest applicable rating category")
shall, in the case of Fitch, be deemed to refer to such applicable rating
category of Fitch, without regard to any plus or minus or other comparable
rating qualification.
"FNMA": The Federal National Mortgage Association or any
successor.
"GECA": GE Capital Access, Inc. or its successor in interest.
"GECA Mortgage Loan": Any of the Mortgage Loans sold by GECA
to the Depositor pursuant to the GECA Mortgage Loan Purchase and Sale Agreement.
"GECA Mortgage Loan Purchase and Sale Agreement": As defined
in the Preliminary Statement.
"Grantor Trust": A grantor trust as defined under Subpart E of
Part 1 of Subchapter J of the Code.
"Grantor Trust Certificate": Any of the Certificates
designated as such in Section 2.09.
"Grantor Trust D-1": The Grantor Trust designated as such in
Section 2.15(a).
"Grantor Trust D-2": The Grantor Trust designated as such in
Section 2.15(b).
"Ground Lease": The ground lease pursuant to which any
Mortgagor holds a leasehold interest in the related Mortgaged Property.
"Ground Sub-Lease": The ground sub-lease pursuant to which any
Mortgagor holds a sub-leasehold interest in the related Mortgaged Property.
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"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Loan Modification Report": A report substantially
containing the information described in Exhibit E-5 attached hereto, and setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, have been modified pursuant to this Agreement (i) during the related
Collection Period and (ii) since the Cutoff Date, showing the original and the
revised terms thereof.
"Historical Loss Estimate Report": A report substantially
containing the information described in Exhibit E-6 attached hereto, and setting
forth, among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report, (i) the aggregate amount
of Liquidation Proceeds and expenses relating to each Final Recovery
Determination made, both during the related Collection Period and historically,
and (ii) the amount of Realized Losses occurring during the related Collection
Period and historically, set forth on a Mortgage Loan-by-Mortgage Loan basis.
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, each Seller,
the Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any
Fiscal Agent and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, either Seller, the Servicer, the Special Servicer, the REMIC
Administrator, the Trustee, any Fiscal Agent or any Affiliate thereof, and (iii)
is not connected with the Depositor, either Seller, the Servicer, the Special
Servicer, the REMIC Administrator, the Trustee, any Fiscal Agent or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, either Seller,
the Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any
Fiscal Agent or any Affiliate thereof merely because such Person is the
beneficial owner of 1% or less of any class of securities issued by the
Depositor, such Seller, the Servicer, the Special Servicer, the REMIC
Administrator, the Trustee, such Fiscal Agent or any Affiliate thereof, as the
case may be.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as the Trust does not receive or derive any income from
such Person and provided that the relationship between such Person and the Trust
is at arm's length, all within the meaning of Treasury regulation Section 1.856-
4(b)(5), or any other Person upon receipt by the Trustee and the REMIC
Administrator of an Opinion of Counsel, which shall be at no expense to the
Trustee, the REMIC Administrator or the Trust, to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such
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REO Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Initial Pool Balance": The aggregate Cut-off Date Balance of
all the Original Mortgage Loans.
"Institutional Accredited Investor": An "accredited investor"
as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO
Property, any hazard insurance policy, flood insurance policy, title insurance
policy or other insurance policy that is maintained from time to time in respect
of such Mortgage Loan (or the related Mortgaged Property) or such REO Property,
as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property or REO Property or released to the related Mortgagor,
in any case, in accordance with the Servicing Standard.
"Interest Accrual Basis": The basis on which interest accrues
in respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II
Regular Interest, any Class S REMIC III Regular Interest or any Class of Regular
Interest Certificates, consisting of one of the following: (i) a 30/360 Basis;
or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class S REMIC III Regular Interest
or any Class of Regular Interest Certificates, for any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
"Interest Reserve Account": The segregated account created and
maintained by the Servicer pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "GE Capital Loan Services, Inc. [or
the name of any successor Servicer], as Servicer, in trust for the registered
holders of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1".
"Interest Reserve Amount": With respect to each Interest
Reserve Loan and each Distribution Date that occurs during February of each year
and during January of each year that is not a leap year, an amount equal to
one-day's interest at the related Mortgage Rate on the related Stated Principal
Balance as of the Due Date in the month in which such Distribution Date occurs
(but prior to the application of any amounts due on such Due Date), to the
extent that a Monthly Payment is remitted in respect thereof for such Due Date
on the related Servicer Remittance Date or a P&I Advance is made in respect
thereof for such Due Date on the related P&I Advance Date.
"Interest Reserve Loan": Any Actual/360 Mortgage Loan.
"Interested Person": Any party hereto, either Seller, any
Column Third Party Originator, any Certificateholder, or any Affiliate of any
such Person.
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"Investment Account": As defined in Section 3.06(a).
"Investment Company Act": The Investment Company Act of 1940,
as amended.
"IRS": The Internal Revenue Service or any successor.
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"ITLA": ITLA Funding Corporation or its successor in
interest.
"Late Collections": With respect to any Mortgage Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of such
Mortgage Loan due or deemed due on a Due Date in a previous Collection Period,
or on a Due Date coinciding with or preceding the Cut-off Date, and not
previously recovered. With respect to any REO Mortgage Loan, all amounts
received in connection with the related REO Property during any Collection
Period, whether as Insurance Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the predecessor Mortgage Loan or late collections
of the principal and/or interest portions of an Assumed Monthly Payment in
respect of such REO Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period and not previously recovered.
"Latest Possible Maturity Date": With respect to any REMIC I
Regular Interest, REMIC II Regular Interest, Class S REMIC III Regular Interest
or Class of Sequential Pay Certificates, the Distribution Date designated as the
"latest possible maturity date" thereof solely for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii).
"Letter of Credit": With respect to any Mortgage Loan, any
third-party letter of credit delivered by or at the direction of the Mortgagor
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased or replaced by a Column Third Party Originator
pursuant to the related Column Third Party Originator Agreement or by a Seller
pursuant to the related Mortgage Loan Purchase and Sale Agreement, in each case
as contemplated by Section 2.03; or (iv) such Mortgage Loan is purchased by the
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder pursuant to Section 9.01. With respect to any REO Property
(and the related REO Mortgage Loan), any of the following events: (i) a Final
Recovery Determination is made with respect to such REO Property; or (ii) such
REO Property is purchased by the Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or
3.18
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(including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property that is purchased by the Servicer, the Special Servicer or a
Majority Controlling Class Certificateholder pursuant to Section 3.18 or Section
9.01 or that is repurchased or replaced by a Column Third Party Originator
pursuant to the related Column Third Party Originator Agreement or by a Seller
pursuant to the related Mortgage Loan Purchase and Sale Agreement), the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.00%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation of
a Mortgaged Property or other collateral constituting security for a defaulted
Mortgage Loan, through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related Mortgage Note and Mortgage; (iii) the realization upon
any deficiency judgment obtained against a Mortgagor; (iv) the purchase of a
Defaulted Mortgage Loan by the Majority Controlling Class Certificateholder
pursuant to Section 3.18(b) or by the Servicer or the Special Servicer pursuant
to Section 3.18(c) or any other sale thereof pursuant to Section 3.18(d); (v)
the repurchase of a Mortgage Loan by a Column Third Party Originator pursuant to
the related Column Third Party Originator Agreement or by a Seller pursuant to
the related Mortgage Loan Purchase and Sale Agreement; (vi) the substitution of
one or more Replacement Mortgage Loans for a Deleted Mortgage Loan by a Column
Third Party Originator pursuant to the related Column Third Party Originator
Agreement or by a Seller pursuant to the related Mortgage Loan Purchase and Sale
Agreement (such cash amounts being any Substitution Shortfall Amounts); or (vii)
the purchase of a Mortgage Loan or REO Property by the Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder pursuant to Section
9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as
of any date of determination, and without regard to the cross-collateralization
in the case of any Cross-Collateralized Mortgage Loan, a fraction, expressed as
a percentage, the numerator of which is the then current principal amount of
such Mortgage Loan, and the denominator of which is the Appraised Value of the
related Mortgaged Property.
"Majority Certificateholder": With respect to any specified
Class or Classes of Certificates, as of any date of determination, any single
Holder of Certificates of such Class or Classes, as the case may be, entitled to
more than 50% of the Voting Rights allocated to such Class or Classes, as the
case may be.
"Majority Controlling Class Certificateholder": As of any date
of determination, the Majority Certificateholder of the Class of Sequential Pay
Certificates that constitutes the Controlling Class as of such date of
determination.
"Maturity Assumptions": Collectively, the assumptions
identified as the "Modeling Assumptions" in the Prospectus Supplement.
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"Memorandum": The final Private Placement Memorandum dated
June 18, 1998, relating to the Non-Registered Certificates delivered by the
Depositor to the Underwriter as of the Closing Date.
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing
current Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount not less than the fair market value
(as is) of the property to be released, as determined by an Appraisal
delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely);
or
(C) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment": With respect to any Mortgage Loan as of any
Due Date, the scheduled monthly payment (or, in the case of an ARD Loan after
its Anticipated Repayment Date, the minimum required monthly payment) of
principal and/or interest on such Mortgage Loan, including any Balloon Payment,
that is actually payable by the related Mortgagor from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20); provided that the Monthly
Payment due in respect of any ARD Loan after its Anticipated Repayment Date
shall not include Additional Interest.
"Mortgage": A mortgage, deed of trust, deed to secure debt or
similar document that secures a Mortgage Note and creates a lien on a Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) the original executed Mortgage Note, endorsed "Pay to
the order of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1, without
recourse";
(ii) an original or a copy of the Mortgage and of any
intervening assignments thereof that precede the
assignment referred to in clause (iv) of this
definition, in each case (unless such document has
not yet been returned from the applicable recording
office) with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the
Mortgage) and of any intervening assignments thereof
that precede the assignment referred to in clause (v)
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document has not yet been returned from the
applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in
favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1, in
recordable form;
(v) an original executed assignment of any related
Assignment of Leases (if such item is a document
separate from the Mortgage), in favor of Norwest Bank
Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1998-CG1, in recordable form;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution
agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been
modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy of lender's
title insurance issued on the date of the origination
of such Mortgage Loan;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in
favor of any assignee prior to the Trustee (but only
to the extent the related Seller had possession of
such UCC Financing Statements prior to the Closing
Date) and, if there is an effective UCC Financing
Statement in favor of the related Seller or, if
applicable, the related Column Third Party Originator
on record with the applicable public office for UCC
Financing Statements, an original UCC-2 or UCC-3, as
appropriate, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered
holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-CG1;
(ix) any environmental indemnity agreement, power of
attorney, guaranty, property management agreement,
Ground Lease, Ground Sub-Lease, intercreditor
agreement, cash management agreement and lock-box
agreement, relating to such Mortgage Loan;
(x) any original documents (including any security
agreements and any Letters of Credit and related
letter of credit reimbursement agreements) relating
to, evidencing or constituting Additional Collateral;
and
(xi) insurance certificates relating to hazard insurance
policies maintained by the Mortgagor with respect to
the related Mortgaged Property;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received.
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"Mortgage Loan": Each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note, Mortgage
and other security documents contained in the related Mortgage File.
"Mortgage Loan Purchase and Sale Agreements": The Column
Mortgage Loan Purchase and Sale Agreement and the GECA Mortgage Loan Purchase
and Sale Agreement.
"Mortgage Loan Schedule": Together, the two lists of Mortgage
Loans attached hereto as Exhibit B-1A and Exhibit B-1B, respectively, as such
lists may be amended from time to time in accordance with this Agreement. Such
lists shall set forth the following information with respect to each Mortgage
Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip
code) of the related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off
Date Balance;
(iv) the amount of the Monthly Payment due on the first
Due Date following the Closing Date;
(v) the Mortgage Rate;
(vi) the (A) original and remaining term to stated
maturity and (B) Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the original
and remaining amortization term;
(viii) the related Seller, whether the Mortgage Loan is a
Column Third Party Mortgage Loan and, if so, the
related Column Third Party Originator;
(ix) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, the other Mortgage Loans
contained in the related Cross-Collateralized Group;
(x) whether the Mortgage Loan is an ARD Loan and, if so,
the Anticipated Repayment Date;
(xi) whether such Mortgage Loan provides for defeasance;
(xii) whether the Mortgage Loan is secured by a fee simple
interest in the Mortgaged Property; by the
Mortgagor's leasehold interest, and a fee simple
interest, in the Mortgaged Property; or solely by a
leasehold interest in the Mortgaged Property; and
(xiii) the Interest Accrual Basis.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
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"Mortgage Pool": Collectively, all of the Mortgage Loans and
any successor REO Mortgage Loans as of any particular date of determination.
"Mortgage Rate": With respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law, as such rate
may be modified in accordance with Section 3.20 or in connection with a
bankruptcy, insolvency or similar proceeding involving the related Mortgagor. In
the case of each of the ARD Loans, the related Mortgage Rate will be subject to
increase in accordance with the related Mortgage Note if the particular Mortgage
Loan is not paid in full by its Anticipated Repayment Date. Subject to
modification in accordance with Section 3.20 or in connection with a bankruptcy,
insolvency or similar proceeding involving the related Mortgagor, the Mortgage
Rate for each Mortgage Loan shall otherwise be fixed.
"Mortgaged Property": The real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage and
constituting collateral for a Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount remitted by the Servicer for deposit
into the Distribution Account for such Distribution Date pursuant to Section
3.19(a) in connection with such Prepayment Interest Shortfalls.
"Net Default Charges": With respect to any Mortgage Loan, any
Default Charges actually collected from the related Mortgagor or out of other
collections thereon (based on the allocations specified in Section 1.03), net of
any Advance Interest accrued on Advances made in respect of such Mortgage Loan
and reimbursable from such Default Charges in accordance with this Agreement
and, solely with respect to Default Interest, further net of any portion of such
Default Interest allocable to pay the Special Servicer any Liquidation Fee or
Workout Fee in respect of such Mortgage Loan
"Net Investment Earnings": With respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
held in such Investment Account, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06 (other than losses of what would otherwise
have constituted interest or other income earned on such funds).
"Net Investment Loss": With respect to any Investment Account
for any Collection Period, the amount by which the aggregate of all losses, if
any, incurred during such Collection Period in connection with the investment of
funds held in such Investment Account in accordance with Section 3.06 (other
than losses of what would otherwise have constituted interest or other income
earned on such funds), exceeds the aggregate of all interest and other income
realized during such Collection Period on such funds.
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"Net Mortgage Rate": With respect to any Mortgage Loan (and
any successor REO Mortgage Loan), as of any date of determination, the then
related Mortgage Rate, minus the sum of (i) the Servicing Fee Rate, (ii) the
Trustee Fee Rate and (iii) in the case of an ARD Loan after its Anticipated
Repayment Date, the related Additional Interest Rate.
"Net Operating Income": With respect to any Mortgaged
Property, the net operating income derived from such Mortgaged Property for any
specified period, calculated in accordance with Exhibit K.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer with respect to Specially Serviced Mortgaged Loans and REO Mortgage
Loans, and by the Servicer with respect to all other Mortgage Loans,
substantially containing the information described in Exhibit E-7 attached
hereto, presenting the computations made in accordance with the methodology
described in such Exhibit to "normalize" the full year net operating income and
debt service coverage numbers used in the other reports required by this
Agreement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Mortgage Loan that, as determined by the Servicer or, if applicable, the
Trustee or any Fiscal Agent, in its reasonable, good faith judgment, will not be
ultimately recoverable from late payments, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Mortgage Loan.
"Nonrecoverable Servicing Advance": As evidenced by the
Officer's Certificate and supporting documentation contemplated by Section
3.11(h), any Servicing Advance previously made or to be made in respect of a
Mortgage Loan or REO Property that, as determined by the Servicer, the Special
Servicer or, if applicable, the Trustee or any Fiscal Agent, in its reasonable,
good faith judgment, will not be ultimately recoverable from late payments,
Insurance Proceeds, Liquidation Proceeds or any other recovery on or in respect
of such Mortgage Loan or REO Property.
"Non-Registered Certificate": Any Certificate that has not
been registered under the Securities Act. As of the Closing Date, the Class B-4,
Class B-5, Class B-6, Class B-7, Class C, Class D-1, Class D-2, Class R-I, Class
R-II and Class R-III Certificates will constitute Non-Registered Certificates.
"Non-United States Person": Any Person other than a United
States Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer of the Servicer or the Special Servicer or a Responsible Officer of the
Trustee or any Fiscal Agent, as the case may be.
"Operating Statement Analysis": As defined in Section 3.12(b).
"Opinion of Counsel": A written opinion of counsel (which
counsel, in the case of any such opinion of counsel relating to the taxation of
the Trust Fund or any portion thereof or the status of any of REMIC I, REMIC II
or REMIC III as a REMIC or either of Grantor Trust D-1 or Grantor Trust D-2 as a
Grantor Trust for taxation purposes, shall be Independent of the Depositor, each
Seller, the Servicer, the
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Special Servicer, the Trustee, any Fiscal Agent and the REMIC Administrator, but
which may act as counsel to such Person) acceptable to and delivered to the
addressee(s) thereof and which Opinion of Counsel, except as provided herein,
shall not be at the expense of the Trustee or the REMIC Administrator.
"Original Mortgage Loans": Collectively, those Mortgage Loans
identified on the Mortgage Loan Schedule as being included in the Trust Fund as
of the Closing Date.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Mortgage Loan,
any advance made by the Servicer, the Trustee or any Fiscal Agent pursuant to
Section 4.03.
"P&I Advance Date": The Business Day preceding each
Distribution Date.
"Pass-Through Rate": As defined in Section 2.14(d).
"Percentage Interest": With respect to any Regular Interest
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Class Principal Balance or Class Notional Amount, as the case may
be, of the relevant Class as of the Closing Date. With respect to a Grantor
Trust Certificate or Residual Interest Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Permitted Investments": Any one or more of the following
obligations or securities:
(i) direct obligations of, or obligations fully
guaranteed as to timely payment of principal and
interest by, the United States or any agency or
instrumentality thereof, provided that each such
obligation is backed by the full faith and credit of
the United States;
(ii) repurchase agreements on obligations specified in
clause (i), provided that the short-term unsecured
debt obligations of the party agreeing to repurchase
such obligations are at the time of investment rated
in the highest short-term debt rating category of
each of S&P and Fitch (if rated by Fitch) (or, in the
case of either Rating Agency, have such lower rating
as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, as
confirmed in writing to the Trustee by such Rating
Agency);
(iii) federal funds, uncertificated certificates of
deposit, time deposits and bankers' acceptances of
any bank or trust company organized under the laws of
the United States or any state thereof, provided that
the short-term unsecured debt obligations of such
bank or trust company are at the time of investment
rated in the highest short-term debt rating category
of each of S&P and Fitch (if rated by Fitch) (or, in
the case
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of either Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, as
confirmed in writing to the Trustee by such Rating
Agency);
(iv) commercial paper of any corporation incorporated
under the laws of the United States or any state
thereof (or of any corporation not so incorporated,
provided that the commercial paper is United States
Dollar denominated and amounts payable thereunder are
not subject to any withholding imposed by any
non-United States jurisdiction), provided that such
commercial paper is rated in the highest short-term
debt rating category of each of S&P and Fitch (if
rated by Fitch) (or, in the case of either Rating
Agency, has such lower rating as will not result in
an Adverse Rating Event with respect to any Class of
Rated Certificates, as confirmed in writing to the
Trustee by such Rating Agency);
(v) units of money market funds which maintain a constant
net asset value, provided that such units of money
market funds are rated in the highest applicable
rating category of each of each of S&P and Fitch (if
rated by Fitch) (or, in the case of either Rating
Agency, have such lower rating as will not result in
an Adverse Rating Event with respect to any Class of
Rated Certificates, as confirmed in writing to the
Trustee by such Rating Agency); or
(vi) any other obligation or security that is acceptable
to the Rating Agencies and will not result in an
Adverse Rating Event with respect to any Class of
Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than 30 days and (Z) except in the case of a
Permitted Investment described in clause (v) above, a fixed interest rate or an
interest rate that is tied to a single interest rate index plus a single fixed
spread; and provided, further, that each investment described hereunder must be
a "cash flow investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee": Any Transferee of a Residual Interest
Certificate other than either a Disqualified Organization or a Non-United States
Person.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"Phase I Environmental Assessment": A "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of Part II of the FNMA
Multifamily Guide, as amended from time to time.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Interest Certificateholder": As to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the Class of Residual Interest Certificates
constituting the sole class of "residual interests" in respect of such REMIC
Pool.
"Prepayment Assumption": For purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests,
the Class S REMIC III Regular Interests and the Certificates for federal income
tax purposes, the assumption that each ARD Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Mortgage Loan is otherwise voluntarily
prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made after
its Due Date in any Collection Period, any payment of interest (net of related
Servicing Fees) actually collected from the related Mortgagor and intended to
cover the period from and after such Due Date to, but not including, the date of
prepayment (exclusive, however, of any related Prepayment Premium or Yield
Maintenance Premium that may have been collected and, in the case of an ARD Loan
after its Anticipated Repayment Date, of any Additional Interest).
"Prepayment Interest Shortfall": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made prior to
its Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor (without regard to any Prepayment Premium
or Yield Maintenance Premium that may have been collected), that would have
accrued at a rate per annum equal to the sum of the related Net Mortgage Rate
plus the Trustee Fee Rate on the amount of such Principal Prepayment during the
period from the date of prepayment to, but not including, such Due Date.
"Prepayment Premium": With respect to any Mortgage Loan, any
premium, penalty or fee paid or payable, as the context requires, by a Mortgagor
in connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan or any successor REO Mortgage Loan, to the extent
such premium, penalty or fee is expressed as a percentage of the principal
amount being prepaid or as a specified amount.
"Primary Servicing Office": The office of the Servicer or the
Special Servicer, as the context may require, that is primarily responsible for
such party's servicing obligations hereunder.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate," then the
Trustee, in its sole discretion, shall select an equivalent publication that
publishes such "prime rate;" and if such "prime rate" is no longer generally
published or is limited, regulated or administered by a governmental or quasi-
governmental body, then the Trustee shall select a comparable interest rate
index. In either case, such selection shall be made by the Trustee in its sole
discretion and the Trustee shall notify the Servicer and the Special Servicer in
writing of its selection.
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"Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other
than Principal Prepayments) received on the Mortgage Loans
during the related Collection Period, in each case net of any
portion of the particular payment that represents a Late
Collection of principal for which a P&I Advance was previously
made for a prior Distribution Date or that represents the
principal portion of a Monthly Payment due on or before the
Cut-off Date or on a Due Date subsequent to the related
Collection Period;
(b) the aggregate of the principal portions of all
Monthly Payments due in respect of the Mortgage Loans for
their respective Due Dates occurring during the related
Collection Period that were received prior to the related
Collection Period;
(c) the aggregate of all Principal Prepayments
received on the Mortgage Loans during the related Collection
Period;
(d) the aggregate of all Liquidation Proceeds and
Insurance Proceeds received on the Mortgage Loans during the
related Collection Period that were identified and applied by
the Servicer as recoveries of principal of such Mortgage Loans
in accordance with Section 1.03, in each case net of any
portion of such proceeds that represents a Late Collection of
principal due on or before the Cut-off Date or for which a P&I
Advance was previously made for a prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds,
Insurance Proceeds and REO Revenues received in respect of any
REO Properties during the related Collection Period that were
identified and applied by the Servicer as recoveries of
principal of the related REO Mortgage Loans in accordance with
Section 1.03, in each case net of any portion of such proceeds
and/or revenues that represents a Late Collection of principal
due on or before the Cut-off Date or for which a P&I Advance
was previously made for a prior Distribution Date; and
(f) the aggregate of the principal portions of all
P&I Advances made in respect of the Mortgage Loans and any REO
Mortgage Loans with respect to such Distribution Date.
"Principal Prepayment": Any voluntary payment of principal
made by the Mortgagor on a Mortgage Loan that is received in advance of its
scheduled Due Date, that is not accompanied by an amount of interest (without
regard to any Prepayment Premium, Yield Maintenance Premium and/or Additional
Interest that may have been collected) representing scheduled interest due on
any date or dates in any month or months subsequent to the month of prepayment
and that is not related to the special servicing of such Mortgage Loan.
"Proposed Plan": As defined in Section 3.17(a).
"Prospectus": The Base Prospectus and the Prospectus
Supplement, together.
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"Prospectus Supplement": That certain prospectus supplement
dated June 18, 1998, relating to the Registered Certificates, that is a
supplement to the Base Prospectus.
"Purchase Price": With respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Mortgage Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Mortgage Loan) at the related Mortgage Rate to, but not including,
the Due Date occurring in the Collection Period during which the applicable
purchase or repurchase occurs, (c) all related unreimbursed Servicing Advances,
(d) solely in the case of a purchase by a Column Third Party Originator pursuant
to the related Column Third Party Originator Agreement or by a Seller pursuant
to the related Mortgage Loan Purchase and Sale Agreement, all accrued and unpaid
Advance Interest in respect of related Advances, and (e) to the extent not
otherwise included in the amount described in the preceding clause (c), any
costs and expenses incurred by the Servicer (on behalf of the Trust) in
enforcing the obligation of such Person to purchase such Mortgage Loan.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Institutional Buyer": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In the case of any
substitution for a Deleted Mortgage Loan as contemplated by Section 2.03, a
mortgage loan which, on the date of substitution, (i) has a principal balance,
after deduction of the principal portion of the Monthly Payment due in the month
of substitution, not in excess of the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) is accruing interest at a fixed rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has the same Due Date as the
Deleted Mortgage Loan; (iv) is accruing interest on the same Interest Accrual
Basis as the Deleted Mortgage Loan; (v) has a remaining term to stated maturity
not greater than, and not more than two years less than, that of the Deleted
Mortgage Loan and, in any event, has a Stated Maturity Date not later than two
years prior to the Rated Final Distribution Date; (vi) has a then current
Loan-to-Value Ratio not higher than, and a then current Debt Service Coverage
Ratio not lower than, the Loan-to-Value Ratio and Debt Service Coverage Ratio,
respectively, of the Deleted Mortgage Loan as of the Closing Date; (vii) will
comply with, as of the date of substitution, all of the representations and
warranties relating to Mortgage Loans set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement and, in the case of a Column
Third Party Mortgage Loan, the related Column Third Party Originator Agreement,
or will comply with (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, all of the
representations relating to the Deleted Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement and, in the
case of a Column Third Party Mortgage Loan, the related Column Third Party
Originator Agreement; (viii) has a Phase I Environmental Assessment relating to
the related Mortgaged Property in its Servicing File, which Phase I
Environmental Assessment will evidence that there is no material adverse
environmental condition or circumstance at the related Mortgaged Property for
which further remedial action may be required under applicable law; and (ix)
constitutes a "qualified
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replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided, however, that if more than one mortgage loan is to be substituted for
any Deleted Mortgage Loan, then all such proposed Replacement Mortgage Loans
shall, in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (ix) of this
definition; and provided, further, that no mortgage loan shall be substituted
for a Deleted Mortgage Loan unless (x) such prospective Replacement Mortgage
Loan shall be acceptable to the Controlling Class Representative (or, if there
is no Controlling Class Representative then serving, to the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class), in its (or their) sole discretion, and (y) each Rating
Agency shall have confirmed in writing to the Trustee that such substitution
will not in and of itself result in an Adverse Rating Event with respect to any
Class of Rated Certificates (such written confirmation to be obtained by the
related Seller or the related Column Third Party Originator effecting the
substitution). It is understood and agreed that the Controlling Class
Representative (or, if no Controlling Class Representative is then serving, the
Holders of Certificates representing a majority of the Voting Rights assigned to
the Controlling Class) could find a prospective Replacement Mortgage Loan
unacceptable for any reason or no reason whatsoever.
"Rated Certificate": Any of the Certificates to which a rating
has been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": The Distribution Date in June
2031.
"Rating Agency": Each of S&P and Fitch.
"Realized Loss": With respect to: (1) each defaulted Mortgage
Loan as to which a Final Recovery Determination has been made, or with respect
to any successor REO Mortgage Loan as to which a Final Recovery Determination
has been made as to the related REO Property, an amount (not less than zero)
equal to (a) the unpaid principal balance of such Mortgage Loan or REO Mortgage
Loan, as the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (b) without taking into
account the amount described in subclause (1)(c) of this definition, all accrued
but unpaid interest on such Mortgage Loan or REO Mortgage Loan, as the case may
be, at the related Mortgage Rate to, but not including, the related Due Date in
the Collection Period in which the Final Recovery Determination was made
(exclusive, however, in the case of an ARD Loan after its Anticipated Repayment
Date, of Additional Interest), minus (c) all payments and proceeds, if any,
received in respect of such Mortgage Loan or REO Mortgage Loan, as the case may
be, during the Collection Period in which such Final Recovery Determination was
made (net of any related Servicing Advances reimbursed therefrom and any related
Liquidation Expenses paid therefrom); (2) each defaulted Mortgage Loan as to
which any portion of the principal or past due interest payable thereunder was
cancelled in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Servicer or the Special Servicer pursuant to Section
3.20, the amount of such principal or past due interest (other than any Default
Interest and, in the case of an ARD Loan after its Anticipated Repayment Date,
Additional Interest) so cancelled; and (3) each defaulted Mortgage Loan as to
which the Mortgage Rate thereon has been permanently reduced and not recaptured
for any period in connection with a bankruptcy or similar proceeding involving
the related Mortgagor or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the Servicer or the Special Servicer pursuant to
Section 3.20, the amount of any consequent reduction in the interest portion of
each successive Monthly Payment due thereon (each such Realized Loss to be
deemed to have been incurred on the Due Date for each affected Monthly Payment).
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"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Certificate that has been
registered under the Securities Act. As of the Closing Date, the Class S, Class
A-1A, Class A-1B, Class A-1C, Class A-2, Class A-3, Class A-4, Class B-1, Class
B-2 and Class B-3 Certificates constitute Registered Certificates.
"Regular Interest Certificate": Any of the Certificates
designated as such in Section 2.09.
"Reimbursement Rate": The rate per annum applicable to the
accrual of Advance Interest, which rate per annum is equal to the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Administrator": Norwest Bank Minnesota, National
Association or its successor in interest, in its capacity as REMIC administrator
hereunder, or any successor REMIC administrator appointed as herein provided.
"REMIC Sub-Account": A sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and REMIC I but not an asset of Grantor Trust I or
Grantor Trust II.
"REMIC I": The segregated pool of assets designated as such in
Section 2.10(a)
"REMIC I Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and,
in each such case, designated as a "regular interest" in REMIC I. The REMIC I
Regular Interests have the designations and terms provided for in Section 2.10.
"REMIC I Remittance Rate": As defined in Section 2.10(f).
"REMIC II": The segregated pool of assets designated as such
in Section 2.12(a).
"REMIC II Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
and, in each such case, designated as a "regular interest" in REMIC II. The
REMIC II Regular Interests have the designations and terms provided for in
Section 2.12.
"REMIC II Remittance Rate": As defined in Section 2.12(f).
"REMIC III": The segregated pool of assets designated as such
in Section 2.14(a).
"REMIC III Certificate": Any of the Certificates designated as
such in Section 2.09.
"REMIC Pool": Any of REMIC I, REMIC II and REMIC III.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1
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of the Code, and related provisions, and proposed, temporary and final Treasury
regulations and any published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Midland Loan Services, Inc.[ or the name of any successor Special
Servicer], as Special Servicer, in trust for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass- Through Certificates,
Series 1998-CG1".
"REO Acquisition": The acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of any REO
Property pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Mortgage Loan": The mortgage loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Mortgage
Loan shall be deemed to provide for monthly payments of principal and/or
interest equal to its Assumed Monthly Payment and otherwise to have the same
terms and conditions as its predecessor Mortgage Loan (such terms and conditions
to be applied without regard to the default on such predecessor Mortgage Loan or
the Trust's acquisition of the subject REO Property). Each REO Mortgage Loan
shall be deemed to have an initial unpaid principal balance and Stated Principal
Balance equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than any Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Mortgage Loan. In addition, all amounts payable or reimbursable to the
Servicer, the Special Servicer, the Trustee or any Fiscal Agent in respect of
the predecessor Mortgage Loan as of the date of the related REO Acquisition,
including any unpaid or unreimbursed Servicing Fees, Special Servicing Fees and
Advances (together with any related unpaid Advance Interest), shall continue to
be payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to the Servicer, the Special Servicer, the Trustee or any Fiscal Agent,
as the case may be, in respect of an REO Mortgage Loan.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trust for the benefit of the Certificateholders
through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
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"REO Status Report": A report containing substantially the
information described in Exhibit E-9 attached hereto, including, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date immediately preceding the preparation of such
report, among other things, (i) the Acquisition Date of such REO Property, (ii)
the amount of income collected with respect to such REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
related Collection Period and (iii) the value of the REO Property based on the
most recent appraisal or other valuation thereof available to the Special
Servicer as of such Determination Date (including any valuation prepared
internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Replacement Mortgage Loan": Any mortgage loan that is
substituted by a Seller or a Column Third Party Originator for a Deleted
Mortgage Loan as contemplated by Section 2.03.
"Request for Release": A request signed by a Servicing Officer
of, as applicable, the Servicer in the form of Exhibit D-1 attached hereto or
the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(c).
"Reserve Account": Any of the accounts established and
maintained pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held in escrow by or on behalf
of the mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; or (iii) amounts to be applied as a Principal Prepayment on such
Mortgage Loan or held as Additional Collateral in the event that certain leasing
or other economic criteria in respect of the related Mortgaged Property are not
met.
"Residual Interest Certificate": Any of the Certificates
designated as such in Section 2.09.
"Responsible Officer": When used with respect to the Trustee,
the President, the Treasurer, the Secretary, any Vice President, any Assistant
Vice President, any Trust Officer, any Assistant Secretary or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and having direct responsibility for the
administration of this Agreement. When used with respect to any Fiscal Agent or
any Certificate Registrar (other than the Trustee), any officer or assistant
officer thereof.
"Restricted Servicer Reports": Each of the Watch List, the
Operating Statement Analysis, the NOI Adjustment Worksheet, the Comparative
Financial Status Report and the CSSA Property File Report.
"S&P": Standard & Poor's Ratings Services, a Division of the
McGraw-Hill Companies, Inc., or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the other parties hereto, and specific ratings of Standard & Poor's
Ratings Services, a Division of the McGraw-Hill Companies, Inc.,
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herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated. References herein to "applicable rating category" (other
than any such references to "highest applicable rating category") shall, in the
case of S&P, be deemed to refer to such applicable rating category of S&P,
without regard to any plus or minus or other comparable rating qualification.
"Securities Act": The Securities Act of 1933, as amended.
"Seller": Either of Column or GECA.
"Senior Certificate": Any of the Certificates designated as
such in Section 2.09.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate of the Class Principal Balances of
the Class A-1A Certificates and the Class A-1B Certificates outstanding
immediately prior thereto equals or exceeds the sum of (a) the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date, plus (b) the lesser of (i) the Principal
Distribution Amount for such Distribution Date and (ii) the portion of the
Available Distribution Amount for such Distribution Date that will remain after
the distributions of Distributable Certificate Interest to be made on the Senior
Certificates on such Distribution Date have been so made.
"Sequential Pay Certificate": Any of the Certificates
designated as such in Section 2.09.
"Servicer": GE Capital Loan Services, Inc. or its successor in
interest, in its capacity as servicer hereunder, or any successor servicer
appointed as herein provided.
"Servicer Remittance Amount": With respect to any Servicer
Remittance Date, an amount equal to (a) all amounts on deposit in the Collection
Account as of the commencement of business on such Servicer Remittance Date, net
of (b) any portion of the amounts described in clause (a) of this definition
that represents one or more of the following: (i) collected Monthly Payments
that are due on a Due Date following the end of the related Collection Period,
(ii) any payments of principal (including Principal Prepayments) and interest
(including, without limitation, Additional Interest), Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums and/or Yield Maintenance Premiums received after
the end of the related Collection Period, (iv) any amounts payable or
reimbursable to any Person from the Collection Account pursuant to clauses (ii)
through (xix) of Section 3.05(a), and (v) any amounts deposited in the
Collection Account in error; provided that the Servicer Remittance Amount for
the Servicer Remittance Date that occurs in the same calendar month as the
anticipated Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Servicer Remittance Date": The Business Day preceding each
Distribution Date.
"Servicing Account": Any of the accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses paid or to be paid, as the context requires,
out of its own funds, by the Servicer or the Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection with the servicing of
a Mortgage Loan after a default, delinquency or other unanticipated event, or in
connection with the administration of
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any REO Property, including (1) any such costs and expenses associated with (a)
compliance with the obligations of the Servicer and/or the Special Servicer set
forth in Sections 2.02(e), 2.03 (b), 2.03(c) , 3.03(c) and 3.09, (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, including the cost of any "force placed" insurance policy purchased by
the Servicer or the Special Servicer to the extent such cost is allocable to a
particular Mortgaged Property that the Servicer or the Special Servicer is
required to cause to be insured pursuant to Section 3.07(a), (c) obtaining any
Liquidation Proceeds or Insurance Proceeds in respect of any such Mortgage Loan
or any REO Property, (d) any enforcement or judicial proceedings with respect to
a Mortgaged Property, including foreclosures and similar proceedings, (e) the
operation, management, maintenance and liquidation of any REO Property, (f)
obtaining any Appraisal required to be obtained hereunder, and (g) UCC filings
that are not reimbursed by the related Mortgagor, (2) reasonable and direct
out-of-pocket travel expenses incurred by the Special Servicer in connection
with performing inspections pursuant to Section 3.12(a), (3) the cost of any
Opinion of Counsel expressly required to be obtained hereunder to the extent
that a Mortgagor is required under the terms of the related Mortgage Loan to pay
the costs thereof and fails to do so, and (4) any other expenditure which is
expressly designated as a Servicing Advance herein; provided that
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Servicer or the Special Servicer, such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses and similar internal costs and expenses, or costs incurred
by either such party in connection with its purchase of any Mortgage Loan or REO
Property pursuant to any provision of this Agreement.
"Servicing Fee": With respect to each Mortgage Loan and REO
Mortgage Loan, the fee designated as such and payable to the Servicer pursuant
to Section 3.11(a).
"Servicing Fee Rate": With respect to each Mortgage Loan and
REO Mortgage Loan, 0.057% per annum.
"Servicing File": Any documents (other than documents required
to be part of the related Mortgage File) in the possession of the Servicer or
the Special Servicer and relating to the origination and servicing of any
Mortgage Loan or the administration of any REO Property.
"Servicing Officer": Any officer or employee of the Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time by
the Servicer or the Special Servicer, as applicable.
"Servicing Return Date": With respect to any Corrected
Mortgage Loan, the date that servicing thereof is returned by the Special
Servicer to the Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to the Servicer or the
Special Servicer, to service and administer the Mortgage Loans and REO
Properties for which it is responsible hereunder: (a) with the higher of (i) the
same care, skill, prudence and diligence with which the Servicer or the Special
Servicer, as the case may be, generally services and administers comparable
mortgage loans and REO properties for other third parties pursuant to agreements
similar to this Agreement, giving due consideration to customary and usual
standards of practice of prudent institutional commercial mortgage lenders and
loan servicers servicing and administering their own mortgage loans and REO
properties, and (ii) the same care, skill, prudence and diligence with which the
Servicer or the Special Servicer, as the case may be, generally services and
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administers comparable mortgage loans and REO properties owned by it; (b) with a
view to the timely collection of all scheduled payments of principal and
interest under the Mortgage Loans, the full collection of all Prepayment
Premiums and Yield Maintenance Premiums that may become payable under the
Mortgage Loans and, if a Mortgage Loan comes into and continues in default and
no satisfactory arrangements can be made for the collection of the delinquent
payments (including payments of Prepayment Premiums and Yield Maintenance
Premiums), the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate); and (c)
without regard to: (i) any relationship that the Servicer (or any Affiliate
thereof) or the Special Servicer (or any Affiliate thereof), as the case may be,
may have with the related Mortgagor or with any other party to this Agreement;
(ii) the ownership of any Certificate by the Servicer (or any Affiliate thereof)
or the Special Servicer (or any Affiliate thereof), as the case may be; (iii)
any obligation of the Servicer or the Special Servicer, as the case may be, to
make Advances; (iv) the right of the Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, to receive
compensation for its services or reimbursement of costs hereunder generally or
with respect to any particular transaction, (v) any ownership by the Servicer
(or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof),
as the case may be, of any other mortgage loans or real property or of the right
to service or manage for others any other mortgage loans or real property; and
(vi) any obligation of the Servicer (or any Affiliate thereof), as a Seller, or
the Special Servicer (or any Affiliate thereof), if such Person is a Seller, to
pay any indemnity or cure any Document Defect or Breach with respect to, or to
repurchase or replace, any Mortgage Loan.
"Servicing Transfer Event": With respect to any Mortgage Loan,
the occurrence of any of the events described in clauses (a) through (i) of the
definition of "Specially Serviced Mortgage Loan".
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to
which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Balloon Payment, which failure continues, or the
Servicer determines, in its reasonable, good faith
judgment, will continue, unremedied for 30 days; or
(b) the related Mortgagor has failed to make when due any
Monthly Payment (other than a Balloon Payment) or any
other payment required under the related Mortgage
Note or the related Mortgage, which failure
continues, or the Servicer determines, in its
reasonable, good faith judgment, will continue,
unremedied for 60 days; or
(c) if the Servicer or any of its Affiliates then owns an
economic interest in the related Mortgagor, the
related Mortgagor has failed to make when due any
Monthly Payment, which failure continues unremedied
as of the P&I Advance Date for the Distribution Date
related to the Collection Period in which such
Monthly Payment was due; or
(d) the Servicer has determined, in its reasonable, good
faith judgment, that a default in making a Monthly
Payment (including a Balloon Payment) or any other
payment required under the related Mortgage Note or
the related Mortgage is likely to occur within 30
days and either (i) the related Mortgagor has
requested a material modification of the related
Mortgage Loan (other than a waiver of a "due-on-sale"
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clause permitted under Section 3.08 or the extension
of the related maturity date) or (ii) such default is
likely to remain unremedied for at least 60 days or,
in the case of a Balloon Payment, for at least 30
days; or
(e) the Servicer has determined, in its reasonable, good
faith judgment, that a default, other than as
described in clause (a) or (b) above, has occurred
that may materially impair the value of the related
Mortgaged Property as security for the Mortgage Loan,
which default has continued unremedied for the
applicable cure period under the terms of the
Mortgage Loan (or, if no cure period is specified,
for 30 days); or
(f) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary action against the related Mortgagor
under any present or future federal or state
bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the
related Mortgagor and such decree or order shall have
remained in force undischarged or unstayed for a
period of 60 days; or
(g) the related Mortgagor shall have consented to the
appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property;
or
(h) the related Mortgagor shall have admitted in writing
its inability to pay its debts generally as they
become due, filed a petition to take advantage of any
applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or
voluntarily suspended payment of its obligations; or
(i) the Servicer shall have received notice of the
commencement of foreclosure or similar proceedings
with respect to the related Mortgaged Property;
provided, however, that a Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property or, so long
as at such time no circumstance identified in clauses (a) through (i) above
exists that would cause the Mortgage Loan to continue to be characterized as a
Specially Serviced Mortgage Loan:
(w) with respect to the circumstances described in
clauses (a) , (b) and (c) above, when the related
Mortgagor has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage
Loan (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed
to by the Servicer or the Special Servicer pursuant
to Section 3.20);
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(x) with respect to the circumstances described in
clauses (d), (f), (g) and (h) above, when such
circumstances cease to exist in the reasonable, good
faith judgment of the Special Servicer;
(y) with respect to the circumstances described in clause
(e) above, when such default is cured; and
(z) with respect to the circumstances described in clause
(i) above, when such proceedings are terminated.
"Special Servicer": Midland Loan Services, Inc. or its
successor in interest, in its capacity as special servicer hereunder, or any
successor Special Servicer appointed as herein provided.
"Special Servicer Report": As defined in Section 4.02(c).
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, the fee designated as such
and payable to the Special Servicer pursuant to the first paragraph of Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"Startup Day": With respect to each REMIC Pool, the day
designated as such in Section 2.10(a) (in the case of REMIC I), Section 2.12(a)
(in the case of REMIC II) and Section 2.14(a) (in the case of REMIC III).
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due Date specified in the Mortgage Note (as in effect on the Closing Date or, in
the case of a Replacement Mortgage Loan, on the related date of substitution) on
which the last payment of principal is due and payable under the terms of the
Mortgage Note (as in effect on the Closing Date or, in the case of a Replacement
Mortgage Loan, on the related date of substitution), without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20 and, in the case of an ARD Loan, without regard to its
Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan
(and any successor REO Mortgage Loan), the Cut-off Date Balance of such Mortgage
Loan (or, in the case of any Replacement Mortgage Loan, the unpaid principal
balance thereof as of the related date of substitution, after application of all
payments of principal due thereon on or before such date, whether or not
received), as permanently reduced on each subsequent Distribution Date (to not
less than zero) by (i) that portion, if any, of the Principal Distribution
Amount for such Distribution Date allocable to such Mortgage Loan (or successor
REO Mortgage Loan), and (ii) the principal portion of any Realized Loss incurred
in respect of such Mortgage Loan (or successor REO Mortgage Loan) during the
related Collection Period. Notwithstanding the foregoing, if a Liquidation Event
occurs in respect of any Mortgage Loan or REO Property, then the "Stated
Principal Balance" of such Mortgage Loan or of the related REO Mortgage Loan, as
the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such Liquidation
Event occurred.
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"Subordinated Certificate": Any of the Certificates designated
as such in Section 2.09.
"Sub-Servicer": Any Person with which the Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": In connection with the
substitution of one or more Replacement Mortgage Loans for any Deleted Mortgage
Loan, the amount, if any, by which the Purchase Price for such Deleted Mortgage
Loan (calculated as if it were to be repurchased, instead of replaced, on the
relevant date of substitution), exceeds the initial Stated Principal Balance or
the initial aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s).
"Tax Matters Person": With respect to any REMIC Pool, the
Person designated as the "tax matters person" of such REMIC Pool in the manner
provided under Treasury regulation section 1.860F-4(d) and temporary Treasury
regulation section 301.6231(a)(7)-1T, which Person shall, pursuant to Section
10.01(b), be the Plurality Residual Interest Certificateholder in respect of the
related Class of Residual Interest Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holder of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each REMIC Pool due to its classification as a REMIC under the
REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the IRS under any applicable provisions of federal tax law or any other
governmental taxing authority under applicable state or local tax laws.
"Termination Price": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d).
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Treasury Rate": As defined in Section 4.01(b).
"Trust": The trust created hereby.
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"Trustee": Norwest Bank Minnesota, National Association or its
successor in interest, in its capacity as trustee hereunder, or any successor
trustee appointed as herein provided.
"Trustee Report": As defined in Section 4.02(a).
"Trustee's Fee": The fee designated as such and payable to the
Trustee pursuant to Section 8.05(a).
"Trustee's Fee Rate": 0.003% per annum.
"Trust Fund": Collectively, all of the assets of REMIC I,
REMIC II, REMIC III, Grantor Trust D-1 and Grantor Trust D-2.
"Trust Receipt": As defined in Section 2.01(d).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": The interest accrued from
time to time in respect of (i) any REMIC I Regular Interest, calculated in
accordance with Section 2.10(g); or (ii) any REMIC II Regular Interest,
calculated in accordance with Section 2.12(g).
"Uncertificated Distributable Certificate Interest": With
respect to any REMIC I Regular Interest, for any Distribution Date, an amount of
interest equal to all Uncertificated Accrued Interest in respect of such REMIC I
Regular Interest for the related Interest Accrual Period, reduced (to not less
than zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date, multiplied by (ii) a fraction, expressed as a
decimal, the numerator of which is the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for the related Interest Accrual
Period, and the denominator of which is the aggregate Uncertificated Accrued
Interest in respect of all the REMIC I Regular Interests for the related
Interest Accrual Period; and, with respect to any REMIC II Regular Interest, for
any Distribution Date, an amount of interest equal to all Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for the related Interest
Accrual Period, reduced (to not less than zero) by the product of (i) any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date, multiplied
by a fraction, expressed as a decimal, the numerator of which is the
Uncertificated Accrued Interest in respect of such REMIC II Regular Interest for
the related Interest Accrual Period, and the denominator of which is the
aggregate Uncertificated Accrued Interest in respect of all the REMIC II Regular
Interests for the related Interest Accrual Period.
"Uncertificated Principal Balance": As defined in Section
2.10(e) with respect to each REMIC I Regular Interest and in Section 2.12(e)
with respect to each REMIC II Regular Interest.
"Underwriter": Donaldson, Lufkin & Jenrette Securities
Corporation or its successor in interest.
"Union Capital": Union Capital Investments, LLC or its
successor in interest.
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"United States Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
"Unrestricted Servicer Reports": Each of the Delinquent Loan
Status Report, the Historical Loan Modification Report, the Historical Loan
Estimate Report and the REO Status Report.
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers.
"USPAP": The Uniform Standards of Professional Appraisal
Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99% of the Voting
Rights shall be allocated among all the Classes of Sequential Pay Certificates
in proportion to their respective Class Principal Balances, and 1.0% of the
Voting Rights shall be allocated to the Class S Certificates. Voting Rights
allocated to a particular Class of Certificates shall be allocated among such
Certificates in proportion to the respective Percentage Interests evidenced
thereby.
"Warranting Party": As defined in Section 2.03(a).
"Watch List": For any Determination Date, a report
(substantially in the form of Exhibit E-10) of all Mortgage Loans that
constitute one of the following types of Mortgage Loans as of such Determination
Date (the "Watch List"): (i) a Mortgage Loan that has a then current Debt
Service Coverage Ratio that is less than 1.10x; (ii) a Mortgage Loan as to which
any required inspection of the related Mortgaged Property conducted by the
Servicer indicates a problem that the Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property; (iii) a Mortgage Loan as to which the Servicer has actual
knowledge of material damage or waste at the related Mortgaged Property; (iv) a
Mortgage Loan as to which it has come to the Servicer's attention in the
performance of its duties under this Agreement (without any expansion of such
duties by reason thereof) that any tenant occupying 25% or more of the space in
the related Mortgaged Property (A) has vacated such space (without being
replaced by a comparable tenant and lease) or (B) has declared bankruptcy; (v) a
Mortgage Loan that is at least 30 days delinquent in payment; and (vi) a
Mortgage Loan that is within 60 days of maturity. No later than one Business Day
after each Determination Date, the Special Servicer shall provide the Servicer
with all information in its possession regarding the Specially Serviced Mortgage
Loans relevant to the preparation of the Watch List.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan, 1.00%.
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"Yield Maintenance Premium": With respect to any Mortgage
Loan, any premium, penalty or fee paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment on, or other early
collection of principal of, a Mortgage Loan, other than any Prepayment Premium.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as
the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to
a document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to
a Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto",
"hereby" and other words of similar import refer to this Agreement as a
whole and not to any particular provision;
(vi) "or" is not exclusive; and
(vii) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the
Mortgage Pool.
(a) All amounts collected in respect of any
Cross-Collateralized Group in the form of payments from Mortgagors, Insurance
Proceeds and Liquidation Proceeds, shall be applied by the Servicer among the
Mortgage Loans constituting such Cross-Collateralized Group in accordance with
the express provisions of the related loan documents and, in the absence of such
express provisions, on a pro rata basis in accordance with the respective
amounts then "due and owing" as to each such Mortgage Loan. All amounts
collected in respect of or allocable to any particular Mortgage Loan (whether or
not such Mortgage Loan constitutes part of a Cross-Collateralized Group) in the
form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) in accordance
with the express provisions of the related Mortgage Note and Mortgage and, in
the absence of such express provisions, shall be applied for purposes of this
Agreement: first, as a recovery of any related and unreimbursed Servicing
Advances and, if applicable, unpaid Liquidation Expenses; second, as a recovery
of accrued and unpaid interest on such Mortgage Loan at the related Mortgage
Rate to, but not including, the
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date of receipt (or, in the case of a full Monthly Payment from any Mortgagor,
through the related Due Date), exclusive, however, in the case of an ARD Loan
after its Anticipated Repayment Date, of any such accrued and unpaid interest
that constitutes Additional Interest; third, as a recovery of principal of such
Mortgage Loan then due and owing, including by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium or Yield Maintenance Premium then due and owing under such
Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing
under such Mortgage Loan; eighth, as a recovery of any assumption fees and
modification fees then due and owing under such Mortgage Loan; ninth, as a
recovery of any other amounts then due and owing under such Mortgage Loan other
than remaining unpaid principal and, in the case of an ARD Loan after its
Anticipated Repayment Date, other than Additional Interest; tenth, as a recovery
of any remaining principal of such Mortgage Loan to the extent of its entire
remaining unpaid principal balance; and, eleventh, in the case of an ARD Loan
after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Additional Interest on such ARD Loan to but not including the date of receipt.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be treated: first, as a
recovery of any related and unreimbursed Servicing Advances and, if applicable,
unpaid Liquidation Expenses; second, as a recovery of accrued and unpaid
interest on the related REO Mortgage Loan at the related Mortgage Rate to, but
not including, the Due Date in the Collection Period of receipt, exclusive,
however, in the case of an REO Mortgage Loan that relates to an ARD Loan after
its Anticipated Repayment Date, of any such accrued and unpaid interest that
constitutes Additional Interest; third, as a recovery of principal of the
related REO Mortgage Loan to the extent of its entire unpaid principal balance;
fourth, as a recovery of any Prepayment Premium or Yield Maintenance Premium
deemed to be due and owing in respect of the related REO Mortgage Loan; fifth,
as a recovery of any other amounts deemed to be due and owing in respect of the
related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that
relates to an ARD Loan after its Anticipated Repayment Date, accrued and unpaid
Additional Interest); and sixth, in the case of an REO Mortgage Loan that
relates to an ARD Loan after its Anticipated Repayment Date, any accrued and
unpaid Additional Interest.
(c) For the purposes of calculating distributions pursuant to
this Agreement, Additional Interest on an ARD Loan or a successor REO Mortgage
Loan shall be deemed not to constitute principal or any portion thereof and
shall not be added to the unpaid principal balance or Stated Principal Balance
of such ARD Loan or successor REO Mortgage Loan, notwithstanding that the terms
of the related loan documents so permit. To the extent any Additional Interest
is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage
Loan or REO Property and allocable to fees and charges owing in respect of such
Mortgage Loan or the related REO Mortgage Loan, as the case may be, that
constitute Additional Servicing Compensation payable to the Servicer and/or
Additional Special Servicing Compensation payable to the Special Servicer, are
insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Servicer, on the one hand, and such of those fees and charges as are payable to
the Special Servicer, on the other, pro rata in accordance with their respective
entitlements.
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(e) The foregoing applications of amounts received in respect
of any Mortgage Loan or REO Property shall be determined by the Servicer and
reflected in the appropriate monthly Determination Date Report and Trustee
Report.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans identified on the Mortgage
Loan Schedule as being cross-collateralized with each other are, in the case of
each such particular group of Mortgage Loans, evidenced by a single mortgage
note and secured by mortgages, deeds of trust and/or deeds to secure debt on all
the Mortgaged Properties identified on the Mortgage Loan Schedule as
corresponding to such group. Each such Mortgage Loan actually represents a
portion of the entire indebtedness evidenced by the related mortgage note that
has been allocated to the Mortgaged Property identified on the Mortgage Loan
Schedule as corresponding to such Mortgage Loan. Each of the Mortgage Loans
constituting each such group shall be deemed to be a separate Mortgage Loan that
is (i) evidenced by a mortgage note identical to the mortgage note that
evidences such group (but in a principal amount equal to the principal balance
allocated to such Mortgage Loan) and (ii) cross-defaulted and
cross-collateralized with each other Mortgage Loan in such group. In addition,
it is hereby acknowledged that certain other groups of Mortgage Loans identified
on the Mortgage Loan Schedule as being cross-collateralized with each other are,
in the case of each such particular group of Mortgage Loans, by their terms,
cross-defaulted and cross-collateralized with each other. For purposes of
reference only in this Agreement, and without in any way limiting the servicing
rights and powers of the Servicer and/or the Special Servicer, with respect to
any Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including, without limitation, each
of the defined terms set forth in Section 1.01, shall be interpreted in a manner
consistent with this Section 1.04; provided that, if there exists with respect
to any Cross- Collateralized Group only one original of any document referred to
in the definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common
law trust be established pursuant to this Agreement. Norwest Bank Minnesota,
National Association is hereby appointed, and does hereby agree, to act as
Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the
exclusive use and benefit of all present and future Certificateholders. It is
not intended that this Agreement create a partnership or a joint-stock
association.
(b) The Depositor, concurrently with the execution and
delivery hereof, does hereby sell, assign, transfer and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Original
Mortgage Loans, and all payments under and proceeds of such Mortgage Loans
received after the Closing Date (other than scheduled payments of interest and
principal due on or before the Cut-off Date), together with all documents
included in the related Mortgage Files and any related Additional Collateral;
(ii) any REO Property acquired in respect of any such Mortgage Loan; (iii) such
funds or assets as from time to time are deposited in the Collection Account,
the Distribution Account and, if established, the REO Account; (iv) Sections 2,
3(a), 3(b), 3(d), 4 and 12 (and, to the extent related to the foregoing, under
Sections 10, 13, 14, 15, 16 and 19, the second paragraph of Section 7 and the
first sentence of Section 17) of each Mortgage Loan Purchase and Sale Agreement,
(v) each Column Third Party Originator Agreement (insofar as such right, title
and interest was assigned thereto under the Column Mortgage Loan Purchase and
Sale Agreement); and (vi) all other assets included or to be included in the
Trust Fund.
(c) The conveyance of the Mortgage Loans and the related
rights and property accomplished hereby is absolute and is intended by the
parties to constitute an absolute transfer of such Mortgage Loans and such other
related rights and property by the Depositor to the Trustee for the benefit of
the Certificateholders. Furthermore, it is not intended that such conveyance be
deemed a pledge of security for a loan. If such conveyance is deemed to be a
pledge of security for a loan, however, the Depositor intends that the rights
and obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) this Agreement shall constitute a security agreement under applicable
law, (ii) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in all of the Depositor's right,
title and interest in and to the assets constituting the Trust Fund, including
the Mortgage Loans subject hereto from time to time, all principal and interest
received on or with respect to such Mortgage Loans after the Closing Date (other
than scheduled payments of interest and principal due and payable on such
Mortgage Loans on or prior to the Cut-off Date or, in the case of a Replacement
Mortgage Loan, on or prior to the related date of substitution), all amounts
held from time to time in the Collection Account, the Distribution Account and,
if established, the REO Account and all reinvestment earnings on such amounts,
and all of the Depositor's right, title and interest in and to the proceeds of
any title, hazard or other Insurance Policies related to such Mortgage Loans,
(iii) the possession by the Trustee or its agent of the Mortgage Notes with
respect to the Mortgage Loans subject hereto from time to time and such other
items of property as constitute instruments,
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money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" or possession by a purchaser or person designated by such
secured party for the purpose of perfecting such security interest under
applicable law, and (iv) notifications to, and acknowledgments, receipts or
confirmations from, Persons holding such property, shall be deemed to be
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. The Depositor shall
file or cause to be filed, as a precautionary filing, a Form UCC-1 substantially
in the form attached as Exhibit J hereto in all appropriate locations in the
State of New York promptly following the initial issuance of the Certificates,
and the Servicer shall prepare and file at each such office, and the Trustee
shall execute, continuation statements with respect thereto, in each case within
six months prior to the fifth anniversary of the immediately preceding filing.
The Depositor shall cooperate in a reasonable manner with the Trustee and the
Servicer in preparing and filing such continuation statements. This Section
2.01(c) shall constitute notice to the Trustee pursuant to any requirements of
the UCC in effect in New York.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor shall deliver to and deposit with, or cause
to be delivered to and deposited with, the Trustee or a Custodian appointed
thereby, on or before the Closing Date, the Mortgage File and any Additional
Collateral (other than Reserve Funds) for each Original Mortgage Loan so
assigned, and the Depositor shall deliver to the Trustee on or before the
Closing Date a fully executed counterpart of each Mortgage Loan Purchase and
Sale Agreement and each Column Third Party Originator Agreement; provided that,
if all or any portion of the Mortgage File for any Column Mortgage Loan is held
as of the Closing Date by an Independent third party, then, in lieu of so
delivering to the Trustee or a Custodian appointed thereby the portion of such
Mortgage File so held by an Independent third party, the Depositor may deliver
to the Trustee on or before the Closing Date a trust receipt or comparable
instrument (a "Trust Receipt") that unconditionally entitles the bearer thereof
(and only the bearer thereof) to claim, without payment of any outstanding
debts, the portion of such Mortgage File so held by an Independent third party
(which the Trustee shall do promptly (and, in any event, within 15 days)
following the Closing Date, at the expense and with the cooperation of the
Depositor).
(e) As soon as reasonably possible, and in any event within 45
days after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary) and cause to be submitted for
recording or filing, as the case may be, in the appropriate office for real
property records or UCC Financing Statements, as applicable, each assignment of
Mortgage and assignment of Assignment of Leases in favor of the Trustee referred
to in clauses (iv) and (v) of the definition of "Mortgage File" that has been
received by the Trustee or a Custodian on its behalf and each UCC-2 and UCC-3 in
favor of the Trustee referred to in clause (viii) of the definition of "Mortgage
File" that has been received by the Trustee or a Custodian on its behalf. Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-2 and UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee following
filing; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases the Trustee shall obtain therefrom a certified copy of the recorded
original. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the related Seller to prepare or cause to be prepared promptly, pursuant
to the related Mortgage Loan Purchase and Sale Agreement, a substitute therefor
or cure such defect, as the case may be, and thereafter the Trustee shall, upon
receipt thereof, cause the same to be duly recorded or
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filed, as appropriate. The Depositor shall be responsible for paying the fees
and expenses of the Trustee in connection with the foregoing, as more
particularly provided for in that separate letter agreement dated April 29,
1998, between the Depositor and the Trustee.
(f) On or before the Closing Date, the Depositor shall deliver
to and deposit with, or cause to be delivered to and deposited with, the
Servicer originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession or under the control of the Depositor, the Sellers or the Column
Third Party Originators that relate to the Original Mortgage Loans and, to the
extent they are not required to be a part of a Mortgage File in accordance with
the definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of the Depositor, the Sellers or
the Column Third Party Originators that were delivered by or on behalf of the
related Mortgagors in connection with the origination of the Original Mortgage
Loans. In addition, on or before the Closing Date, the Depositor shall deliver
to and deposit with, or cause to be delivered to and deposited with, the
Servicer all unapplied Reserve Funds and Escrow Payments in respect of the
Mortgage Loans. The Servicer shall hold all such documents, records and funds on
behalf of the Trustee in trust for the benefit of the Certificateholders.
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement, hereby accepts, subject to the other provisions in this Section 2.02,
receipt, directly or through a Custodian on its behalf, of (i) the Original
Mortgage Loans and all documents delivered to it that constitute portions of the
related Mortgage Files or Trust Receipts in respect thereof and (ii) all other
assets delivered to it and included in the Trust Fund, in good faith and without
notice of any adverse claim, and declares that it or a Custodian on its behalf
holds and will hold such documents and any other documents subsequently received
by it that constitute portions of the Mortgage Files, and that it holds and will
hold the Original Mortgage Loans and such other assets, together with any other
Mortgage Loans and assets subsequently delivered to it that are to be included
in the Trust Fund, in trust for the exclusive use and benefit of all present and
future Certificateholders. The Trustee or such Custodian shall hold any Letter
of Credit in a custodial capacity only and shall have no obligation to maintain,
extend the term of, enforce or otherwise pursue any rights under such Letter of
Credit. In connection with the foregoing, the Trustee hereby certifies to each
of the other parties hereto, the Sellers and the Underwriter that, as to each
Original Mortgage Loan, except as specifically identified in the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Exhibit B-2, (i) all
documents specified in clauses (i) through (v) and (vii) of the definition of
"Mortgage File" are in its possession or the possession of a Custodian on its
behalf (or, if any such document is missing, the Trustee or a Custodian on its
behalf is in possession of a Trust Receipt covering the missing document), and
(ii) all documents and instruments received by it or any Custodian with respect
to such Mortgage Loan have been reviewed by it or by such Custodian on its
behalf and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Mortgagor),
(B) appear to have been executed (where appropriate) and (C) purport to relate
to such Mortgage Loan.
(b) On or about the 180th day following the Closing Date (and,
if any exceptions are noted, again on or about the first anniversary of the
Closing Date), the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Original
Mortgage Loan, and the Trustee shall, subject to Sections 1.04, 2.01, 2.02(c)
and 2.02(d), certify in writing to each of the other parties hereto, the
Sellers, the Controlling Class Representative and the Underwriter that, as to
each Original Mortgage Loan then subject to this Agreement (except as
specifically identified in any exception
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report annexed to such certification): (i) the original executed Mortgage Note
specified in clause (i) of the definition of "Mortgage File", each original or
certified recorded document specified in clauses (ii) through (v) of the
definition of "Mortgage File", each original policy of title insurance specified
in clause (vii) of the definition of "Mortgage File" and each document specified
in clause (viii) of the definition of "Mortgage File", is in its possession or
the possession of a Custodian on its behalf, and an insurance certificate
purporting on its face to relate to a hazard insurance policy with respect to
the related Mortgaged Property as described by clause (xi) of the definition of
"Mortgage File" is in its possession or the possession of a Custodian on its
behalf ; (ii) the recordation/filing contemplated by Section 2.01(e) has been
completed (based solely on receipt by the Trustee of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
Mortgagor), (B) appear to have been executed (where appropriate) and (C) purport
to relate to such Mortgage Loan; and (iv) based on the examinations referred to
in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (ii), (v) and (vi)(B) of the definition of
"Mortgage Loan Schedule" accurately reflects the information set forth in the
Mortgage File. If a Seller or a Column Third Party Originator substitutes a
Replacement Mortgage Loan for any Deleted Mortgage Loan as contemplated by
Section 2.03, the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to such Replacement
Mortgage Loan, and the Trustee shall deliver a comparable certification in
respect of such Replacement Mortgage Loan, on or about the 30th day following
the related date of substitution (and, if any exceptions are noted, every 90
days thereafter for so long as any exceptions remain or until such Replacement
Mortgage Loan is removed from the Trust Fund).
(c) None of the Trustee, the Servicer, the Special Servicer or
any Custodian is under any duty or obligation to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Servicer, the Special Servicer or
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(d) In performing the reviews contemplated by subsections (a)
and (b) above, the Trustee may conclusively rely on the related Seller as to the
purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), (vii) and (viii) of the definition of "Mortgage File" have been received
and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
(e) If any party hereto discovers that any document
constituting a part of a Mortgage File has not been properly executed, is
missing (other than, for the first 15 days following the Closing Date, because a
Trust Receipt covering such document was delivered in lieu thereof), contains
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule (and the terms of such
document have not been modified by written instrument contained in the Mortgage
File), or does not appear to be regular on its face (each, a "Document Defect"),
then such party shall give prompt written notice thereof to the other parties
hereto, including (unless it is the party that
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discovered the Document Defect) the Trustee (which shall in turn notify the
Controlling Class Representative). Upon the Servicer's discovery or receipt of
notice of any such Document Defect, the Servicer shall notify the Underwriter,
the related Seller and, in the case of a Column Third Party Mortgage Loan, the
related Column Third Party Originator. If any Document Defect is not corrected
within 90 days of such notice, and such Document Defect materially and adversely
affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, the Servicer shall, on behalf of the Trust, exercise
such rights and remedies as the Trust may have hereunder, under the related
Mortgage Loan Purchase and Sale Agreement and/or, in the case of any Column
Third Party Mortgage Loan, under the related Column Third Party Originator
Agreement with respect to such Document Defect in such manner as it determines,
in its good faith and reasonable judgment, is in the best interests of the
Certificateholders (taken as a collective whole). Any and all expenses incurred
by the Servicer with respect to the foregoing, together with any additional
out-of-pocket expenses reasonably incurred by the Servicer or Special Servicer
in performing their respective servicing functions as a result of a Document
Defect, shall constitute Servicing Advances in respect of the affected Mortgage
Loan. In addition, as to any Mortgage Loan, if there shall not have been
delivered the original or a copy of the related lender's title insurance policy
referred to in the definition of "Mortgage File" solely because such policy has
not yet been issued, the delivery obligations of the related Seller and/or, in
the case of any Column Third Party Mortgage Loan, the related Column Third Party
Originator as contemplated by this Section 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, if (A) the related Seller or the related Column
Third Party Originator, as applicable, shall have delivered to the Trustee on or
before the Closing Date a commitment for title insurance "marked-up" at the
closing of such Mortgage Loan, (B) the related Seller or the related Column
Third Party Originator, as applicable, is obligated under the related Mortgage
Loan Purchase and Sale Agreement or related Column Third Party Originator
Agreement to deliver to the Trustee, promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof), and (C) as
of the date that is 180 days following the Closing Date, the related Seller or
the related Column Third Party Originator, as applicable, has delivered to the
Trustee or a Custodian appointed thereby the original related lender's title
insurance policy.
SECTION 2.03. Certain Repurchases and Substitutions of
Mortgage Loans by the Originators.
(a) If any party hereto or any Certificateholder discovers a
breach of any representation or warranty relating to any Mortgage Loan set forth
in or made pursuant to the related Mortgage Loan Purchase and Sale Agreement or,
in the case of a Column Third Party Mortgage Loan, the related Column Third
Party Originator Agreement (a "Breach"), the party or Certificateholder
discovering such Breach shall give prompt written notice thereof to the other
parties hereto, including (unless it is the party that discovered the Breach)
the Trustee (which shall in turn notify the Controlling Class Representative).
If such Breach materially and adversely affects the value of such Mortgage Loan
or the interests of the Certificateholders therein, then promptly upon its
becoming aware thereof the Servicer shall require that the Person (whether it is
the related Seller or, in the case of a Column Third Party Mortgage Loan, a
Column Third Party Originator) that made the breached representation or warranty
(in any event, for purposes of this Section 2.03, the "Warranting Party"), not
later than 90 days (or such other period as is provided in the related Mortgage
Loan Purchase and Sale Agreement or, in the case of a Column Third Party
Mortgage Loan, the related Column Third Party Originator Agreement, as
applicable) from the receipt by such Warranting Party of such notice, cure such
Breach in all material respects or repurchase the affected Mortgage Loan (as, if
and to the extent required by the related Mortgage Loan Purchase and Sale
Agreement or the related Column Third Party Originator Agreement, as applicable)
at the applicable Purchase Price (or,
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in the case of the repurchase of a Column Third Party Mortgage Loan by a Column
Third Party Originator, at such other price as is provided for in the related
Column Third Party Originator Agreement, with any shortfall between such price
and the applicable Purchase Price to be made up by Column as the related Seller
pursuant to the Column Mortgage Loan Purchase and Sale Agreement); provided that
if (i) such Breach does not relate to whether the affected Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii)
such Breach is capable of being cured but not within such 90-day (or other)
period, (iii) such Warranting Party has commenced and is diligently proceeding
with the cure of such Breach within such 90-day (or other) period, and (iv) such
Warranting Party shall have delivered to the Trustee a certification executed on
behalf of such Warranting Party by an officer thereof setting forth the reason
that such Breach is not capable of being cured within an initial 90-day (or
other) period and what actions such Warranting Party is pursuing in connection
with the cure thereof and stating that such Warranting Party anticipates that
such Breach will be cured within an additional period not to exceed 90 more days
(a copy of which certification shall be delivered by the Trustee to the
Servicer, the Special Servicer and the Controlling Class Representative), then
such Warranting Party shall have up to an additional 90 days to complete such
cure; and provided, further, that, in lieu of effecting any such repurchase
(but, in any event, no later than such repurchase would have to have been
completed), such Warranting Party shall be permitted, during the three-month
period following the Closing Date (or during the two-year period following the
Closing Date if the affected Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury regulation
section 1.860G-2(f)), to replace the affected Mortgage Loan with one or more
Qualifying Substitute Mortgage Loans and to pay a cash amount equal to the
applicable Substitution Shortfall Amount (or, in the case of the replacement of
a Column Third Party Mortgage Loan by a Column Third Party Originator, to pay
such other cash amount as is provided for in the related Column Third Party
Originator Agreement, with any shortfall between such other cash amount and the
applicable Substitution Shortfall Amount to be made up by Column as the related
Seller pursuant to the Column Mortgage Loan Purchase and Sale Agreement),
subject to any other applicable terms and conditions of the related Mortgage
Loan Purchase and Sale Agreement or the related Column Third Party Originator
Agreement, as the case may be, and this Agreement. If any substitution for a
Deleted Mortgage Loan is not completed in all respects by the end of the
three-month (or, if applicable, the two-year) period contemplated by the
preceding sentence, the related Seller or, in the case of a Column Third Party
Mortgage Loan, the related Column Third Party Originator that desired to effect
such substitution shall be barred from doing so (and, accordingly, will be
limited to the cure/repurchase remedies contemplated hereby), and no party
hereto shall be liable thereto for any loss, liability or expense resulting from
the expiration of such period. If any Mortgage Loan is to be repurchased or
replaced as contemplated by this Section 2.03, the Servicer shall designate the
Collection Account as the account to which funds in the amount of the applicable
Purchase Price or Substitution Shortfall Amount (as the case may be) are to be
wired, and the Servicer shall promptly notify the Trustee when such deposit is
made. Any such repurchase or replacement of a Mortgage Loan shall be on a whole
loan, servicing released basis. Notwithstanding the foregoing, if there exists
in respect of any Column Third Party Mortgage Loan a Breach on the part of
Column as the related Seller (other than a Breach of any of the representations
and warranties of Column set forth in paragraph 23 of Exhibit C to the Column
Mortgage Loan Purchase and Sale Agreement) and a Breach on the part of the
related Column Third Party Originator, and such Breaches give rise to a cure or
repurchase/substitution obligation under both the Column Mortgage Loan Purchase
and Sale Agreement and the related Column Third Party Originator Agreement, then
the Servicer shall request Column as the related Seller to effect a cure of its
Breach or repurchase or replace the affected Mortgage Loan only if the related
Column Third Party Originator does not within its applicable
cure/repurchase/substitution period cure Column's Breach or repurchase or
replace the affected Mortgage Loan, and the cure/repurchase/substitution period
for Column will be deemed not to commence until such request is so made of
Column; provided that such cure/repurchase/substitution period
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for Column shall in no event extend beyond a total of 90 days from the end of
the cure/repurchase/substitution period for the affected Column Third Party
Originator. It is hereby acknowledged and agreed that if any Breach or Document
Defect arises out of a failure to deliver a Mortgage Note for any Mortgage Loan,
such Breach or Document Defect, as the case may be, shall be cured for purposes
of this Agreement if the related Warranting Party delivers a copy of such
Mortgage Note, together with a "lost note affidavit" certifying that the
original of such Mortgage Note has been lost.
If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased or replaced by a
Seller or a Column Third Party Originator as contemplated by this Section 2.03,
then, prior to the subject repurchase or substitution, the Servicer shall
prepare and, to the extent necessary and appropriate, have executed by the
related Mortgagor and record, such documentation as may be necessary to
terminate the cross-collateralization between the Mortgage Loans in such Cross-
Collateralized Group that are to be repurchased or replaced, on the one hand,
and the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that no such termination shall be effected unless and until the
Servicer and the Trustee have received from the Depositor, the related Seller
or, in the case of a Column Third Party Mortgage Loan, the related Column Third
Party Originator (i) an Opinion of Counsel to the effect that such termination
will not cause an Adverse REMIC Event to occur with respect to any REMIC Pool
and (ii) written confirmation from each Rating Agency that such termination will
not cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates. To the extent necessary and appropriate, the Trustee shall execute
(or, subject to Section 3.10, provide the Servicer with a limited power of
attorney that enables the Servicer to execute) the documentation referred to in
the prior sentence. The Servicer shall advance all costs and expenses incurred
by the Trustee and the Servicer pursuant to this paragraph, and such advances
shall constitute and be reimbursable as Servicing Advances. Neither the Servicer
nor the Special Servicer shall be liable to any Certificateholder or any other
party hereto if the cross-collateralization of any Cross-Collateralized Group
cannot be terminated as contemplated by this paragraph for any reason beyond the
control of the Servicer or Special Servicer, as the case may be.
Whenever one or more mortgage loans are substituted for a
Deleted Mortgage Loan as contemplated by this Section 2.03, the Servicer shall
direct the Warranting Party effecting the substitution to deliver the related
Mortgage File to the Trustee and to certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" and
to send such certification to the Trustee. No mortgage loan may be substituted
for a Deleted Mortgage Loan as contemplated by this Section 2.03 if the Mortgage
Loan to be replaced was itself a Replacement Mortgage Loan, in which case,
absent a cure of the relevant Breach or Document Defect, the affected Mortgage
Loan will be required to be repurchased as contemplated hereby. Monthly Payments
due with respect to each Replacement Mortgage Loan (if any) after the related
date of substitution, and Monthly Payments due with respect to each Deleted
Mortgage Loan (if any) after the Cutoff Date and on or prior to the related date
of substitution, shall be part of the Trust Fund. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) on or prior to the related
date of substitution, and Monthly Payments due with respect to each Deleted
Mortgage Loan (if any) after the related date of substitution, shall not be part
of the Trust Fund and are to be remitted by the Servicer to the Warranting Party
effecting the related substitution promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 2.03, the Servicer shall direct the related Seller
to amend the Mortgage Loan Schedule to reflect the removal of
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any Deleted Mortgage Loan and, if applicable, the substitution of the related
Replacement Mortgage Loan(s); and, upon its receipt of such amended Mortgage
Loan Schedule, the Servicer shall deliver or cause the delivery of such amended
Mortgage Loan Schedule to the other parties hereto. Upon any substitution of one
or more Replacement Mortgage Loans for a Deleted Mortgage Loan, such Replacement
Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms
of this Agreement in all respects.
(b) Upon receipt of an Officer's Certificate from the Servicer
to the effect that the full amount of the Purchase Price or Substitution
Shortfall Amount (as the case may be) for any Mortgage Loan repurchased or
replaced by a Seller or a Column Third Party Originator as contemplated by this
Section 2.03 has been deposited in the Collection Account, and further, if
applicable, upon receipt of the Mortgage File for each Replacement Mortgage Loan
(if any) to be substituted for a Deleted Mortgage Loan, together with the
certification referred to in the third paragraph of Section 2.03(a) from the
Warranting Party effecting the substitution, if any, the Trustee shall: (i)
release or cause the release of the Mortgage File for the Deleted Mortgage Loan
to the Person effecting the repurchase/substitution or its designee; and (ii)
execute and deliver such instruments of release, transfer and/or assignment, in
each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the Person effecting the repurchase/substitution or its
designee the ownership of the Deleted Mortgage Loan. In connection with any such
repurchase or substitution by a Seller or a Column Third Party Originator, each
of the Servicer and the Special Servicer shall deliver to the Person effecting
the repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Servicer or the Special Servicer, as the
case may be, with respect to the Deleted Mortgage Loan, in each case at the
expense of the Person effecting the repurchase/substitution. In connection with
any repurchase or replacement of a Column Third Party Mortgage Loan by Column,
the Trustee shall assign to Column as the related Seller all right, title and
interest of the Trustee in respect of such Mortgage Loan under the related
Column Third Party Originator Agreement. The costs and expenses incurred by the
Servicer, the Special Servicer and/or the Trustee pursuant to this Section
2.03(b) shall be reimbursable to each of them as Servicing Advances in respect
of the affected Mortgage Loan.
(c) The Mortgage Loan Purchase and Sale Agreements and the
Column Third Party Originator Agreements provide the sole remedies available to
the Certificateholders, or the Trustee on their behalf, respecting any Breach.
If a Seller and/or a Column Third Party Originator defaults on its obligations
to repurchase or replace any Mortgage Loan as contemplated by this Section 2.03,
the Servicer shall promptly notify the Trustee and the Certificateholders and
shall take such actions on behalf of the Trust with respect to the enforcement
of such repurchase/substitution obligations, including the institution and
prosecution of appropriate legal proceedings, as the Servicer shall determine
are in the best interests of the Certificateholders (taken as a collective
whole). Any and all expenses incurred by the Servicer with respect to the
foregoing shall constitute Servicing Advances in respect of the affected
Mortgage Loan.
SECTION 2.04. Representations and Warranties of the
Depositor.
(a) The Depositor hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
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(ii) The Depositor's execution and delivery of,
performance under, and compliance with this Agreement, will
not violate the Depositor's organizational documents or
constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound.
(iii) The Depositor has the full power and authority to
own its properties, to conduct its business as presently
conducted by it and to enter into and consummate all
transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Depositor, enforceable against the Depositor in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its
execution and delivery of, performance under and compliance
with this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the
Depositor's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the
Depositor to perform its obligations under this Agreement or
the financial condition of the Depositor.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is
required for the consummation by the Depositor of the
transactions contemplated herein, except (A) for those
consents, approvals, authorizations or orders that previously
have been obtained, (B) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase
and sale of the Certificates by the Underwriter, and (C) any
recordation of the assignments of Mortgage Loan documents to
the Trustee pursuant to Section 2.01(e), which has not yet
been completed.
(vii) The transfer of the Mortgage Loans to the Trustee
as contemplated herein requires no regulatory approval, other
than any such approvals as have been obtained, and is not
subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(viii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that,
if determined adversely to the Depositor, would prohibit the
Depositor from entering into this Agreement or that, in the
Depositor's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or
the financial condition of the Depositor.
(ix) Immediately prior to the transfer of the Original
Mortgage Loans to the Trustee for the benefit of the
Certificateholders pursuant to this Agreement, the Depositor
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had good and marketable title to, and was the sole owner and
holder of, each such Mortgage Loan; and the Depositor has full
right and authority to sell, assign and transfer the Mortgage
Loans.
(x) The Depositor is transferring the Original Mortgage
Loans to the Trustee for the benefit of the Certificateholders
free and clear of any and all liens, pledges, charges and
security interests created by or through the Depositor.
(b) The representations and warranties of the Depositor set
forth in Section 2.04(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
SECTION 2.05. Representations and Warranties of the
Servicer.
(a) The Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and is in compliance with the laws of each
State in which any Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan
and to perform its obligations under this Agreement.
(ii) The Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not
violate the Servicer's organizational documents or constitute
a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the
breach of, any material agreement or other material instrument
to which it is a party or by which it is bound, which breach
or default, in the good faith and reasonable judgment of the
Servicer, is likely to affect materially and adversely either
the ability of the Servicer to perform its obligations under
this Agreement or the financial condition of the Servicer.
(iii) The Servicer has the full power and authority to
enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Servicer, enforceable against the Servicer in accordance with
the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Servicer is not in violation of, and its
execution and delivery of, performance under and compliance
with this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any
order, regulation or demand of any
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federal, state or local governmental or regulatory authority,
which violation, in the Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely the
ability of the Servicer to perform its obligations under this
Agreement.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is
required for the consummation by the Servicer of the
transactions contemplated herein, except for those consents,
approvals, authorizations or orders that previously have been
obtained.
(vii) No litigation is pending or, to the best of the
Servicer's knowledge, threatened against the Servicer that, if
determined adversely to the Servicer, would prohibit the
Servicer from entering into this Agreement or that, in the
Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the
Servicer to perform its obligations under this Agreement or
the financial condition of the Servicer.
(viii) Each officer, director or employee of the Servicer
with responsibilities concerning the servicing and
administration of any Mortgage Loan is covered by errors and
omissions insurance in the amounts and with the coverage
required by Section 3.07(c).
(ix) There is no event, condition or circumstance in
existence that constitutes (or, with notice or lapse of time,
or both, would constitute) an Event of Default on the part of
the Servicer.
(x) The Servicer has examined each of the Sub-Servicing
Agreements that will be in effect as of the Closing Date with
respect to the Mortgage Loans, and each such Sub- Servicing
Agreement complies with the requirements of Section 3.22(a) in
all material respects.
(b) The representations and warranties of the Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.05(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.05(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.06. Representations and Warranties of the
Special Servicer.
(a) The Special Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Special Servicer is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware, and the Special Servicer is in
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compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The Special Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not
violate the Special Servicer's organizational documents or
constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound,
which breach or default, in the good faith and reasonable
judgment of the Special Servicer, is likely to affect
materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or
the financial condition of the Special Servicer.
(iii) The Special Servicer has the full power and
authority to enter into and consummate all transactions
involving the Special Servicer contemplated by this Agreement,
has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Special Servicer, enforceable against the Special Servicer in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and
its execution and delivery of, performance under and
compliance with the terms of this Agreement will not
constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority,
which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is
required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents,
approvals, authorizations or orders that previously have been
obtained.
(vii) No litigation is pending or, to the best of the
Special Servicer's knowledge, threatened against the Special
Servicer that, if determined adversely to the Special
Servicer, would prohibit the Special Servicer from entering
into this Agreement or that, in the Special Servicer's good
faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(viii) Each officer, director or employee of the Special
Servicer with responsibilities concerning the servicing and
administration of any Specially Serviced Mortgage Loan or REO
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Property is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c).
(ix) There is no event, condition or circumstance in
existence that constitutes (or, with notice or lapse of time,
or both, would constitute) an Event of Default on the part of
the Special Servicer.
(x) The Special Servicing Fee, Workout Fee and
Liquidation Fee are reasonable in light of the duties and
obligations of the Special Servicer.
(b) The representations and warranties of the Special Servicer
set forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.07. Representations and Warranties of the
Trustee.
(a) The Trustee hereby represents and warrants to, and
covenants with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is duly organized, validly existing and
in good standing as a national banking association under the
laws of the United States and is, shall be or, if necessary,
shall appoint a co-trustee that is, in compliance with the
laws of each State in which any Mortgaged Property is located
to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this
Agreement.
(ii) The Trustee's execution and delivery of,
performance under and compliance with this Agreement, will not
violate the Trustee's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in a
material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound.
(iii) The Trustee has the full power and authority to
enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Trustee, enforceable against the Trustee in accordance with
the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the enforcement
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of creditors' rights generally and the rights of creditors of
banks, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Trustee is not in violation of, and its
execution and delivery of, performance under and compliance
with this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the
Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is
required for the consummation by the Trustee of the
transactions contemplated herein, except for those consents,
approvals, authorizations or orders that previously have been
obtained.
(vii) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee that, if
determined adversely to the Trustee, would prohibit the
Trustee from entering into this Agreement or that, in the
Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the
Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder
in accordance with Section 8.06.
(b) The representations and warranties of the Trustee set
forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations, warranties
and covenants, the party discovering such breach shall give prompt written
notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.07(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.07(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.08. Representations and Warranties of the REMIC
Administrator.
(a) The REMIC Administrator hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The REMIC Administrator is duly organized, validly
existing and in good standing as a national banking
association under the laws of the United States.
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(ii) The REMIC Administrator's execution and delivery
of, performance under and compliance with this Agreement, will
not violate the REMIC Administrator's organizational documents
or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or
other material instrument to which it is a party or by which
it is bound.
(iii) The REMIC Administrator has the full power and
authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the REMIC
Administrator, enforceable against the REMIC Administrator in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally
and the rights of creditors of banks, and (B) general
principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The REMIC Administrator is not in violation of, and
its execution and delivery of, performance under and
compliance with this Agreement will not constitute a violation
of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the
REMIC Administrator's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability
of the REMIC Administrator to perform its obligations under
this Agreement or the financial condition of the REMIC
Administrator.
(vi) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is
required for the consummation by the REMIC Administrator of
the transactions contemplated herein, except for those
consents, approvals, authorizations or orders that previously
have been obtained.
(vii) No litigation is pending or, to the best of the
REMIC Administrator's knowledge, threatened against the REMIC
Administrator that, if determined adversely to the REMIC
Administrator, would prohibit the REMIC Administrator from
entering into this Agreement or that, in the REMIC
Administrator's good faith and reasonable judgment, is likely
to materially and adversely affect either the ability of the
REMIC Administrator to perform its obligations under this
Agreement or the financial condition of the REMIC
Administrator.
(viii) There is no event, condition or circumstance in
existence that constitutes (or, with notice or lapse of time,
or both, would constitute) an Event of Default on the part of
the REMIC Administrator.
(b) The representations and warranties of the REMIC
Administrator set forth in Section 2.08(a) shall survive the execution and
delivery of this Agreement and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust remains in existence. Upon
discovery
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by any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor REMIC Administrator shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.09. Designation of the Certificates.
(a) The Certificates shall consist of 20 Classes hereby
designated as the "Class S Certificates", the "Class A-1A Certificates", the
"Class A-1B Certificates", the "Class A-1C Certificates", the "Class A-2
Certificates", the "Class A-3 Certificates", the "Class A-4 Certificates", the
"Class B-1 Certificates", the "Class B-2 Certificates", the "Class B-3
Certificates", the "Class B-4 Certificates", the "Class B-5 Certificates", the
"Class B-6 Certificates", the "Class B-7 Certificates", the "Class C
Certificates", the "Class D-1 Certificates", the "Class D-2 Certificates", the
"Class R-I Certificates", the "Class R-II Certificates" and the "Class R-III
Certificates", respectively.
(b) The Class A-1A, Class A-1B, Class A-1C, Class A-2, Class
A-3 and Class A-4 Certificates are collectively designated as the "Class A
Certificates".
(c) The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5,
Class B-6 and Class B-7 Certificates are collectively designated as the "Class B
Certificates".
(d) The Class S, Class A-1A and Class A-1B Certificates are
collectively designated as the "Senior Certificates".
(e) The Class A-1C, Class A-2, Class A-3, Class A-4, Class B,
Class C, Class R-I, Class R-II and Class R-III Certificates are collectively
designated as the "Subordinated Certificates".
(f) The Class A, Class B and Class C Certificates are
collectively designated as the "Sequential Pay Certificates".
(g) The Class D-1 Certificates and the Class D-2 Certificates
are collectively designated as the "Grantor Trust Certificates".
(h) The Class S Certificates are also designated as the
"Interest Only Certificates".
(i) The Class S Certificates and the Sequential Pay
Certificates are collectively designated as the "Regular Interest Certificates".
(j) The Class R-I, Class R-II and Class R-III Certificates are
collectively designated as the "Residual Interest Certificates".
(k) The Regular Interest Certificates and the Class R-III
Certificates are collectively designated as the "REMIC III Certificates".
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SECTION 2.10. Creation of REMIC I; Issuance of REMIC I Regular
Interests and Class R-I Certificates.
(a) It is the intention of the parties hereto that the
following segregated pool of assets constitute a REMIC for federal income tax
purposes, and that such segregated pool of assets be designated as "REMIC I":
(i) the Mortgage Loans that are from time to time subject to this Agreement and
all payments under and proceeds of such Mortgage Loans received after the
Closing Date or, in the case of a Replacement Mortgage Loan, after the related
date of substitution (other than scheduled payments of interest and principal
due on or before the Cut-off Date or, in the case of a Replacement Mortgage
Loan, on or before the related date of substitution and other than Additional
Interest collected in respect of the ARD Loans after their respective
Anticipated Repayment Dates), together with all documents included in the
related Mortgage Files and Servicing Files and any related Additional
Collateral; (ii) any REO Property acquired in respect of any such Mortgage Loan;
(iii) such funds and assets as from time to time are deposited in the Collection
Account, the Distribution Account and, if established, the REO Account
(exclusive of any amounts that constitute Additional Interest collected in
respect of the ARD Loans after their respective Anticipated Repayment Dates);
(iv) the rights of the Depositor under Sections 2, 3(a), 3(b), 3(d), 4 and 12
(and, to the extent related to the foregoing, under Sections 10, 13, 14, 15, 16
and 19, the second paragraph of Section 7 and the first sentence of Section 17)
of the Mortgage Loan Purchase and Sale Agreement; (v) the rights of the Trustee
and the Certificateholders as third party beneficiaries under the Mortgage Loan
Purchase and Sale Agreement (as and to the extent provided under Section 11
thereof); and (vi) the rights of the Depositor under the Column Third Party
Originator Agreements (insofar as such rights were assigned thereto under the
Mortgage Loan Purchase and Sale Agreement). The Closing Date is hereby
designated as the "Startup Day" of REMIC I within the meaning of Section
860G(a)(9) of the Code.
(b) Concurrently with the assignment of the Original Mortgage
Loans and certain related assets to the Trustee pursuant to Section 2.01(b) and
in exchange therefor, the REMIC I Regular Interests shall be issued, and the
Trustee, pursuant to the written request of the Depositor executed by an officer
of the Depositor, shall execute, authenticate and deliver to or upon the order
of the Depositor, the Class R-I Certificates in authorized denominations. A
separate REMIC I Regular Interest shall be issued with respect to each Original
Mortgage Loan. For purposes of this Agreement, each REMIC I Regular Interest
shall relate to the Original Mortgage Loan in respect of which it was issued, to
each Replacement Mortgage Loan (if any) substituted for such Original Mortgage
Loan, and to each REO Mortgage Loan deemed outstanding with respect to an REO
Property (if any) acquired in respect of such Original Mortgage Loan or any such
Replacement Mortgage Loan. None of the REMIC I Regular Interests shall be
certificated. The interests evidenced by the Class R-I Certificates, together
with the REMIC I Regular Interests, shall constitute the entire beneficial
ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-I Certificates shall constitute the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC I.
None of the parties hereto, to the extent it is within the control thereof,
shall create or permit the creation of any other "interests" in REMIC I (within
the meaning of Treasury regulation section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be
the loan number for the related Original Mortgage Loan set forth in the Mortgage
Loan Schedule.
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(e) Each REMIC I Regular Interest shall have a principal
balance (herein referred to as its "Uncertificated Principal Balance"). As of
the Closing Date, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall equal the Cut-off Date Balance of the related Original Mortgage
Loan (as specified in the Mortgage Loan Schedule). On each Distribution Date,
the Uncertificated Principal Balance of each REMIC I Regular Interest shall be
permanently reduced by any distributions of principal deemed made in respect of
such REMIC I Regular Interest on such Distribution Date pursuant to Section
4.01(i) and, further, by any Realized Losses and/or Additional Trust Fund
Expenses deemed allocated to such REMIC I Regular Interest on such Distribution
Date pursuant to Section 4.04(c). Except as provided in the preceding sentence,
the Uncertificated Principal Balance of each REMIC I Regular Interest shall not
otherwise be increased or reduced. Deemed distributions in reimbursement of
REMIC II with respect to any REMIC I Regular Interest for previously allocated
Realized Losses and Additional Trust Fund Expenses shall not constitute deemed
distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC I Regular Interest.
(f) As provided below, each REMIC I Regular Interest shall
bear interest, such interest to accrue on its Uncertificated Principal Balance
outstanding from time to time. The per annum rate at which each REMIC I Regular
Interest shall accrue interest during each Interest Accrual Period is herein
referred to as its "REMIC I Remittance Rate". The REMIC I Remittance Rate in
respect of any particular REMIC I Regular Interest for any Interest Accrual
Period shall be as follows: (i) if, as of the Closing Date, the related Original
Mortgage Loan bears interest calculated on a 30/360 Basis, then the REMIC I
Remittance Rate in respect of any particular REMIC I Regular Interest for any
Interest Accrual Period shall equal the Mortgage Rate in effect for the related
Original Mortgage Loan as of the Closing Date, minus six (6) basis points
(0.06%); and (ii) if, as of the Closing Date, the related Original Mortgage Loan
bears interest calculated on an Actual/360 Basis, then the REMIC I Remittance
Rate in respect of any particular REMIC I Regular Interest for any Interest
Accrual Period shall equal (A) a fraction (expressed as a percentage), the
numerator of which is (subject to adjustment as provided below) the product of
twelve times the aggregate amount of interest that would accrue during such
Interest Accrual Period on the Uncertificated Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to the related Distribution Date
if such interest were calculated on an Actual/360 Basis at the Mortgage Rate in
effect for the related Original Mortgage Loan as of the Closing Date, and the
denominator of which is the Uncertificated Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to the related Distribution Date,
minus (B) six (6) basis points (0.06%); provided that, in the case of a REMIC I
Regular Interest that corresponds to an Interest Reserve Loan, if the subject
Interest Accrual Period occurs during January of any year or during December of
any year that does not immediately precede a leap year, the amount of the
numerator for the fraction described in clause (ii)(A) above shall be reduced by
the related Interest Reserve Amount that is to be transferred from the
Distribution Account to, or deducted from the related Servicer Remittance Amount
and/or P&I Advances and deposited in, the Interest Reserve Account in the
following calendar month in accordance with Section 3.04(c) and, if the subject
Interest Accrual Period occurs during February of any year, the amount of the
numerator for the fraction described in clause (ii)(A) above shall be increased
by any related Interest Reserve Amount(s) to be transferred from the Interest
Reserve Account to the Distribution Account pursuant to Section 3.05(c) for
distribution on the Distribution Date in March of such year; and provided,
further, that, in the case of a REMIC I Regular Interest that corresponds to a
Mortgage Loan with a Stated Maturity Date that occurs other than on the first
day of the relevant calendar month, the REMIC I Remittance Rate in respect of
such REMIC I Regular Interest for the Interest Accrual Period in which such
Stated Maturity Date occurs shall equal the product of (s) the REMIC I
Remittance Rate that would otherwise have been in effect for such REMIC I
Regular Interest for such Interest Accrual Period without regard to this
proviso, multiplied by (t) a fraction (expressed as a percentage), the numerator
of which shall
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be the number of days in such Interest Accrual Period up to but not including
such Stated Maturity Date, and the denominator of which shall be 30.
(g) The Uncertificated Accrued Interest in respect of each
REMIC I Regular Interest shall commence accruing on the Cut-off Date and, during
each Interest Accrual Period, shall accrue at the applicable REMIC I Remittance
Rate on the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date. The
Uncertificated Accrued Interest in respect of each REMIC I Regular Interest
shall be calculated on a 30/360 Basis. Notwithstanding the foregoing, the
portion of the Uncertificated Accrued Interest in respect of any REMIC I Regular
Interest for any Interest Accrual Period that may be deemed distributable to
REMIC II with respect to such REMIC I Regular Interest pursuant to Section
4.01(i) shall not exceed the Uncertificated Distributable Interest in respect of
such REMIC I Regular Interest for the related Distribution Date.
(h) Solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I
Regular Interest shall be the first Distribution Date that follows the Stated
Maturity Date for the related Original Mortgage Loan.
(i) The Class R-I Certificates shall not have principal
balances and shall not bear interest.
SECTION 2.11. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC I Regular Interests by
Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests to the Trustee for the benefit of the Holders of the Class
R-II and REMIC III Certificates. The Trustee acknowledges the assignment to it
of the REMIC I Regular Interests and declares that it holds and will hold the
same in trust for the exclusive use and benefit of all present and future
Holders of the Class R-II and REMIC III Certificates.
SECTION 2.12. Creation of REMIC II; Issuance of REMIC II
Regular Interests and Class R-II Certificates.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of the REMIC I Regular Interests constitute
a REMIC for federal income tax purposes, and that such segregated pool of assets
be designated as "REMIC II". The Closing Date is hereby designated as the
"Startup Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular
Interests to the Trustee pursuant to Section 2.11 and in exchange therefor, the
REMIC II Regular Interests shall be issued, and the Trustee, pursuant to the
written request of the Depositor executed by an officer of the Depositor, shall
execute, authenticate and deliver to or upon the order of the Depositor, the
Class R-II Certificates in authorized denominations. There shall be 14 separate
REMIC II Regular Interests, and none of the REMIC II Regular Interests shall be
certificated.
(c) The REMIC II Regular Interests shall constitute the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-II Certificates shall constitute the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
None of the
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parties hereto, to the extent it is within the control thereof, shall create or
permit the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests are hereby designated as
"REMIC II Regular Interest A-1A", "REMIC II Regular Interest A-1B", "REMIC II
Regular Interest A-1C", "REMIC II Regular Interest A-2", "REMIC II Regular
Interest A-3", "REMIC II Regular Interest A-4", "REMIC II Regular Interest B-
1", "REMIC II Regular Interest B-2","REMIC II Regular Interest B-3","REMIC II
Regular Interest B-4", "REMIC II Regular Interest B-5", "REMIC II Regular
Interest B-6", "REMIC II Regular Interest B-7" and "REMIC II Regular Interest
C", respectively.
(e) Each REMIC II Regular Interest shall have a principal
balance (herein referred to as its "Uncertificated Principal Balance"). The
following table sets forth for each REMIC II Regular Interest the initial
Uncertificated Principal Balance thereof and the calendar month in which the
Latest Possible Maturity Date thereof occurs (calculated based on the Maturity
Assumptions):
<TABLE>
<CAPTION>
Designation of Initial Uncertificated Latest Possible
REMIC II Regular Interest Principal Balance Maturity Date(1)
------------------------- ----------------- ----------------
<S> <C> <C> <C>
A-1A $291,005,000 December 2007
A-1B $835,257,000 May 2008
A-1C $ 39,106,000 May 2008
A-2 $ 39,106,000 May 2008
A-3 $ 78,213,000 June 2008
A-4 $ 23,464,000 June 2008
B-1 $ 70,391,000 May 2010
B-2 $ 23,464,000 September 2012
B-3 $ 15,643,000 January 2013
B-4 $ 66,481,000 May 2013
B-5 $ 15,642,000 June 2013
B-6 $ 27,374,000 December 2016
B-7 $ 15,643,000 June 2018
C $ 23,464,441 May 2023
</TABLE>
- ------------------
(1) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC
II Regular Interest will be the Distribution Date in the calendar month
specified in the foregoing table in respect of such REMIC II Regular
Interest.
On each Distribution Date, the Uncertificated Principal Balance
of each REMIC II Regular Interest shall be permanently reduced by any
distributions of principal deemed made in respect of such REMIC II Regular
Interest on such Distribution Date pursuant to Section 4.01(h) and, further, by
any Realized Losses and/or Additional Trust Fund Expenses deemed allocated to
such REMIC II Regular Interest on such Distribution Date pursuant to Section
4.04(b). Except as provided in the preceding sentence, the Uncertificated
Principal Balance of each REMIC II Regular Interest shall not otherwise be
increased or decreased. Deemed distributions in reimbursement of REMIC III with
respect to any REMIC II Regular Interest for previously allocated Realized
Losses and Additional Trust Fund Expenses shall not constitute deemed
distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
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(f) As provided below, each REMIC II Regular Interest shall bear
interest, such interest to accrue on its Uncertificated Principal Balance
outstanding from time to time. The per annum rate at which each REMIC II Regular
Interest shall accrue interest is herein referred to as its "REMIC II Remittance
Rate". The REMIC II Remittance Rate for each REMIC II Regular Interest shall be
variable and, with respect to any Interest Accrual Period, shall equal the
weighted average, expressed as a percentage and rounded to eight decimal places,
of the respective REMIC I Remittance Rates in effect for all the REMIC I Regular
Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
(g) The Uncertificated Accrued Interest in respect of each REMIC
II Regular Interest shall commence accruing on the Cut-off Date and, during each
Interest Accrual Period, shall accrue at the applicable REMIC II Remittance Rate
on the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to the related Distribution Date. The
Uncertificated Accrued Interest in respect of each REMIC II Regular Interest
shall be calculated on a 30/360 Basis. Notwithstanding the foregoing, the
portion of the Uncertificated Accrued Interest in respect of any REMIC II
Regular Interest for any Interest Accrual Period that may be deemed
distributable to REMIC III with respect to such REMIC II Regular Interest
pursuant to Section 4.01(h) shall not exceed the Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for the related
Distribution Date.
(h) The Class R-II Certificates shall not have principal balances
and shall not bear interest.
SECTION 2.13. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC II Regular Interests by
Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.14. Creation of REMIC III; Issuance of REMIC III
Certificates.
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of the REMIC II Regular Interests constitute a REMIC
for federal income tax purposes, and that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC III Regular
Interests to the Trustee pursuant to Section 2.13 and in exchange therefor, the
Trustee shall execute, authenticate and deliver to or upon the order of the
Depositor, the REMIC III Certificates in authorized denominations evidencing the
entire beneficial ownership of REMIC III. The Class S Certificates shall
actually represent 12 separate beneficial ownership interests in REMIC III
(together, the "Class S REMIC III Regular Interests").
(c) The respective Classes of the Sequential Pay Certificates,
together with the Class S REMIC III Regular Interests represented by the Class S
Certificates, shall constitute the "regular interests" (within the meaning of
Section 860G(a)(1) of the Code), and the Class R-III Certificates shall
constitute the
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sole class of "residual interests" (within the meaning of Section 860(G)(a)(2)
of the Code), in REMIC III. None of the parties hereto, to the extent it is
within the control thereof, shall create or permit the creation of any other
"interests" in REMIC III within the meaning of Treasury regulation section
1.860D-1(b)(1)).
(d) The Class S REMIC III Regular Interests are hereby designated
as "REMIC III Regular Interest S-A-1A", "REMIC III Regular Interest S-A-1B",
"REMIC III Regular Interest S-A-1C", "REMIC III Regular Interest S-A-2", "REMIC
III Regular Interest S-A-3", "REMIC III Regular Interest S- A-4", "REMIC III
Regular Interest S-B-1", "REMIC III Regular Interest S-B-5", "REMIC III Regular
Interest S-B-6", "REMIC III Regular Interest S-B-7" and "REMIC III Regular
Interest S-C", respectively.
The Class S REMIC III Regular Interests (and, accordingly, the
Class S Certificates) shall not have principal balances. As provided below,
however, each Class S REMIC III Regular Interest shall bear interest, such
interest to accrue on a notional amount (a "Component Notional Amount") equal to
the Uncertificated Principal Balance of such Class S REMIC III Regular
Interest's Corresponding REMIC II Regular Interest outstanding from time to
time. Notwithstanding the foregoing, the Class S Certificates shall be deemed to
have an aggregate notional amount (a "Class Notional Amount") that is, as of any
date of determination, equal to the aggregate of the then Uncertificated
Principal Balances of all the REMIC II Regular Interests.
The per annum rate at which each Class S REMIC III Regular
Interest shall accrue Interest is herein referred to as its "Class S Strip
Rate". The Class S Strip Rate for each Class S REMIC III Regular Interest shall
be variable and, with respect to each Interest Accrual Period, shall equal the
excess, if any, of (i) the REMIC II Remittance Rate for such Interest Accrual
Period in respect of such Class S REMIC III Regular Interest's Corresponding
REMIC II Regular Interest, over (ii) the Pass-Through Rate for such Interest
Accrual Period in respect of the Class of Sequential Pay Certificates with the
same Corresponding REMIC II Regular Interest.
The per annum rate at which each Class of Regular Interest
Certificates accrues (or is deemed to accrue) interest is herein referred to as
its "Pass-Through Rate". The Class S Certificates will be deemed to have a
Pass-Through Rate that, with respect to each Interest Accrual Period, is equal
to a fraction (expressed as a percentage), the numerator of which is equal to
the product of twelve times the amount of Accrued Certificate Interest in
respect of the Class S Certificates for such Interest Accrual Period (calculated
in accordance with Section 2.14(g)) , and the denominator of which is the Class
Notional Amount of the Class S certificates deemed to be outstanding immediately
prior to the related Distribution Date.
Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each Class S REMIC
III Regular Interest shall be the same as the "latest possible maturity date"
for such Class S REMIC III Regular Interest's Corresponding REMIC II Regular
Interest.
(e) Each Class of Sequential Pay Certificates shall have an
aggregate principal balance (herein referred to as its "Class Principal
Balance"). As provided below, each such Class of Sequential Pay Certificates
shall bear interest, such interest to accrue on the Class Principal Balance of
such Class of Certificates outstanding from time to time.
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The following table sets forth for each Class of Sequential Pay
Certificates the initial Class Principal Balance thereof, the Pass-Through Rate
with respect thereto for the initial Interest Accrual Period and the calendar
month in which the Latest Possible Maturity Date thereof occurs (calculated
based on the Maturity Assumptions):
<TABLE>
<CAPTION>
Class Initial Class Initial Latest Possible
Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------- ----------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Class A-1A $291,005,000 6.1100% December 2007
Class A-1B $835,257,000 6.4100% May 2008
Class A-1C $ 39,106,000 6.4600% May 2008
Class A-2 $ 39,106,000 6.5100% May 2008
Class A-3 $ 78,213,000 6.6500% June 2008
Class A-4 $ 23,464,000 6.7600% June 2008
Class B-1 $ 70,391,000 6.9100% May 2010
Class B-2 $ 23,464,000 7.1503% September 2012
Class B-3 $ 15,643,000 7.1503% January 2013
Class B-4 $ 66,481,000 7.1503% May 2013
Class B-5 $ 15,642,000 6.3000% June 2013
Class B-6 $ 27,374,000 6.3000% December 2016
Class B-7 $ 15,643,000 6.3000% June 2018
Class C $ 23,464,441 6.3000% May 2023
</TABLE>
- ------------------
(1) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of
Sequential Pay Certificates will be the Distribution Date in the calendar
month specified in the foregoing table in respect of such Class of
Sequential Pay Certificates.
The respective Pass-Through Rates applicable to the Class A-1A,
Class A-1B, Class A-1C, Class A-2, Class A-3, Class A-4, Class B-5, Class B-6,
Class B-7 and Class C Certificates shall, in the case of each such Class of
Certificates, for each Interest Accrual Period subsequent to the initial
Interest Accrual Period, remain fixed at the per annum rate set forth in the
table above with respect to such Class of Certificates. The Pass-Through Rate
applicable to the Class B-1 Certificates is subject to change and, for each
Interest Accrual Period subsequent to the initial Interest Accrual Period, shall
equal the lesser of (i) the per annum rate set forth in the table above with
respect to such Class of Certificates and (ii) the REMIC II Remittance Rate in
effect during such Interest Accrual Period in respect of the Corresponding REMIC
II Regular Interest for such Class of Certificates. The respective Pass-Through
Rates applicable to the Class B-2, Class B-3 and Class B-4 Certificates are
variable and, in the case of each such Class of Certificates, for each Interest
Accrual Period subsequent to the initial Interest Accrual Period, shall equal
the REMIC II Remittance Rate in effect during such Interest Accrual Period in
respect of the Corresponding REMIC II Regular Interest for such Class of
Certificates.
On each Distribution Date, the Class Principal Balance of each
Class of Sequential Pay Certificates shall be permanently reduced by any
distributions of principal made in respect of such Class of Certificates on such
Distribution Date pursuant to Section 4.01(a) and, further, by any Realized
Losses and/or Additional Trust Fund Expenses allocated to such Class of
Certificates on such Distribution Date pursuant to Section 4.04(a). Except as
provided in the preceding sentence, the Class Principal Balance of each Class of
Sequential Pay Certificates shall not otherwise be increased or reduced.
Distributions in reimbursement of the Holders of any such Class of Sequential
Pay Certificates for previously allocated Realized Losses and
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Additional Trust Fund Expenses shall not constitute distributions of principal
and shall not result in any reduction of the Certificate Principal Balances of
such Certificates or of the related Class Principal Balance.
(f) Accrued Component Interest in respect of the Class S REMIC
III Regular Interests shall commence accruing on the Cut-off Date. With respect
to each Class S REMIC III Regular Interest, the Accrued Component Interest shall
accrue during each Interest Accrual Period at the applicable Class S Strip Rate
on the Component Notional Amount of such Class S REMIC III Regular Interest
outstanding immediately prior to the related Distribution Date. The Accrued
Component Interest in respect of each Class S REMIC III Regular Interest shall
be calculated on a 30/360 Basis. Notwithstanding the foregoing, the portion of
the Accrued Component Interest in respect of any Class S REMIC III Regular
Interest for any Interest Accrual Period that may be distributable to the
Holders of the Class S Certificates pursuant to Section 4.01(a) shall not exceed
the Distributable Component Interest in respect of such Class S REMIC III
Regular Interest for the related Distribution Date.
(g) Accrued Certificate Interest in respect of the Sequential Pay
Certificates shall commence accruing on the Cut-off Date. With respect to each
Class of Sequential Pay Certificates, the Accrued Certificate Interest shall
accrue during each Interest Accrual Period at the applicable Pass-Through Rate
on the Class Principal Balance of such Class of Certificates outstanding
immediately prior to the related Distribution Date. The Accrued Certificate
Interest in respect of each Class of Sequential Pay Certificates shall be
calculated on a 30/360 Basis. The Accrued Certificate Interest in respect of the
Class S Certificates for any Interest Accrual Period shall consist of the
aggregate Accrued Component Interest in respect of all the Class S REMIC III
Regular Interests for such Interest Accrual Period, calculated in accordance
with Section 2.14(f). Notwithstanding the foregoing, the portion of the Accrued
Certificate Interest in respect of any Class of Regular Interest Certificates
for any Interest Accrual Period that may be distributable to the Holders of such
Class of Certificates pursuant to Section 4.01(a) shall not exceed the
Distributable Certificate Interest in respect of such Class of Certificates for
the related Distribution Date.
(h) The Class R-III Certificates shall not have principal
balances and shall not bear interest.
SECTION 2.15. Acceptance of Grantor Trusts by Trustee;
Issuance of Class D Certificates.
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of the Additional Interest on the GECA Mortgage Loans
constitute a Grantor Trust for federal income tax purposes, and that such
segregated pool of assets be designated as "Grantor Trust D-1". The Trustee, by
its execution and delivery hereof, acknowledges the assignment to it of the
assets of Grantor Trust D-1 and declares that it will hold such assets in trust
for the exclusive use and benefit of all present and future Holders of the Class
D-1 Certificates. Concurrently with the assignment to it of the assets included
in Grantor Trust D-1, the Trustee shall execute, authenticate and deliver to or
upon the order of the Depositor the Class D-1 Certificates in authorized
denominations evidencing the entire beneficial ownership of Grantor Trust D-1.
The rights of the Holders of the Class D-1 Certificates to receive distributions
from the proceeds of Grantor Trust D-1, and all ownership interests of such
Holders in and to such distributions, shall be as set forth in this Agreement.
(b) It is the intention of the parties hereto that the segregated
pool of assets consisting of the Additional Interest relating to the Column
Mortgage Loans constitute a Grantor Trust for federal income tax purposes, and
that such segregated pool of assets be designated as "Grantor Trust D-2". The
Trustee by its execution and delivery hereof, acknowledges the assignment to it
of the assets of Grantor Trust D-2
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and declares that it will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class D-2 Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
D-2, the Trustee shall execute, authenticate and deliver to or upon the order of
the Depositor the Class D-2 Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust D-2. The rights of the Holders
of the Class D-2 Certificates to receive distributions from the proceeds of
Grantor Trust D-2, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Servicer and the Special Servicer shall service
and administer the Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement, for the benefit of the Certificateholders (as a
collective whole), in accordance with any and all applicable laws and the terms
of this Agreement and the respective Mortgage Loans and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard. The
Servicer or Special Servicer, as applicable in accordance with this Agreement,
shall service and administer each Cross-Collateralized Group as a single
Mortgage Loan as and when necessary and appropriate consistent with the
Servicing Standard. Without limiting the foregoing, and subject to Section 3.21,
(i) the Servicer shall service and administer all Mortgage Loans as to which no
Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii)
the Special Servicer shall service and administer (x) each Mortgage Loan (other
than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has
occurred, and (y) each REO Property; provided, however, that the Servicer shall
continue to collect information and prepare all reports to the Trustee required
hereunder with respect to any Specially Serviced Mortgage Loans and REO
Properties (and the related REO Mortgage Loans) and, further, to render such
incidental services with respect to any Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for herein. The Servicer shall not,
on behalf of the Trust, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a) and Section 3.24, the Servicer and
the Special Servicer shall each have full power and authority, acting alone or
through Sub-Servicers, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the
Servicer and the Special Servicer, in its own name, with respect to each of the
Mortgage Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and other related
collateral; and (ii) any and all instruments of satisfaction or cancellation, or
of partial or full release or discharge, and all other comparable instruments.
In addition, without limiting the generality of the foregoing, each of the
Servicer and Special Servicer is authorized and empowered by the Trustee to
execute and deliver, in accordance with the Servicing Standard and subject to
Sections 3.08, 3.20 and 3.24, any and all modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File. Subject to Section 3.10, the Trustee shall, at the written request of a
Servicing Officer of the Servicer or the Special Servicer, furnish, or cause to
be so furnished, to the Servicer or the Special Servicer, as appropriate, any
limited powers of attorney and other documents (each of which shall be prepared
by the Servicer or Special Servicer, as applicable) necessary or appropriate to
enable it to carry out its servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Servicer or the Special Servicer.
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(c) The relationship of each of the Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
The Servicer and the Special Servicer shall each undertake
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder and shall
follow such collection procedures as are consistent with the Servicing Standard;
provided, however, that neither the Servicer nor the Special Servicer shall,
with respect to any Designated ARD Loan after its Anticipated Repayment Date,
take any enforcement action with respect to the payment of Additional Interest
(other than the making of requests for its collection), unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Additional Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Mortgage Loan have been paid, the payment of such Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. Consistent with the foregoing, the Servicer and the
Special Servicer each may waive any Default Charges in connection with any
specific delinquent payment on a Mortgage Loan it is obligated to service
hereunder.
Ninety (90) days prior to the maturity date of each Balloon
Mortgage Loan, the Servicer shall send a notice to the related Mortgagor of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), in which all Escrow Payments received by it
with respect to the Mortgage Loans shall be deposited and retained. Subject to
any terms of the related Mortgage Loan documents that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) to effect the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and comparable items in respect of the
related Mortgaged Property; (ii) to reimburse the Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed
Servicing Advances made thereby to cover any of the items described in the
immediately preceding clause (i); (iii) to refund to the related Mortgagor any
sums as may be determined to be overages; (iv) to pay interest or other income,
if required and as described below, to the related Mortgagor on balances in the
Servicing Account (or, if and to the extent not payable to the related
Mortgagor, and subject to Section 3.06, to pay such interest or other income to
the Servicer); or (v) to clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. The Servicer
shall pay or cause to be paid to the Mortgagors interest and other income, if
any, earned on the investment of funds in Servicing Accounts maintained thereby,
if and to the extent required by law or the terms of the related Mortgage Loan.
If the Servicer shall deposit in a Servicing Account any amount not required to
be deposited therein, it may at any time withdraw such amount from such
Servicing Account, any provision herein to the
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contrary notwithstanding. Promptly after any Escrow Payments are received by the
Special Servicer from any Mortgagor, and in any event within two Business Days
after any such receipt, the Special Servicer shall remit such Escrow Payments to
the Servicer for deposit in the applicable Servicing Account(s).
(b) The Servicer shall as to each Mortgage Loan (including each
Specially Serviced Mortgage Loan) (i) maintain accurate records with respect to
the related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Servicer shall
apply Escrow Payments as allowed under the terms of the related Mortgage Loan
documents; provided, however, that if such Mortgage Loan does not require the
related Mortgagor to escrow for the payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items, each of the
Servicer and the Special Servicer shall, as to those Mortgage Loans it is
obligated to service hereunder, and subject to and in accordance with the
Servicing Standard, enforce the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due.
(c) In accordance with the Servicing Standard, the Servicer shall
advance with respect to each Mortgaged Property (including each Mortgaged
Property relating to a Specially Serviced Mortgage Loan) all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies, in each instance prior to the
applicable penalty or termination date (provided, however, that with respect to
any Mortgage Loan under which the related Mortgagor is not required to make
Escrow Payments for real estate taxes, the Servicer shall be required to make
such advance only upon its determination, using efforts consistent with the
Servicing Standard, that such payments have not been made), and only if and to
the extent that (x) Escrow Payments (if any) collected from the related
Mortgagor are insufficient to pay such item when due, (y) the related Mortgagor
has failed to pay such item on a timely basis and (z) the particular Advance
would not, if made, constitute a Nonrecoverable Servicing Advance. All such
Advances shall be reimbursable in the first instance from related collections
from the Mortgagors and further as provided in Section 3.05(a). No costs
incurred by the Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of such Mortgaged
Properties shall, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the respective unpaid principal
balances or Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit; provided,
however, that this sentence shall not be construed to limit the rights of the
Servicer on behalf of the Trust to enforce any obligations of the related
Mortgagor under such Mortgage Loan.
(d) The Servicer shall establish and maintain, as applicable, one
or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if any,
shall be deposited and retained. As and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, withdrawals of
amounts so deposited, and draws under any Letter of Credit delivered in lieu
thereof, may be made to pay for, or to reimburse the related Mortgagor in
connection with, the costs associated with the related tenant improvements,
leasing commissions, repairs, replacements, capital improvements and/or
environmental testing and remediation at or with respect to the related
Mortgaged Property for which such Reserve Funds were intended or such Letter of
Credit was delivered. In addition, as and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, withdrawals of
amounts so deposited, and
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draws under any Letter of Credit so delivered, may be made to prepay the
Mortgage Loan in the event certain leasing or other economic criteria are not
satisfied at the related Mortgaged Property, or to be released to the related
Mortgagor or otherwise applied for any other appropriate purpose in the event
that such criteria are satisfied. Subject to the terms of the related Mortgage
Loan documents, each Reserve Account shall be an Eligible Account. Interest and
other income, if any, earned on funds on deposit in any Reserve Account shall,
subject to Section 3.06, be for the benefit of and payable to the Servicer,
unless otherwise required to be paid to the related Mortgagor by law or the
terms of the related Mortgage Loan. Any out-of-pocket expenses incurred by the
Servicer to enable the Servicer to make any draw under any Letter of Credit
shall constitute a Servicing Advance, and the Servicer shall make reasonable
efforts to recover such expenses from the related Mortgagor to the extent the
Mortgagor is required to pay such expenses under the terms of the related
Mortgage Loan.
(e) To the extent an operations and maintenance plan is required
to be established and executed pursuant to the terms of a Mortgage Loan, the
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any action
or remediations are required to have been taken or completed pursuant to the
terms of the related Mortgage Loan documents, the Servicer shall request from
the Mortgagor written confirmation of such action and remediations within a
reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to have been taken or completed. To the
extent that a Mortgagor shall fail to promptly respond to any inquiry described
in this Section 3.03(e), the Servicer shall notify the Trustee, the Special
Servicer and the Controlling Class Representative. The Servicer shall promptly
notify the Trustee, the Special Servicer and the Controlling Class
Representative if the Servicer shall determine that any Mortgagor has failed to
perform its obligations under the related Mortgage Loan in respect of
environmental matters.
(f) Subject to applicable law and the terms of the related
Mortgage Loan documents, funds in the Servicing Accounts and the Reserve
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06.
SECTION 3.04. Collection Account and Distribution Account.
(a) The Servicer shall establish and maintain one or more
segregated accounts (collectively, the "Collection Account"), in which the funds
described below are to be deposited and held on behalf of the Trustee in trust
for the benefit of the Certificateholders. Each account that constitutes the
Collection Account shall be an Eligible Account. The Servicer shall deposit or
cause to be deposited in the Collection Account, upon receipt (in the case of
payments by Mortgagors or other collections on the Mortgage Loans) or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of the Servicer in respect of the Mortgage Pool subsequent
to the Closing Date (other than in respect of scheduled payments of principal
and interest due and payable on the Mortgage Loans on or before the Cut-off Date
(or, in the case of a Replacement Mortgage Loan, on or before the related date
of substitution), which payments shall be delivered promptly to the related
Seller or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse):
(i) all payments on account of principal of the Mortgage
Loans, including Principal Prepayments;
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(ii) all payments on account of interest on the Mortgage
Loans, including Default Interest and Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Premiums and
late payment charges received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds received
in respect of the Mortgage Loans;
(v) any amounts required to be deposited by the Servicer
pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Collection
Account;
(vi) any amounts required to be deposited by the Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection
with losses resulting from a deductible clause in a blanket or
master force place hazard policy;
(vii) any amounts required to be transferred from any REO
Account pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which
a Servicing Advance has been made.
The foregoing requirements for deposit in the Collection Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, assumption fees,
assumption application fees, extension fees, modification fees, charges for
beneficiary statements or demands and amounts collected for checks returned for
insufficient funds, need not be deposited by the Servicer in the Collection
Account. The Servicer shall promptly deliver to the Special Servicer any of the
foregoing items received by it, if and to the extent that such items constitute
Additional Special Servicing Compensation. If the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i)
through (iv) and (viii) of the first paragraph of this Section 3.04(a) with
respect to any Mortgage Loan, the Special Servicer shall promptly, but in no
event later than one Business Day after receipt, remit such amounts to the
Servicer for deposit into the Collection Account in accordance with the second
preceding paragraph, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement. With respect to any such amounts paid by check to the
order of the Special Servicer, the Special Servicer shall endorse such check to
the order of the Servicer (in its capacity as such for the Trust), without
recourse, representation or warranty, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement. Any such amounts
received by the Special Servicer with respect to an REO Property shall be
deposited by the Special Servicer into the REO Account and remitted to the
Servicer for deposit into the Collection Account pursuant to Section 3.16(c).
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(b) The Trustee shall establish and maintain one or more
segregated accounts (collectively, the "Distribution Account"), to be held in
trust for the benefit of the Certificateholders. Each account that constitutes
the Distribution Account shall be an Eligible Account. The Trustee shall
establish and maintain three sub-accounts of the Distribution Account (i) one of
which sub-accounts (such sub-account, the "REMIC Sub-Account") shall be deemed
to be held in trust for the benefit of the Holders of the Regular Interest
Certificates and the Residual Interest Certificates, (ii) one of which
sub-accounts (such sub-account, the "Class D-1 Sub-Account") shall be deemed to
be held in trust for the benefit of the Holders of the Class D-1 Certificates
and (iii) one of which sub-accounts (such sub-account, the "Class D-2
Sub-Account") shall be deemed to be held in trust for the benefit of the Holders
of the Class D-2 Certificates. On each Servicer Remittance Date, subject to
Section 3.04(c), the Servicer shall deliver to the Trustee, for deposit in the
Distribution Account, an aggregate amount of immediately available funds equal
to the Servicer Remittance Amount for such Servicer Remittance Date. Immediately
upon deposit of the Servicer Remittance Amount for any Servicer Remittance Date
into the Distribution Account, any portion thereof that represents any
Additional Interest related to the GECA Mortgage Loans shall be deemed to have
been deposited into the Class D-1 Sub-Account, any portion thereof that
represents any Additional Interest related to the Column Mortgage Loans shall be
deemed to have been deposited into the Class D-2 Sub-Account and the remaining
portion thereof shall be deemed to have been deposited into the REMIC
Sub-Account. In addition, subject to Section 3.04(c), the Servicer shall, as and
when required hereunder, deliver to the Trustee for deposit in the Distribution
Account any P&I Advances and Compensating Interest Payments required to be made
by the Servicer hereunder and any amounts required to be transferred from the
Interest Reserve Account hereunder. Furthermore, any amounts paid by any party
hereto to indemnify the Trust Fund pursuant to any provision hereof shall be
delivered to the Trustee for deposit in the Distribution Account. The Trustee
shall, upon receipt, deposit in the Distribution Account any and all amounts
received or, pursuant to Section 4.03, advanced by the Trustee or any Fiscal
Agent that are required by the terms of this Agreement to be deposited therein.
(c) The Servicer shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account") held on behalf of the
Trustee in trust for the benefit of the Certificateholders. Each account that
constitutes the Interest Reserve Account shall be an Eligible Account. On each
Distribution Date in February and, during a year that is not a leap year, in
January, prior to any distributions being made in respect of the Certificates on
such Distribution Date, the Trustee shall withdraw from the Distribution Account
and deposit in the Interest Reserve Account with respect to each Interest
Reserve Loan, an amount equal to the Interest Reserve Amount, if any, in respect
of such Interest Reserve Loan for such Distribution Date; provided that, if the
Servicer so notifies the Trustee, and in lieu of the Trustee's making the
corresponding withdrawal from the Distribution Account, the Servicer on the
Servicer Remittance Date in any such month may (but shall not be obligated to)
deduct the Interest Reserve Amount, if any, in respect of any Interest Reserve
Loan for the related Distribution Date from the interest portion of any
payments, collections or advances in respect of such Interest Reserve Loan that
would otherwise be remitted to the Trustee on such date for deposit in the
Distribution Account as part of the Servicer Remittance Amount or P&I Advances
and, if it does so, shall promptly deposit the amount so deducted in the
Interest Reserve Account and notify the Trustee of such deposit.
(d) Funds in the Collection Account and the Interest Reserve
Account may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. Funds in the Distribution Account shall remain
uninvested. The Servicer shall give notice to the other parties hereto of the
location of each of the Collection Account and the Interest Reserve Account as
of the Closing Date and of the new location of each of the Collection Account
and the Interest Reserve Account prior to any change thereof.
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The Distribution Account shall be established at the Corporate Trust Office of
the Trustee as of the Closing Date, and the Trustee shall give notice to the
other parties hereto of the new location of the Distribution Account prior to
any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Account
and the Distribution Account.
(a) The Servicer may, from time to time, make withdrawals from
the Collection Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account the Servicer Remittance Amount for each Servicer
Remittance Date and any amounts that may be applied to make P&I
Advances pursuant to Section 4.03(a);
(ii) to reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for unreimbursed P&I Advances made thereby (in each
case, with its own funds), the Servicer's, the Trustee's and any
Fiscal Agent's, as the case may be, respective rights to
reimbursement pursuant to this clause (ii) with respect to any
P&I Advance (other than Nonrecoverable P&I Advances, which are
reimbursable pursuant to clause (vii) below) being limited to
amounts that represent Late Collections of interest and principal
received in respect of the particular Mortgage Loan or REO
Mortgage Loan as to which such P&I Advance was made (net of
related Servicing Fees and Workout Fees);
(iii) to pay to itself earned and unpaid Servicing Fees in
respect of each Mortgage Loan and REO Mortgage Loan, the
Servicer's right to payment pursuant to this clause (iii) with
respect to any Mortgage Loan or REO Mortgage Loan being limited
to amounts received on or in respect of such Mortgage Loan
(whether in the form of payments, Liquidation Proceeds or
Insurance Proceeds) or such REO Mortgage Loan (whether in the
form of REO Revenues, Liquidation Proceeds or Insurance Proceeds)
that are allocable as interest thereon;
(iv) to pay to the Special Servicer, out of general
collections on the Mortgage Loans and any REO Properties, earned
and unpaid Special Servicing Fees in respect of each Specially
Serviced Mortgage Loan and REO Mortgage Loan;
(v) to pay the Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled pursuant to, and from
the sources contemplated by, the second and third paragraphs of
Section 3.11(c);
(vi) to reimburse itself, the Special Servicer, the Trustee or
any Fiscal Agent, as applicable, for any unreimbursed Servicing
Advances made thereby (in each case, with its own funds), the
Servicer's, the Special Servicer's, the Trustee's and any Fiscal
Agent's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing
Advance (other than Nonrecoverable Servicing Advances, which are
reimbursable pursuant to clause (vii) below) being limited to (A)
payments made by the related Mortgagor that are allocable to
cover the item in respect of which such Servicing Advance was
made, and (B) Liquidation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect
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of the particular Mortgage Loan or REO Property as to which such
Servicing Advance was made;
(vii) to reimburse itself, the Special Servicer, the Trustee
or any Fiscal Agent, as applicable, out of general collections on
the Mortgage Loans and any REO Properties, for any unreimbursed
Advances made thereby that have been determined to be
Nonrecoverable Advances;
(viii) to pay itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, any Advance Interest due and owing
thereto, the Servicer's, the Special Servicer's, the Trustee's or
any Fiscal Agent's, as the case may be, respective rights to
payment pursuant to this clause (viii) being limited to Default
Charges collected in respect of the Mortgage Loan or REO Mortgage
Loan as to which the related Advances were made thereby;
(ix) to the extent that the Servicer has reimbursed or is
reimbursing itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) above or pursuant to
Section 3.03(c), and insofar as payment has not already been made
pursuant to clause (viii) above, to pay itself, the Special
Servicer, the Trustee or such Fiscal Agent, as the case may be,
out of general collections on the Mortgage Loans and any REO
Properties, any related Advance Interest accrued and payable on
the portion of such Advance so reimbursed or being reimbursed;
(x) to reimburse the Trustee or any Fiscal Agent, as
applicable, out of general collections on the Mortgage Loans and
any REO Properties, for any advance made thereby pursuant to
Section 4.03(a) to cover any portion of a Servicer Remittance
Amount not remitted by the Servicer to the Trustee on or before
5:00 p.m., New York City time, on the related Servicer Remittance
Date, together with any interest accrued and payable on such
advance at the Reimbursement Rate;
(xi) to pay itself any items of Additional Servicing
Compensation on deposit in the Collection Account from time to
time;
(xii) to pay to the Special Servicer any items of Additional
Special Servicing Compensation on deposit in the Collection
Account from time to time;
(xiii) to pay any unpaid Liquidation Expenses incurred with
respect to any Mortgage Loan or REO Property, such payments to be
made solely from Liquidation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect of such Mortgage
Loan or REO Property, as the case may be;
(xiv) to pay, in accordance with Section 3.11(i), certain
servicing expenses that would, if advanced, constitute
Nonrecoverable Servicing Advances;
(xv) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for costs and expenses incurred by the
Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance);
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(xvi) to pay itself, the Special Servicer, the REMIC
Administrator, the Depositor, the Trustee, any Fiscal Agent, or
any of their respective directors, officers, employees and
agents, as the case may be, out of general collections on the
Mortgage Loans and any REO Properties, any amounts payable to any
such Person pursuant to Section 6.03, Section 7.01(b), Section
8.05 and/or Section 8.13, as applicable;
(xvii) to pay, out of general collections on the Mortgage
Loans and any REO Properties, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of
recording this Agreement in accordance with Section 11.02(a), (C)
any expense (including the reasonable fees of tax accountants and
attorneys) incurred by the REMIC Administrator pursuant to
Section 3.17(a)(iii) in connection with providing advice to the
Special Servicer, and (D) any expense incurred by the Trustee
pursuant to Section 3.23(b) in connection with obtaining
information from the Depository or Depository Participants
regarding any Book-Entry Certificate;
(xviii) to pay to the Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the REMIC Administrator or the
Depositor, as the case may be, any amount specifically required
to be paid to such Person at the expense of the Trust Fund under
any provision of this Agreement to which reference is not made in
any other clause of this Section 3.05(a), it being acknowledged
that this clause (xviii) shall not be construed to modify any
limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any
amount or the funds from which any payment or reimbursement is
permitted to be made;
(xix) to pay itself, the Special Servicer, a Seller, a Column
Third Party Originator, the Majority Controlling Class
Certificateholder or any other particular Person, as the case may
be, with respect to each Mortgage Loan, if any, previously
purchased by such Person pursuant to this Agreement, all amounts
received thereon subsequent to the date of purchase; and
(xx) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in the Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xix)
above, then the corresponding withdrawals from the Collection Account shall be
made in the following priority and subject to the following rules: (y) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (z) if the payment, reimbursement or remittance can be made from any funds
on deposit in the Collection Account, then (following any withdrawals made from
the Collection Account in accordance with the immediately preceding clause (y)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds; provided that
any reimbursements of Advances in respect of any particular Mortgage Loan or REO
Property out of the Collection Account pursuant to any of clauses (ii), (vi) and
(vii) above, and any payments of interest thereon out of the Collection Account
pursuant to either of clauses (viii) and (ix) above, shall be made (to the
extent
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of their respective entitlements to such reimbursements and/or payments): first,
to any Fiscal Agent; second, to the Trustee; and third, pro rata, to the
Servicer and Special Servicer.
The Servicer shall keep and maintain separate accounting records,
on a loan-by-loan and property-by-property basis when appropriate, in connection
with any withdrawal from the Collection Account pursuant to any of clauses (ii)
through (xix) above.
The Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Collection
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or any such third party contractor) is entitled. The Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from
the Distribution Account for each of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01;
(ii) to pay itself (whether in its capacity as Trustee or, for
so long as it acts as such, REMIC Administrator) or any of its
directors, officers, employees and agents, as the case may be,
any amounts payable or reimbursable to any such Person pursuant
to Section 8.05;
(iii) to pay any Fiscal Agent or any of its directors,
officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Sections
8.05 and 8.13(a);
(iv) to pay for the cost of the Opinions of Counsel sought by
the Trustee as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the
Trustee which amendment is in furtherance of the rights and
interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed
on any REMIC Pool or on the assets or transactions of any REMIC
Pool, together with all incidental costs and expenses, and any
and all expenses relating to tax audits, if and to the extent
that either (A) none of the parties hereto are liable therefor
pursuant to Section 10.01(b) and/or Section 10.01(f) or (B) any
such Person that may be so liable has failed to timely make the
required payment;
(vi) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans to the Interest Reserve Account as and
when required by Section 3.04(c); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
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(c) On each Servicer Remittance Date in March, the Servicer shall
withdraw from the Interest Reserve Account and remit to the Trustee for deposit
in the Distribution Account all Interest Reserve Amounts deposited in the
Interest Reserve Account in respect of the Interest Reserve Loans during January
and/or February of the same year in accordance with Section 3.04(c).
(d) The Trustee, any Fiscal Agent, the Depositor, the Servicer
and the Special Servicer shall in all cases have a right prior to the
Certificateholders to any particular funds on deposit in the Collection Account
and the Distribution Account from time to time for the reimbursement or payment
of compensation, Advances (with interest thereon at the Reimbursement Rate) and
their respective expenses hereunder (or, in the case of such expenses, to have
such funds paid directly to third party contractors from any invoices approved
by the Trustee, any Fiscal Agent, the Depositor, the Servicer or the Special
Servicer, as applicable), but only if and to the extent such compensation,
Advances (with interest) and expenses are to be reimbursed or paid from such
particular funds on deposit in the Collection Account or the Distribution
Account pursuant to the express terms of this Agreement.
SECTION 3.06. Investment of Funds in the Collection Account,
Interest Reserve Account, Servicing Accounts,
Reserve Accounts and the REO Account.
(a) The Servicer may direct (pursuant to a standing order or
otherwise) any depository institution maintaining the Collection Account, the
Interest Reserve Account or any Servicing Account or Reserve Account, and the
Special Servicer may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the REO Account, to invest, or if it is such
depository institution, may itself invest, the funds held therein (each such
account, for purposes of this Section 3.06, an "Investment Account") in (but
only in) one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement or the related
Mortgage Loan documents, as applicable; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
law and the terms of the related Mortgage Loan documents. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Servicer (with respect to Permitted Investments of
amounts in the Collection Account, the Interest Reserve Account, the Servicing
Accounts and the Reserve Accounts) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Account), acting on behalf of the
Trustee, shall (and Trustee hereby designates the Servicer and the Special
Servicer, as applicable, as the Person that shall) (i) be the "entitlement
holder" of any Permitted Investment that is a "security entitlement" and (ii)
maintain "control" of any Permitted Investment that is either a "certificated
security" or an "uncertificated security". For purposes of this Section 3.06(a),
the terms "entitlement holder," "security entitlement," "control," "certificated
security" and "uncertificated security" shall have the meanings given such terms
in Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by the Servicer or the Special Servicer shall constitute "control" by
a Person designated by, and acting on behalf of, the Trustee for purposes of
Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Servicer (in the case of the Collection Account or any Servicing
Account or Reserve Account) or the Special Servicer (in the case of the REO
Account) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day
such Permitted Investment may otherwise mature hereunder in
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an amount at least equal to the lesser of (1) all amounts then
payable thereunder and (2) the amount required to be withdrawn on
such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute
a Permitted Investment in respect of funds thereafter on deposit
in the Investment Account.
(b) Whether or not the Servicer directs the investment of funds
in the Collection Account, or the Interest Reserve Account interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of the Servicer and shall be
subject to its withdrawal in accordance with Section 3.05(a). Whether or not the
Servicer directs the investment of funds in any Servicing Account or Reserve
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for such Investment Account
for each Collection Period, shall be for the sole and exclusive benefit of the
Servicer and shall be subject to withdrawal from time to time in accordance with
Section 3.03, but only if and to the extent not required to be paid to the
related Mortgagor pursuant to applicable law or the terms of the related
Mortgage Loan. Whether or not the Special Servicer directs the investment of
funds in the REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account (other than a loss
of what would otherwise have constituted investment earnings) and such loss is
not paid by a Mortgagor, the Servicer (in the case of the Collection Account,
the Interest Reserve Account or any Servicing Account or Reserve Account) and
the Special Servicer (in the case of the REO Account) shall promptly deposit
therein from its own funds, without right of reimbursement, no later than the
end of the Collection Period during which such loss was incurred, the amount of
the Net Investment Loss, if any, for such Collection Period (or, in the case of
a Servicing Account or Reserve Account, the entire amount of such loss).
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment, and if the Servicer (if such default
is in respect of a Permitted Investment of funds in the Collection Account, the
Interest Reserve Account or in any Reserve Account or Servicing Account) or the
Special Servicer (if such default is in respect of a Permitted Investment of
funds in the REO Account), as applicable, is in default of its obligations under
Section 3.06(b), the Trustee may, and, subject to Section 8.02, upon the request
of Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class of Regular Interest Certificates, the Trustee shall, take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate legal proceedings. Any
costs incurred by the Trustee in taking any such action shall be reimbursed to
it by the Servicer if the default is in respect of a Permitted Investment of
funds in the Collection Account or in any Reserve Account or Servicing Account
or by the Special Servicer if the default is in respect of a Permitted
Investment of funds in the REO Account. This provision is in no way intended to
limit any actions that the Servicer or Special Servicer may take in this regard
at its own expense.
(d) Amounts on deposit in the Distribution Account shall remain
uninvested.
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(e) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including the
calculation of the Available Distribution Amount and the Servicer Remittance
Amount, the amounts so invested shall be deemed to remain on deposit in such
Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Servicer shall cause to be maintained for each Mortgaged
Property (including each Mortgaged Property relating to any Specially Serviced
Mortgage Loan) all insurance coverage as is required under the related Mortgage;
provided that if and to the extent that any such Mortgage permits the holder
thereof any discretion (by way of consent, approval or otherwise) as to the
insurance coverage that the related Mortgagor is required to maintain, the
Servicer shall exercise such discretion in a manner consistent with the
Servicing Standard, with a view towards requiring insurance comparable to that
required under other Mortgage Loans with express provisions governing such
matters; and provided, further, that, if and to the extent that a Mortgage so
permits, the related Mortgagor shall be required to obtain the required
insurance coverage from Qualified Insurers that, in each case, have a
claims-paying rating no lower than two rating categories below the highest rated
Certificates outstanding, and in any event no lower than "BBB" from S&P and "A"
from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX" or
better from A.M. Best). Subject to Section 3.17(b), the Special Servicer shall
also cause to be maintained for each REO Property no less insurance coverage (to
the extent available at commercially reasonable rates) than was previously
required of the Mortgagor under the related Mortgage and, at a minimum, (i)
hazard insurance with a replacement cost rider, (ii) business interruption or
rental loss insurance for at least 12 months, and (iii) commercial general
liability insurance, in each case, in an amount customary for the type and
geographic location of such REO Property and consistent with the Servicing
Standard; provided that all such insurance shall be obtained from Qualified
Insurers that, in each case, shall have a claims-paying rating no lower than two
rating categories below the highest rated Certificates outstanding, and in any
event no lower than "BBB" from S&P and "A" from Fitch (if then rated by Fitch;
and, if not then rated by Fitch, "A:IX" from A.M. Best) (or in such other form
and amount or issued by an insurer with such other claims-paying ability as
would not, as confirmed in writing by each Rating Agency, result in an Adverse
Rating Event). All such insurance policies shall contain (if they insure against
loss to property) a "standard" mortgagee clause, with loss payable to the
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans), or shall name the Trustee as the insured, with loss
payable to the Special Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of REO Properties), and shall be issued by an
insurer authorized under applicable law to issue such insurance. Any amounts
collected by the Servicer or the Special Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with the Servicing Standard) shall be deposited in the
Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the
case of amounts received in respect of a Mortgage Loan, or in the REO Account,
subject to withdrawal pursuant to Section 3.16(c), in the case of amounts
received in respect of an REO Property. Any cost incurred by the Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including calculating monthly distributions to Certificateholders, be
added to unpaid principal balance or Stated Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
provided, however, that this sentence shall not limit the rights of the Servicer
on behalf of the Trust to enforce any obligations of the related Mortgagor under
such Mortgage Loan.
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(b) If the Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force place policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer,
then, to the extent such policy (i) is obtained from a Qualified Insurer having
a claims-paying rating no lower than "A" from S&P and "A" from Fitch (if then
rated by Fitch; and, if not then rated by Fitch, "A:IX" from A.M. Best) or is
issued by an insurer with such other claims-paying ability as would not, as
confirmed in writing by each Rating Agency, result in an Adverse Rating Event),
and (ii) provides protection equivalent to the individual policies otherwise
required, the Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties, as applicable. Such policy may contain a deductible clause (not in
excess of a customary amount), in which case the Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been maintained on the
related Mortgaged Property or REO Property a hazard insurance policy complying
with the requirements of Section 3.07(a), and there shall have been one or more
losses that would have been covered by such an individual policy, promptly
deposit into the Collection Account from its own funds the amount not otherwise
payable under the blanket or master force place policy in connection with such
loss or losses because of such deductible clause to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan (or, in the absence of any such deductible limitation, the
deductible limitation for an individual policy which is consistent with the
Servicing Standard). The Servicer or the Special Servicer, as appropriate, shall
prepare and present, on behalf of itself, the Trustee and Certificateholders,
claims under any such blanket or master force place policy in a timely fashion
in accordance with the terms of such policy.
(c) Each of the Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans or REO Properties exist as part of the Trust Fund) keep
in force with a Qualified Insurer having a claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "BBB" from S&P and "A" from Fitch (if then rated by
Fitch; and, if not then rated by Fitch,"A:IX" from A.M. Best), a fidelity bond
in such form and amount or issued by an insurer with such other claims-paying
ability rating as would permit it to be a qualified FNMA seller-servicer of
multifamily mortgage loans (or in such other form and amount as would not result
in an Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by each Rating Agency)). Each of the
Servicer and the Special Servicer shall be deemed to have complied with the
foregoing provision if an Affiliate thereof has such fidelity bond coverage and,
by the terms of such fidelity bond, the coverage afforded thereunder extends to
the Servicer or the Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be cancelled without ten days' prior written
notice to the Trustee.
Each of the Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep
in force with a Qualified Insurer having a claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "BBB" from S&P and "A" from Fitch (if then rated by
Fitch; and, if not then rated by Fitch, "A:IX" from A.M. Best), a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its servicing obligations
hereunder, which policy or policies shall be in such form and amount as would
permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans
(or in such other form and amount or issued by an insurer with such other claims
paying ability rating as would not result in an Adverse Rating Event with
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respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency)). Each of the Servicer and the Special Servicer
shall be deemed to have complied with the foregoing provisions if an Affiliate
thereof has such insurance and, by the terms of such policy or policies, the
coverage afforded thereunder extends to the Servicer or the Special Servicer, as
the case may be. Any such errors and omissions policy shall provide that it may
not be cancelled without ten days' prior written notice to the Trustee.
For so long as the long-term debt obligations of the Servicer or
Special Servicer, as the case may be (or, in the case of the initial Servicer
and Special Servicer, their respective direct or indirect parent), are rated at
least "A" or the equivalent by each of the Rating Agencies (or, in the case of
either Rating Agency, such lower rating as will not result in qualification,
downgrade or withdrawal of any of the ratings then assigned to the Certificates
by such Rating Agency, as evidenced in writing by such Rating Agency), such
Person may self-insure with respect to the risks described in this Section
3.07(c).
SECTION 3.08. Enforcement of Alienation Clauses.
The Servicer (with respect to Mortgage Loans other than Specially
Serviced Mortgage Loans) and the Special Servicer (with respect to Specially
Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record,
shall evaluate any right to transfer and shall enforce the restrictions
contained in any Mortgage on transfers or further encumbrances of the related
Mortgaged Property and on transfers of interests in the related Mortgagor,
unless the Servicer or the Special Servicer, as appropriate, has determined, in
its reasonable, good faith judgment, that waiver of such restrictions would be
in accordance with the Servicing Standard; provided that neither the Servicer
nor the Special Servicer shall waive any right it has, or grant any consent it
is otherwise entitled to withhold, under any related "due-on-encumbrance" clause
(or, if it involves any Mortgage Loan that, together with all other Mortgage
Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage
Loan or have the same Mortgagor as such Mortgage Loan or have Mortgagors that
are known to be affiliated with the Mortgagor under such Mortgage Loan,
represents 2% or more of the Initial Pool Balance, under any related
"due-on-sale" clause) until it has received written confirmation from each
Rating Agency that such action would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates. After having made any such
determination, the Servicer or the Special Servicer, as appropriate, shall
deliver to the Trustee and the Servicer an Officer's Certificate setting forth
the basis for such determination. The Servicer and the Special Servicer shall
each provide the other with all information as each may reasonably request in
order to make such determination. Notwithstanding the foregoing, neither the
Servicer nor the Special Servicer shall (to the extent that it is within the
control thereof to prohibit such event) consent to the transfer of any Mortgaged
Property which secures a Cross- Collateralized Group unless all of the Mortgaged
Properties securing such Cross-Collateralized Group are transferred
simultaneously by the respective Mortgagor.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Mortgage Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Servicer nor the Special Servicer shall, with respect
to any Designated ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection)
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unless (i) the taking of an enforcement action with respect to the payment of
other amounts due under such Mortgage Loan is, in the good faith and reasonable
judgment of the Special Servicer, and without regard to such Additional
Interest, also necessary, appropriate and consistent with the Servicing Standard
or (ii) all other amounts due under such Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated Advance Interest. In connection with
the foregoing, in the event of a default under any Mortgage Loan or Cross-
Collateralized Group that is secured by real properties located in multiple
states, and such states include California or another state with a statute, rule
or regulation comparable to California's "one action rule", then the Special
Servicer shall consult Independent counsel regarding the order and manner in
which the Special Servicer should foreclose upon or comparably proceed against
such properties. The reasonable costs of such consultation shall be paid by, and
reimbursable to, the Special Servicer as a Servicing Advance. In addition, all
costs and expenses incurred in any such proceedings shall be paid by, and
reimbursable to, the Special Servicer as a Servicing Advance. Nothing contained
in this Section 3.09 shall be construed so as to require the Special Servicer,
on behalf of the Trust, to make a bid on any Mortgaged Property at a foreclosure
sale or similar proceeding that is in excess of the fair market value of such
property, as determined by the Special Servicer taking into account the factors
described in Section 3.18(e) and the results of any appraisal obtained pursuant
to the following sentence or otherwise, all such bids to be made in a manner
consistent with the Servicing Standard. If and when the Special Servicer deems
it necessary in accordance with the Servicing Standard for purposes of
establishing the fair market value of any Mortgaged Property securing a
defaulted Mortgage Loan, whether for purposes of bidding at foreclosure or
otherwise, the Special Servicer is authorized to have an Appraisal completed
with respect to such property (the cost of which appraisal shall be covered by,
and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust under such circumstances, in such manner or pursuant to such terms as
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such REO Property that is not treated as "foreclosure property" and
that is held by REMIC I at any given time constitutes not more than a de minimis
amount of the assets of REMIC I within the meaning of Treasury regulation
Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section
3.17(a), subject the Trust to the imposition of any federal income taxes under
the Code. In addition, the Special Servicer shall not acquire any personal
property on behalf of the Trust pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired
by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and reimbursable
as, a Servicing Advance) to the effect that the holding of such
personal property as part of the Trust Fund will not result in an
Adverse REMIC Event with respect to any REMIC Pool.
(c) Notwithstanding the foregoing provisions of this Section
3.09, the Special Servicer shall not, on behalf of the Trust, obtain title to
any Mortgaged Property by foreclosure, deed in lieu of foreclosure or otherwise,
have a receiver of rents appointed with respect to any Mortgaged Property or
take any other action with respect to any Mortgaged Property, if, as a result of
any such action, the Trustee, on
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behalf of the Certificateholders, could, in the reasonable, good faith judgment
of the Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless:
(i) the Special Servicer has previously determined in
accordance with the Servicing Standard, based on a Phase I
Environmental Assessment (and any additional environmental
testing that the Special Servicer deems necessary and prudent) of
such Mortgaged Property conducted by an Independent Person who
regularly conducts Phase I Environmental Assessments and
performed during the twelve-month period preceding any such
acquisition of title or other action, that the Mortgaged Property
is in compliance with applicable environmental laws and
regulations and there are no circumstances or conditions present
at the Mortgaged Property relating to the use, management or
disposal of Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be
required under any applicable environmental laws and regulations;
or
(ii) in the event that the determination described in clause
(c)(i) above cannot be made, the Special Servicer has previously
determined in accordance with the Servicing Standard, on the same
basis as described in clause (c)(i) above, that it would maximize
the recovery to the Certificateholders on a present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the
related Net Mortgage Rate) to acquire title to or possession of
the Mortgaged Property and to take such remedial, corrective
and/or other further actions as are necessary to bring the
Mortgaged Property into compliance with applicable environmental
laws and regulations and to appropriately address any of the
circumstances and conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Servicer and
the Controlling Class Representative, specifying all of the bases for such
determination, such Officer's Certificate to be accompanied by all related
environmental reports. The cost of such Phase I Environmental Assessment and any
such additional environmental testing shall be advanced by the Servicer at the
direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (ii) of the preceding paragraph, shall be payable out of
the Collection Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and
(ii) of the first sentence of Section 3.09(c) has been satisfied with respect to
any Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, subject to Section 3.24, release all
or a portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the
Servicer and the Controlling Class Representative monthly in writing as to any
actions taken by the Special Servicer with respect to any
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Mortgaged Property as to which neither of the conditions set forth in clauses
(i) and (ii) of the first sentence of Section 3.09(c) has been satisfied, in
each case until the earliest to occur of satisfaction of either of such
conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Mortgage Loan's becoming a Corrected Mortgaged Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Special Servicer shall prepare and file information
returns with respect to the receipt of mortgage interest received in a trade or
business from individuals, reports of foreclosures and abandonments of any
Mortgaged Property and information returns relating to cancellation of
indebtedness income with respect to any Mortgaged Property required by Sections
6050H, 6050J and 6050P of the Code and shall deliver to the Trustee and the
REMIC Administrator an Officer's Certificate stating that such reports have been
filed. Such information returns and reports shall be in form and substance
sufficient to meet the reporting requirements imposed by Sections 6050H, 6050J
and 6050P of the Code. The Servicer shall promptly provide to the Special
Servicer on a timely basis all information in the Servicer's possession to be
included in such reports and information returns.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee, the Servicer and the Controlling Class
Representative. The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each such Final Recovery Determination (if any) and
the basis thereof. Each such Final Recovery Determination (if any) shall be
evidenced by an Officer's Certificate delivered to the Trustee and the Servicer
no later than the third Business Day following such Final Recovery
Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt
by the Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Servicer shall promptly so notify the
Trustee and request delivery to it of the related Mortgage File (such notice and
request to be effected by delivering to the Trustee a Request for Release in the
form of Exhibit D-1 attached hereto, which Request for Release shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.04(a) have been or will be so
deposited). Upon receipt of such Request for Release, the Trustee shall promptly
release, or cause any related Custodian to release, the related Mortgage File to
the Servicer and shall execute and deliver to the Servicer any instrument of
release or discharge that was delivered by the Servicer to the Trustee for
execution in connection with such payment or escrow. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Collection Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Servicer or the Special Servicer shall
otherwise require any Mortgage File (or any portion thereof), then, upon request
of the Servicer and receipt from the Servicer of a Request for Release in the
form of Exhibit D-1 attached hereto signed by a Servicing Officer thereof, or
upon request of the Special Servicer and receipt from the Special Servicer of a
Request for Release in the form of Exhibit D-2 attached hereto,
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the Trustee shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Servicer or the Special Servicer, as
the case may be. Upon return of such Mortgage File (or portion thereof) to the
Trustee or the related Custodian, or upon the Special Servicer's delivery to the
Trustee of an Officer's Certificate stating that (i) such Mortgage Loan was
liquidated and all amounts received or to be received in connection with such
liquidation that are required to be deposited into the Collection Account
pursuant to Section 3.04(a) have been or will be so deposited or (ii) such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be returned by the Trustee to the Servicer or the Special Servicer, as
applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust,
the Servicer or the Special Servicer; provided that the Trustee may
alternatively execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, a limited power of attorney issued in
favor of the Special Servicer and empowering the Special Servicer to execute and
deliver any or all of such pleadings or documents on behalf of the Trustee
(however, the Trustee shall not be liable for any misuse of such power of
attorney by the Special Servicer). Together with such pleadings or documents (or
such power of attorney empowering the Special Servicer to execute the same on
behalf of the Trustee), the Special Servicer shall deliver to the Trustee an
Officer's Certificate requesting that such pleadings or documents (or such power
of attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing
Advances; Payment of Certain Expenses; Obligations
of the Trustee and any Fiscal Agent regarding
Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Servicer
shall be entitled to receive the Servicing Fee with respect to each Mortgage
Loan (including each Specially Serviced Mortgage Loan) and each REO Mortgage
Loan. As to each such Mortgage Loan and REO Mortgage Loan, the Servicing Fee
shall accrue from time to time (on a 30/360 Basis) at the Servicing Fee Rate on
the same principal amount as interest accrues from time to time on such Mortgage
Loan or is deemed to accrue from time to time on such REO Mortgage Loan. The
Servicing Fee with respect to any Mortgage Loan or REO Mortgage Loan shall cease
to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid
Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments
of interest on each Mortgage Loan and REO Revenues allocable as interest on each
REO Mortgage Loan. The Servicer shall be entitled to recover unpaid Servicing
Fees in respect of any Mortgage Loan or REO Mortgage Loan out of the portion any
related Insurance Proceeds or Liquidation Proceeds allocable as interest on such
Mortgage Loan or REO Mortgage Loan, as the case may be. The right to receive the
Servicing Fee may not be transferred in whole
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or in part except in connection with the transfer of all of the Servicer's
responsibilities and obligations under this Agreement.
(b) The Servicer shall be entitled to receive as additional
servicing compensation (the following items, collectively, "Additional Servicing
Compensation"):
(i) to the extent allocable to any Mortgage Loan for a period
that it is not a Specially Serviced Mortgage Loan or an REO
Mortgage Loan, any Net Default Charges collected on such Mortgage
Loan;
(ii) any assumption fees, assumption application fees,
modification fees, extension fees, charges for beneficiary
statements or demands, amounts collected for checks returned for
insufficient funds and other loan processing fees actually paid
by a Mortgagor with respect to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan, other than 25% of any
modification fees actually received on or with respect to any
Mortgage Loan that is not a Specially Serviced Mortgage Loan in
connection with a modification, waiver, amendment or consent to
which the Servicer requested the Special Servicer's consent
pursuant to Section 3.20(a)(i);
(iii) any Prepayment Interest Excesses collected on the
Mortgage Loans; and
(iv) interest or other income earned on deposits in the
Investment Accounts maintained by the Servicer, in accordance
with Section 3.06(b) (but only to the extent of the Net
Investment Earnings, if any, with respect to any such Investment
Account for each Collection Period and, in the case of a
Servicing Account or Reserve Account, only to the extent such
interest or other income is not required to be paid to any
Mortgagor under applicable law or under the related Mortgage).
To the extent that amounts described in clause (ii) of the
preceding paragraph are collected by the Special Servicer with respect to
Mortgage Loans other than Specially Serviced Mortgage Loans, the Special
Servicer shall promptly pay such amounts to the Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As
to each Specially Serviced Mortgage Loan and REO Mortgage Loan, the Special
Servicing Fee shall accrue from time to time (on a 30/360 Basis) at the Special
Servicing Fee Rate on the same principal amount as interest accrues from time to
time on such Mortgage Loan or is deemed to accrue from time to time on such REO
Mortgage Loan. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Mortgage Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage
Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each collection of interest and principal (net of related unpaid or
unreimbursed Servicing Fees,
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Special Servicing Fees, Advances and Advance Interest) received on such Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee will become payable if
and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the
Special Servicer is terminated other than for cause or resigns in accordance
with Section 6.04, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans during
the period that it acted as Special Servicer and that were still Corrected
Mortgage Loans at the time of such termination or resignation (and the successor
Special Servicer shall not be entitled to any portion of such Workout Fees), in
each case until the Workout Fee for any such loan ceases to be payable in
accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any full or discounted payoff from the related Mortgagor or any Liquidation
Proceeds or Insurance Proceeds (other than in connection with the purchase of
any such Specially Serviced Mortgage Loan or REO Property by the Servicer, the
Special Servicer or a Majority Controlling Class Certificateholder pursuant to
Section 3.18 or Section 9.01, or the purchase or replacement thereof by a Column
Third Party Originator pursuant to the related Column Third Party Originator
Agreement or the purchase or replacement thereof by a Seller pursuant to the
related Mortgage Loan Purchase and Sale Agreement). As to each such Specially
Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable out
of, and shall be calculated by application of the Liquidation Fee Rate to, such
full or discounted payoff, Liquidation Proceeds and/or Insurance Proceeds (in
each case net of any portion of such payment or proceeds that constitutes late
payment charges or that is payable or reimbursable to the Servicer, the Special
Servicer or the Trustee to cover related unpaid or unreimbursed Servicing Fees,
Special Servicing Fees, Advances and/or Advance Interest) received or collected
with respect to such Specially Serviced Mortgage Loan or REO Property. The
Liquidation Fee with respect to any such Specially Serviced Mortgage Loan will
not be payable if such Mortgage Loan becomes a Corrected Mortgage Loan.
Notwithstanding anything herein to the contrary, no Liquidation Fee will be
payable in connection with the receipt of, or out of, Liquidation Proceeds
collected as a result of the purchase or substitution of any Specially Serviced
Mortgage Loan or REO Property described in the parenthetical to the first
sentence of this paragraph.
The Special Servicer's right to receive the Special Servicing
Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive as
additional special servicing compensation (the following items, collectively,
the "Additional Special Servicing Compensation"):
(i) to the extent allocable to any Mortgage Loan for the
period that it is a Specially Serviced Mortgage Loan or after it
has become an REO Mortgage Loan, any Net Default Charges
collected on such Mortgage Loan or REO Mortgage Loan
(ii) any assumption fees, assumption application fees,
modification fees, extension fees, charges for beneficiary
statements or demands and amounts collected for checks returned
for insufficient funds that are actually received on or with
respect to Specially Serviced Mortgage Loans or REO Mortgage
Loans, and 25% of any modification fees actually received on or
with
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respect to any Mortgage Loan that is not a Specially Serviced
Mortgage Loan in connection with a modification, waiver,
amendment or consent to which the Servicer requested the Special
Servicer's consent pursuant to Section 3.20(a)(i); and
(iii) interest or other income earned on deposits in the REO
Account, if established, in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with
respect to the REO Account for each Collection Period).
To the extent that amounts described in clause (ii) of the
preceding paragraph are collected by the Servicer with respect to Specially
Serviced Mortgage Loans, the Servicer shall promptly pay such amounts to the
Special Servicer and shall not be required to deposit such amounts in the
Collection Account pursuant to Section 3.04(a).
(e) The Servicer and the Special Servicer shall each be required
(subject to Section 3.11(h) below) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts due and owing to any of Sub-Servicers
retained by it and the premiums for any blanket policy or the standby fee or
similar premium for any master force place policy obtained by it insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Collection Account or the REO
Account, and neither the Servicer nor the Special Servicer shall be entitled to
reimbursement for any such expense incurred by it except as expressly provided
in this Agreement.
(f) If the Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within 15 days after
such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Servicer or Special Servicer, as
the case may be, give notice of such failure, as applicable, to the Servicer and
the Special Servicer. If such Advance is not made by the Servicer or the Special
Servicer within three Business Days after such notice, then (subject to Section
3.11(h) below) the Trustee or a Fiscal Agent appointed thereby shall make such
Advance. If any Fiscal Agent makes any such Servicing Advance, the Trustee shall
be deemed not to be in default under this Agreement for failing to do so.
(g) The Servicer, the Special Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds) for so long as such Servicing Advance
is outstanding, such interest to be payable: (i) at any time, out of Default
Charges collected on or in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance relates; and (ii) to the extent that
such Default Charges are insufficient, but only with respect to that portion of
the related Servicing Advance that has been or is being reimbursed pursuant to
this Agreement, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Collection Account. The Servicer shall reimburse
itself, the Special Servicer, the Trustee or any Fiscal Agent, as appropriate,
for any Servicing Advance made by any such Person as soon as practicable after
funds available for such purpose are deposited in the Collection Account.
(h) Notwithstanding anything to the contrary set forth herein,
none of the Servicer, the Special Servicer, the Trustee or any Fiscal Agent
shall be required to make any Servicing Advance that it determines in its
reasonable, good faith judgment would constitute a Nonrecoverable Servicing
Advance. The determination by any Person with an obligation hereunder to make
Servicing Advances that it has made
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a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made by such
Person in its reasonable, good faith judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Depositor and the Trustee
(unless it is the Person making such determination), which shall provide a copy
thereof to the Controlling Class Representative and, if not already included
among the foregoing, any Majority Controlling Class Certificateholder, setting
forth the basis for such determination, accompanied by a copy of an Appraisal of
the related Mortgaged Property or REO Property performed within the twelve
months preceding such determination, and further accompanied by any other
information, including engineers' reports, environmental surveys or similar
reports, that such Person may have obtained and that support such determination.
Notwithstanding the foregoing, the Trustee and any Fiscal Agent shall be
entitled to conclusively rely on any determination of nonrecoverability that may
have been made by the Servicer or the Special Servicer with respect to a
particular Servicing Advance, and the Servicer and the Special Servicer shall
each be entitled to conclusively rely on any determination of nonrecoverability
that may have been made by the other such party with respect to a particular
Servicing Advance. A copy of any such Officer's Certificate (and accompanying
information) of the Servicer shall also be delivered promptly to the Special
Servicer, a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Servicer, and a copy of any such Officer's Certificates (and accompanying
information) of the Trustee or the Fiscal Agent shall also be promptly delivered
to the Servicer and the Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein,
the Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Collection Account any servicing expense that, if paid by the Servicer or the
Special Servicer, would constitute a Nonrecoverable Servicing Advance; provided
that the Servicer (or the Special Servicer, if a Specially Serviced Mortgage
Loan or an REO Property is involved) has determined in accordance with the
Servicing Standard that making such payment is in the best interests of the
Certificateholders (as a collective whole), as evidenced by an Officer's
Certificates delivered promptly to the Depositor and the Trustee, which shall
provide a copy thereof to the Controlling Class Representative and, if not
already included among the foregoing, any Majority Controlling Class
Certificateholder, setting forth the basis for such determination and
accompanied by any information that such Person may have obtained that supports
such determination. A copy of any such Officer's Certificate (and accompanying
information) of the Servicer shall also be delivered promptly to the Special
Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Servicer.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Mortgage Loan becomes a
Specially Serviced Mortgage Loan, and the Special Servicer shall be entitled to
reimbursement of the reasonable and direct out-of-pocket travel expenses
incurred by it in connection therewith. Without limiting the generality of the
preceding sentence, prior to conducting any such inspection, the Special
Servicer shall notify the Controlling Class Representative and allow the
Controlling Class Representative the reasonable opportunity, at its own expense,
to participate in such inspection. Beginning in 1999, the Servicer shall at its
expense perform or cause to be performed an inspection of each Mortgaged
Property at least once per calendar year (or, in the case of each Mortgage Loan
with a Stated Principal Balance of under $2,000,000, once every two years), if
the Special Servicer has not already done so during
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that period pursuant to the preceding sentence (it being understood and agreed
that the Servicer will inspect each and every Mortgaged Property in 1999). The
Servicer and the Special Servicer shall each prepare a written report of each
such inspection performed by it or on its behalf that sets forth in detail the
condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Servicer or Special Servicer, as applicable, is aware, (ii) any change
in the condition, occupancy or value of the Mortgaged Property that the Servicer
or the Special Servicer, as applicable, in accordance with the Servicing
Standard, considers material, or (iii) any waste committed on the Mortgaged
Property that the Servicer or the Special Servicer, as the case may be, in
accordance with the Servicing Standard, considers material. The Servicer and the
Special Servicer shall each deliver to the Trustee, the Depositor and each other
a copy (or image in suitable electronic media) of each such written report
prepared by it within 60 days of completion of the related inspection. The
Trustee shall deliver to the Underwriter, the Controlling Class Representative
and, upon request thereby, any Certificateholder verified as such by the
Trustee, a copy (or image in suitable electronic media) of each such written
report prepared by the Servicer or the Special Servicer, promptly following the
Trustee's receipt of such report.
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicer, in the case of all other Mortgage Loans, shall
make reasonable efforts to collect promptly from each related Mortgagor
quarterly and annual operating statements, budgets and rent rolls of the related
Mortgaged Property, and financial statements of such Mortgagor, whether or not
delivery of such items is required pursuant to the terms of the related
Mortgage. In addition, the Special Servicer shall cause quarterly and annual
operating statements, budgets and rent rolls to be regularly prepared in respect
of each REO Property and shall collect all such items promptly following their
preparation. The Servicer and the Special Servicer shall each deliver copies of
all of the foregoing items so collected thereby to the Trustee, the Depositor
and each other, in each case within 60 days of its receipt thereof. The Trustee
shall deliver, upon request, copies of the foregoing items to the Underwriter
and the Controlling Class Representative (and, if the Majority Controlling Class
Certificateholder has theretofore delivered to the Trustee a certification
substantially in the form of Exhibit L-1 hereto, the Majority Controlling Class
Certificateholder (if any)), promptly following the Trustee's receipt of such
items from the Servicer or the Special Servicer.
Within 45 days after receipt by the Servicer (from the Special
Servicer in the case of Specially Serviced Mortgage Loans and REO Properties) of
any annual operating statements or rent rolls with respect to any Mortgaged
Property or REO Property, the Servicer shall, based upon such operating
statements or rent rolls, prepare (or, if previously prepared, update) the
written analysis of operations (the "Operating Statement Analysis") to be
maintained by the Servicer with respect to such Mortgaged Property and REO
Property and shall forward a copy thereof to the Trustee and the Special
Servicer, together with such operating statements or rent rolls. The Trustee
shall deliver to the Controlling Class Representative and, upon request thereby,
any Certificateholder and any Certificate Owner who has delivered a
certification in accordance with Section 5.06, a copy of such Operating
Statement Analysis (or update thereof) and operating statements or rent rolls,
promptly following the Trustee's receipt thereof from the Servicer. The Servicer
shall maintain an Operating Statement Analysis with respect to each Mortgaged
Property and REO Property. Each such Operating Statement Analysis shall be in
CSSA format and set forth the information as provided for in Exhibit E-8
attached hereto. The Servicer or the Special Servicer, as the case may be, may
include any reasonable disclaimer with respect to the accuracy of any
information furnished by the Mortgagor.
Within 45 days after receipt by the Servicer or ten days after
receipt by the Special Servicer of any annual operating statements with respect
to any Mortgaged Property or REO Property, as applicable,
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each of the Servicer and the Special Servicer shall prepare or update (and, in
the case of the Special Servicer, forward to the Servicer) an NOI Adjustment
Worksheet for such Mortgaged Property or REO Property (with the annual operating
statements attached thereto as an exhibit).
(c) Not later than 2:00 p.m. (New York City time) on the second
Business Day following the end of each calendar month, the Special Servicer
shall prepare and deliver or cause to be delivered to the Servicer and the
Controlling Class Representative the following reports with respect to the
Specially Serviced Mortgage Loans and any REO Properties, providing the required
information as of the end of such calendar month: (i) a CSSA Property File
Report; and (ii) a CSSA Loan File Report. At or before 11:59 p.m. (New York City
time) on the first Business Day following each Determination Date, the Special
Servicer shall prepare and deliver or cause to be delivered to the Servicer the
following reports with respect to the Specially Serviced Mortgage Loans and any
REO Properties, providing the required information as of such Determination
Date: (i) a Delinquent Loan Status Report; (ii) a Comparative Financial Status
Report; (iii) an Historical Loss Estimate Report; (iv) an Historical Loan
Modification Report; and (v) an REO Status Report.
(d) Not later than 2:00 p.m. (New York City time) on the second
Business Day after each Determination Date, the Servicer shall prepare (if and
to the extent necessary) and deliver or cause to be delivered to the Trustee:
(i) the most recent Delinquent Loan Status Report, Historical Loss Estimate
Report, Historical Loan Modification Report and REO Status Report received from
the Special Servicer pursuant to Section 3.12(c); (ii) the most recent CSSA
Property File Report, CSSA Loan File Report and Comparative Financial Status
Report (in each case combining the reports prepared by the Special Servicer and
the Servicer); and (iii) a Watch List Report with information that is current as
of such Determination Date.
(e) The Special Servicer shall deliver to the Servicer the
reports set forth in Section 3.12(c) and the Servicer shall deliver to the
Trustee the reports set forth in Section 3.12(d) in an electronic format
reasonably acceptable to the Special Servicer and the Servicer with respect to
the reports set forth in Section 3.12(c), and the Servicer and the Trustee with
respect to the reports set forth in Section 3.12(d). The Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer pursuant to Section 3.12(c). The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Servicer pursuant to
Section 3.12(d). In the case of information or reports to be furnished by the
Servicer to the Trustee pursuant to Section 3.12(d), to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.12(c) and to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(c), the Servicer
shall have no obligation to provide such information or reports until it has
received such information or reports from the Special Servicer, and the Servicer
shall not be in default hereunder due to a delay in providing the reports
required by Section 3.12(d) caused by the Special Servicer's failure to timely
provide any report required under Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Servicer or the Special Servicer as
the case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or Mortgaged Properties. The Servicer or the Special Servicer may affix to
any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
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(g) The Depositor shall provide to the Servicer and the Trustee
the initial data (as of the Cut-Off Date or the most recent earlier date for
which such data is available) contemplated by the CSSA Loan File Report and the
CSSA Property File Report.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer shall deliver to
the Trustee, the Depositor, the Underwriter, the Controlling Class
Representative and each other, on or before March 15 of each year, beginning in
1999, an Officer's Certificate (the "Annual Performance Certification") stating,
as to the signer thereof, that (i) a review of the activities of the Servicer or
the Special Servicer, as the case may be, during the preceding calendar year and
of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Servicer or the Special Servicer, as the case may be, has fulfilled all of
its obligations under this Agreement in all material respects throughout such
year (or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof), and (iii) the Servicer or the Special Servicer, as the case may be,
has received no notice regarding the qualification, or challenging the status,
of any REMIC Pool as a REMIC or of either Grantor Trust D-1 or Grantor Trust D-2
as a Grantor Trust from the IRS or any other governmental agency or body (or, if
it has received any such notice, specifying the details thereof).
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning in 1999, each of
the Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor and each other, to the effect that such
firm has examined the servicing operations of the Servicer or the Special
Servicer, as the case may be, for the previous calendar year and that, on the
basis of such examination, conducted substantially in compliance with USAP, such
firm confirms that the Servicer or the Special Servicer, as the case may be,
complied with the minimum servicing standards identified in USAP, in all
material respects, except for such significant exceptions or errors in records
that, in the opinion of such firm, the USAP requires it to report; provided that
each of the Servicer and the Special Servicer shall not be required to cause the
delivery of its Annual Accountants' Report until April 15 in any given year so
long as it has received written confirmation from the Depositor that a Report on
Form 10-K is not required to be filed in respect of the Trust for the preceding
calendar year. In rendering its report such firm may rely, as to matters
relating to the direct servicing of securitized commercial and multifamily
mortgage loans by sub-servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within one year of such report)
with respect to those sub-servicers.
The Servicer and the Special Servicer will each reasonably
cooperate with the Depositor in providing any other form of accountants' reports
as may be required by the Commission in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act, and the
reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
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SECTION 3.15. Access to Certain Information.
Each of the Servicer and the Special Servicer shall afford to the
Trustee, any Fiscal Agent, the Depositor, the Underwriter, each Rating Agency
and the Controlling Class Representative, and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any records regarding the
Mortgage Loans and the servicing thereof within its control, except to the
extent it is prohibited from doing so by applicable law, the terms of the
Mortgage Loan documents or contract entered into prior to the Closing Date or to
the extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Servicer or the Special Servicer, as the
case may be, designated by it. The Servicer and the Special Servicer shall each
be entitled to affix a reasonable disclaimer to any information provided by it
for which it is not the original source (without suggesting liability on the
part of any other party hereto).
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee, or its nominee, on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust, shall sell
any REO Property by the end of the third calendar year following the year in
which the Trust acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than sixty days prior to the expiration of such liquidation period, and is
granted an extension of time (an "REO Extension") by the IRS to sell such REO
Property or (ii) obtains for the Trustee and the REMIC Administrator an Opinion
of Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the holding by the Trust of such REO Property subsequent to the end of the
third calendar year following the year in which such acquisition occurred will
not result in an Adverse REMIC Event with respect to any REMIC Pool. Regardless
of whether the Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the Special
Servicer shall act in accordance with the Servicing Standard to liquidate such
REO Property on a timely basis. If the Special Servicer is granted such REO
Extension or obtains such Opinion of Counsel, the Special Servicer shall sell
such REO Property within such extended period as is permitted by such REO
Extension or contemplated by such Opinion of Counsel, as the case may be. Any
expense incurred by the Special Servicer in connection with its applying for and
being granted the REO Extension contemplated by clause (i) of the third
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the third preceding sentence, shall be covered by, and be
reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders, for the retention of revenues and
other proceeds derived from each REO Property. Each account that constitutes the
REO Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, upon receipt, all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as Additional Special Servicing
Compensation, interest and investment income earned
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in respect of amounts held in the REO Account as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
the REO Account for any Collection Period). The Special Servicer shall give
notice to the other parties hereto of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within one Business Day following
the end of each Collection Period, the Special Servicer shall withdraw from the
REO Account and deposit into the Collection Account or deliver to the Servicer
(which shall deposit such amounts into the Collection Account) the aggregate of
all amounts received in respect of each REO Property during such Collection
Period, net of any withdrawals made out of such amounts pursuant to the
preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of such proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, maintenance and disposition of the related REO Property (including the
creation of a reasonable reserve for repairs, replacements, necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items reasonably expected to be incurred during the
following twelve-month period.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income that
would be derived from such property if it were acquired by the Trust. If the
Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure
property" within the meaning of the REMIC Provisions or to the
tax imposed on "prohibited transactions" under Section 860F of
the Code (either such tax referred to herein as an "REO Tax"),
such Mortgaged Property may be Directly Operated by the Special
Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be
subject to an REO Tax, but that a lease of such property to
another party to operate such property, or the performance of
some services by an Independent Contractor with respect to such
property, or another method of operating such property would not
result in income subject to an REO Tax, then the Special Servicer
may (provided that in the judgment of the Special Servicer,
exercised in accordance with the Servicing Standard, it is
commercially reasonable) so lease or otherwise operate such REO
Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO
Tax and that no commercially reasonable means exists
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to operate such property as REO Property without the Trust
incurring or possibly incurring an REO Tax on income from such
property, the Special Servicer shall deliver to the REMIC
Administrator, in writing, a proposed plan (the "Proposed Plan")
to manage such property as REO Property. Such plan shall include
potential sources of income and good faith estimates of the
amount of income from each such source. Within a reasonable
period of time after receipt of such plan, the REMIC
Administrator shall consult with the Special Servicer and shall
advise the Special Servicer of the Trust's federal income tax
reporting position with respect to the various sources of income
that the Trust would derive under the Proposed Plan. In addition,
the REMIC Administrator shall (to the maximum extent reasonably
possible) advise the Special Servicer of the estimated amount of
taxes that the Trust would be required to pay with respect to
each such source of income. After receiving the information
described in the two preceding sentences from the REMIC
Administrator, the Special Servicer shall either (A) implement
the Proposed Plan (after acquiring the respective Mortgaged
Property as REO Property) or (B) manage and operate such property
in a manner that would not result in the imposition of an REO Tax
on the income derived from such property.
The Special Servicer's decision as to how each REO Property shall
be managed and operated shall be in accordance with the Servicing Standard.
Neither the Special Servicer nor the REMIC Administrator shall be liable to the
Certificateholders, the Trust, the other parties hereto or each other for errors
in judgment made in good faith in the exercise of their discretion while
performing their respective responsibilities under this Section 3.17(a). Nothing
in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage
Loan or REO Property pursuant to the terms and subject to the conditions of
Section 3.18.
(b) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders solely for the purpose of its disposition and
sale in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as contemplated by Section 3.17(a), result in the receipt by any REMIC
Pool of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or in an Adverse REMIC Event with respect to any REMIC
Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not
enter into any lease, contract or other agreement that causes the Trust to
receive, and (unless required to do so under any lease, contract or agreement to
which the Special Servicer or the Trust may become a party or successor to a
party due to a foreclosure, deed-in-lieu of foreclosure or other similar
exercise of a creditor's rights or remedies with respect to a Mortgage Loan)
shall not cause or allow the Trust to receive, any "net income from foreclosure
property" that is subject to taxation under the REMIC Provisions. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
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(iv) all other costs and expenses necessary to maintain,
lease, sell, protect, manage, operate and restore such REO
Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes contemplated by the preceding
sentence with respect to such REO Property, the Special Servicer shall pay, as
Servicing Advances, such amounts as are necessary for such purposes unless the
Special Servicer determines, in its reasonable, good faith judgment, that such
advances would, if made, be Nonrecoverable Servicing Advances; provided,
however, that the Special Servicer may make any such Servicing Advance without
regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor, in a
timely manner, (A) pay all costs and expenses incurred in
connection with the operation and management of such REO
Property, including those listed in Section 3.17(b) above, and
(B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special
Servicer of any of its duties and obligations hereunder with
respect to the operation and management of any such REO Property;
and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all
duties and obligations in connection with the operation and
management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable as, a Servicing Advance.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale
or purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly provided
in or contemplated by Sections 2.02, 2.03 and 9.01.
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(b) If the Special Servicer has determined, in its reasonable
good faith judgment, that any Defaulted Mortgage Loan will become subject to
foreclosure proceedings and that the sale of such Mortgage Loan under the
circumstances described in this Section 3.18 is in accordance with the Servicing
Standard, the Special Servicer shall promptly so notify in writing the Trustee
and the Servicer, and the Trustee shall, within 5 days after receipt of such
notice, notify the Majority Controlling Class Certificateholder. The Majority
Controlling Class Certificateholder may, at its option, within 30 days after
receipt of such notice, purchase (or designate an Affiliate thereof to purchase)
any such Defaulted Mortgage Loan out of the Trust Fund at a cash price equal to
the applicable Purchase Price. The Purchase Price for any Defaulted Mortgage
Loan purchased under this Section 3.18(b) shall be deposited into the Collection
Account, and the Trustee, upon receipt of an Officer's Certificate from the
Servicer to the effect that such deposit has been made, shall release or cause
to be released to the Certificateholder effecting such purchase or its designee
the related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in such Certificateholder or its
designee ownership of such Mortgage Loan. In connection with any such purchase,
the Special Servicer shall deliver the related Servicing File to the
Certificateholder effecting such purchase or its designee.
(c) If the Majority Controlling Class Certificateholder has not
purchased (or caused the purchase of) any Defaulted Mortgage Loan described in
the first sentence of Section 3.18(b) within 30 days of its having received
notice in respect thereof pursuant to Section 3.18(b) above or has specifically
waived in writing its right to purchase such Defaulted Mortgage Loan, then the
Trustee shall within 5 days of the end of such 30-day period or within 5 days
following its receipt of such waiver send notice to the Servicer and the Special
Servicer that such Majority Certificateholder has not purchased such Mortgage
Loan, and either the Special Servicer or the Servicer (in that order of
preference) may, at its option, within 30 days after receipt of such notice,
purchase (or designate an Affiliate thereof to purchase) such Mortgage Loan out
of the Trust Fund at a cash price equal to the Purchase Price. The Purchase
Price for any such Mortgage Loan purchased under this Section 3.18(c) 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 (or the designated Affiliate thereof), as applicable, the related
Mortgage File, and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the Servicer or the Special Servicer (or the
designated Affiliate thereof), as applicable, the ownership of such Mortgage
Loan. In connection with any such purchase by the Servicer (or any Affiliate
thereof), the Special Servicer shall deliver the related Servicing File to the
Servicer (or such Affiliate thereof).
(d) The Special Servicer may offer to sell any Defaulted Mortgage
Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c)
above, if and when the Special Servicer determines, consistent with the
Servicing Standard, that such a sale would be in the best economic interests of
the Certificateholders (as a collective whole). Such offer shall be made in a
commercially reasonable manner (which, for purposes hereof, includes an offer to
sell without representation or warranty other than customary warranties of title
and condition, if liability for breach thereof is limited to recourse against
the Trust) for a period of not less than 10 days. Subject to Section 3.18(h),
the Special Servicer shall accept the highest cash bid received from any Person
that constitutes a fair price for such Mortgage Loan. In the absence of any bid
determined as provided below to be fair, the Special Servicer shall proceed with
respect to such Defaulted Mortgage Loan in accordance with Section 3.09.
The Special Servicer shall use its best efforts to solicit bids
for each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by
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Section 3.16(a). Subject to Section 3.18(h), the Special Servicer shall accept
the first (and, if multiple bids are received by a specified bid date, the
highest) cash bid received from any Person that constitutes a fair price
(determined pursuant to Section 3.18(e) below) for such REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price (determined pursuant to Section 3.18(e) below) for any REO Property within
the time constraints imposed by Section 3.16(a), the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances.
The Special Servicer shall give the Trustee and the Servicer not
less than five Business Days' prior written notice of its intention to sell any
Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit a bid to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or REO Property
pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any
Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of
Section 3.18(d), shall be determined by the Special Servicer or, if such cash
bid is from an Interested Person, by the Trustee. In determining whether any bid
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 be entitled
to rely on the most recent Appraisal in the related Servicing File conducted in
accordance with this Agreement within the preceding 12-month period (or, in the
absence of any such Appraisal or if there has been a material change at the
subject property since any such Appraisal, on a new Appraisal to be obtained by
the Special Servicer (the cost of which shall be covered by, and be reimbursable
as, a Servicing Advance)). The appraiser conducting any such new Appraisal shall
be a Qualified Appraiser that is (i) selected by the Special Servicer if neither
the Special Servicer nor any Affiliate thereof is bidding with respect to a
Defaulted Mortgage Loan or REO Property and (ii) selected by the Trustee if
either the Special Servicer or any Affiliate thereof is so bidding. Where any
Interested Person is among those bidding with respect to a Defaulted Mortgage
Loan or REO Property, the Special Servicer shall require that all bids be
submitted to it (and, if the Special Servicer is bidding, shall be submitted by
it to the Trustee) in writing and be accompanied by a refundable deposit of cash
in an amount equal to 5% of the bid amount. In determining whether any bid from
a Person other than an Interested Person constitutes a fair price for any such
Mortgage Loan or REO Property, the Special Servicer shall take into account the
results of any Appraisal or updated Appraisal that it or the Servicer may have
obtained in accordance with this Agreement within the prior twelve months, and
any Qualified Appraiser shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
The Purchase Price for any such Mortgage Loan or REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.18, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Defaulted Mortgage Loan or REO Property unless
such bid is the highest cash bid received and at least two independent bids (not
including the bid of the Special Servicer or any Affiliate) have been received.
In the event the bid of the Special Servicer or any Affiliate thereof is the
only bid received or is the higher of only two bids received, then additional
bids shall be solicited. If an additional bid or bids, as the case may be, are
received and the original bid of the Special Servicer or any Affiliate thereof
is the highest of all cash bids received, then the bid of the Special Servicer
or such Affiliate shall be accepted, provided that the Trustee has otherwise
determined, as provided above in this Section 3.18(e), that such bid constitutes
a fair price for any Defaulted
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Mortgage Loan or REO Property. Any bid by the Special Servicer shall be
unconditional; and, if accepted, the Defaulted Mortgage Loan or REO Property
shall be transferred to the Special Servicer without recourse, representation or
warranty other than customary representations as to title given in connection
with the sale of a mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the
Special Servicer shall act on behalf of the Trustee in negotiating with
independent third parties and taking any other action necessary or appropriate
in connection with the sale of any Defaulted Mortgage Loan or REO Property, and
the collection of all amounts payable in connection therewith. In connection
therewith, the Special Servicer may charge prospective bidders, and may retain,
fees that approximate the Special Servicer's actual costs in the preparation and
delivery of information pertaining to such sales or evaluating bids without
obligation to deposit such amounts into the Collection Account. Any sale of a
Defaulted Mortgage Loan or any REO Property shall be final and without recourse
(except for warranties of title and condition contemplated by Section 3.18(d))
to the Trustee or the Trust, and if such sale is consummated in accordance with
the terms of this Agreement, neither the Special Servicer nor the Trustee shall
have any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property
shall be for cash only.
(h) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash bid if the Special Servicer determines, in accordance with the Servicing
Standard, that rejection of such bid would be in the best interests of the
Certificateholders (as a collective whole), and the Special Servicer may accept
a lower cash bid (from any Person other than itself or an Affiliate) if it
determines, in accordance with the Servicing Standard, that acceptance of such
bid would be in the best interests of the Certificateholders (as a collective
whole) (for example, if the prospective buyer making the lower bid is more
likely to perform its obligations or the terms (other than price) offered by the
prospective buyer making the lower bid are more favorable).
SECTION 3.19. Additional Obligations of Servicer.
(a) The Servicer shall deliver to the Trustee for deposit in the
Distribution Account on each Servicer Remittance Date, without any right of
reimbursement therefor, an amount equal to the lesser of (i) the aggregate
amount of Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received in respect of the Mortgage Pool during the most recently
ended Collection Period, and (ii) the total amount of Servicing Fees and
Prepayment Interest Excesses received by the Servicer during such Collection
Period.
(b) No more frequently than once per calendar month, the Special
Servicer may require the Servicer, and the Servicer shall be obligated, out of
the Servicer's own funds, to reimburse the Special Servicer for any Servicing
Advances made by but not previously reimbursed to the Special Servicer, together
with interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten (10) days of the request therefor
by wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Servicer's reimbursement to the Special Servicer of
any Servicing Advance and payment to the Special Servicer of interest thereon,
all in accordance with this Section 3.19(b), the Servicer shall for all purposes
of this Agreement be deemed to have made such Servicing Advance at the same time
as the Special Servicer actually made such Servicing Advance, and accordingly,
the Servicer shall be entitled
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to reimbursement for such Servicing Advance, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same
manner and to the same extent as the Servicer would otherwise have been entitled
if it had actually made such Servicing Advance at the time the Special Servicer
did.
Notwithstanding anything to the contrary contained in any other
Section of this Agreement (but subject to the following paragraph), if the
Special Servicer is required under this Agreement to make any Servicing Advance
but does not desire to do so, the Special Servicer may, in its sole discretion,
request that the Servicer make such Servicing Advance, such request to be made,
in writing, in a timely manner that does not adversely affect the interests of
any Certificateholder and to be accompanied by such information and
documentation regarding the subject Servicing Advance as the Servicer may
reasonably request; provided, however, that the Special Servicer shall not be
entitled to make such a request (other than for emergency advances) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Servicer shall have the obligation to make
any such Servicing Advance that it is so requested by the Special Servicer to
make, within ten (10) days following the Servicer's receipt of such request. The
Special Servicer shall be relieved of any obligations with respect to a
Servicing Advance that it so requests the Servicer to make (regardless of
whether or not the Servicer shall make such Servicing Advance). The Servicer
shall be entitled to reimbursement for any Servicing Advance made by it at the
direction of the Special Servicer, together with interest thereon in accordance
with Sections 3.05(a) and 3.11(g), at the same time, in the same manner and to
the same extent as the Servicer is entitled with respect to any other Servicing
Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b)
, the Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if the
Servicer determines in its reasonable, good faith judgment that such Servicing
Advance, although not characterized by the Special Servicer as a Nonrecoverable
Servicing Advance, is in fact a Nonrecoverable Servicing Advance. The Servicer
shall notify the Special Servicer in writing of such determination and, as
applicable, the Special Servicer shall remain obligated to make such Servicing
Advance and/or such Nonrecoverable Servicing Advance shall be reimbursed to the
Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the earliest of (i) the date on which any
Mortgage Loan becomes a Modified Mortgage Loan, (ii) either (A) the 60th day
after the occurrence of any uncured delinquency in Monthly Payments with respect
to any Mortgage Loan (other than a Mortgage Loan described in the immediately
following clause (B)) or (B) the 30th day following the occurrence of any
uncured delinquency in Monthly Payments with respect to any Modified Mortgage
Loan or any Mortgage Loan as to which the related Mortgagor has been the subject
of a voluntary or involuntary bankruptcy, insolvency or similar proceeding since
the Closing Date, (iii) the date on which a receiver is appointed and continues
in such capacity in respect of the Mortgaged Property securing any Mortgage Loan
and (iv) the date on which the Mortgaged Property securing any Mortgage Loan
becomes an REO Property (each such Mortgage Loan, until it ceases to be such in
accordance with the following paragraph, a "Required Appraisal Loan"), the
Special Servicer shall obtain an Appraisal of the related Mortgaged Property,
unless an Appraisal thereof had previously been obtained within the prior twelve
months, and shall provide a copy thereof to the Servicer, the Trustee and the
Controlling Class Representative. The cost of such Appraisal shall be covered
by, and be reimbursable as, a Servicing Advance. Based on such Appraisal, the
Special Servicer shall determine and report to the Trustee the then applicable
Appraisal Reduction Amount, if any, with respect to the subject Required
Appraisal Loan.
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With respect to each Required Appraisal Loan (unless such
Mortgage Loan has become a Corrected Mortgage Loan and has remained current for
twelve consecutive Monthly Payments, and no other Servicing Transfer Event has
occurred with respect thereto during such twelve-month period, in which case it
will cease to be a Required Appraisal Loan), the Special Servicer shall, within
30 days of each anniversary of such loan's having become a Required Appraisal
Loan, order an update of the prior Appraisal (the cost of which will be covered
by, and be reimbursable as, a Servicing Advance). Based upon such Appraisal, the
Special Servicer shall redetermine and report to the Trustee the then applicable
Appraisal Reduction Amount, if any, with respect to the subject Required
Appraisal Loan.
At any time that any Appraisal Reduction Amount exists with
respect to any Required Appraisal Loan, the Controlling Class Representative
may, at its own expense, obtain and deliver to the Servicer, the Special
Servicer and the Trustee an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, and upon the written request of the Controlling
Class Representative, the Special Servicer shall recalculate the Appraisal
Reduction Amount in respect of such Required Appraisal Loan based on such
Appraisal and notify the Trustee, the Servicer and the Controlling Class
Representative of such recalculated Appraisal Reduction Amount.
(d) The Servicer shall pay, without any right of reimbursement
therefor, the post-Closing Date fees of the Rating Agencies for ongoing
surveillance of the Rated Certificates, but shall not be required to pay without
reimbursement the fees charged by any Rating Agency for a (i) confirmation as to
the lack of an Adverse Rating Event with respect to any Class of Rated
Certificates or (ii) in connection with any other particular matter.
(e) In connection with each prepayment of principal received
hereunder, the Servicer shall calculate any applicable Prepayment Premium or
Yield Maintenance Premium, as the case may be, payable under the terms of the
related Mortgage Note. Upon written request of any Certificateholder, the
Servicer shall disclose to such Certificateholder its calculation of any such
Prepayment Premium or Yield Maintenance Premium.
(f) The Servicer shall not permit defeasance of any Mortgage Loan
(x) on or before the earliest date on which defeasance is permitted under the
terms of such Mortgage Loan or (y) to the extent consistent with the terms of
such Mortgage Loan, unless (i) the defeasance collateral consists of U.S.
Treasury obligations, (ii) the Servicer has determined that the defeasance will
not result in an Adverse REMIC Event in respect of any REMIC Pool, (iii) the
Servicer has notified the Rating Agencies, (iv) the Servicer has confirmed that
such defeasance will not result in an Adverse Rating Event in respect of any
Class of Rated Certificates (provided that the requirement to obtain such
confirmation will be a pre-condition to the defeasance only if the Servicer is
able under the related Mortgage Loan documents and applicable law to prevent the
defeasance if such confirmation is not obtained), and (v) the Servicer has
requested and received from the related Mortgagor (A) an Opinion of Counsel
generally to the effect that the Trustee will have a perfected, first priority
security interest in such defeasance collateral and (B) written confirmation
from a firm of Independent accountants stating that payments made on such
defeasance collateral in accordance with the terms thereof will be sufficient to
pay the subject Mortgage Loan in full on or before its Stated Maturity Date (or,
in the case of an ARD Loan, on or before its Anticipated Repayment Date) and to
timely pay each Monthly Payment scheduled to be due prior thereto but after the
defeasance. Any customary and reasonable out-of-pocket expense incurred by the
Servicer pursuant to this Section 3.19(f) shall be paid by the Mortgagor of the
defeased Mortgage Loan pursuant to the related Mortgage, Mortgage Note or other
pertinent document, if so allowed by the terms of such documents.
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(g) The Servicer shall, as to each Mortgage Loan which is secured
by the interest of the related Mortgagor under a Ground Lease, promptly (and in
any event within 45 days of the Closing Date) notify the related ground lessor
under such Ground Lease of the transfer of such Mortgage Loan to the Trust
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related ground lease should thereafter be forwarded to the
Servicer. The Servicer shall, as to the Mortgage Loan secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as Courtyard by Marriott-
Tuscaloosa and the Mortgage Loan secured by the Mortgaged Property identified on
the Mortgage Loan Schedule as Fairfield Inn-Tuscaloosa, promptly (and in any
event within 45 days of the Closing Date) notify the ground sub-lessor under the
related Ground Sub-Lease, and the fee owner under the related ground lease to
which such sub-lessor is a party, of the transfer of such Mortgage Loan to the
Trust pursuant to this Agreement, inform such ground sub-lessor that any notices
of default under such Ground Sub-Lease should thereafter be forwarded to the
Servicer and inform such fee owner that any notices of default under such ground
lease should thereafter be forwarded to the Servicer. The Servicer shall not
have any liability for any loss resulting from the failure of a ground lessor to
notify the Servicer of a default under any such ground lease.
(h) (i) As to each GECA Mortgage Loan that is an ARD
Loan that provides for the calculation of any Yield Maintenance
Premium to be based upon the Monthly Payments scheduled to be due
during the term of such ARD Loan to its Maturity Date (without
regard to its Anticipated Repayment Date), the Servicer shall
prepare and forward to the related Mortgagor a letter of
modification of the related Mortgage Note, which letter shall (A)
be in a form reasonably acceptable to GECA, the Servicer and the
Depositor, (B) provide that Yield Maintenance Premiums required
to be paid under such Mortgage Loan shall be calculated on the
basis of the assumption that the related Anticipated Repayment
Date constitutes the Maturity Date and otherwise in accordance
with the terms of such Mortgage Loan as in effect prior to the
execution of such letter and (C) be conditioned upon the related
Mortgagor's execution and return thereof to the Servicer not
later than the 90th day following the Closing Date. In the event
the Mortgagor does not execute and return such letter by the 90th
day following the Closing Date, the Servicer shall service and
administer the Mortgage Loan without regard to the terms of such
letter of modification unless the Servicer has received (after
the 90th day following, but on or before the first anniversary
of, the Closing Date) such letter of modification and an Opinion
of Counsel (which shall not be an expense of the Trust) to the
effect that permitting the subject modification would not result
in an Adverse REMIC Event with respect to any REMIC Pool.
(ii) As to each GECA Mortgage Loan that is an ARD Loan, that
provides for defeasance and further provides for the calculation
of the cash flow to be provided for by the pledge of United
States Treasury pursuant to such defeasance provision to be based
upon the Monthly Payments scheduled to be due during the term of
such ARD Loan to its Maturity Date (without regard to its
Anticipated Repayment Date), and as to each Column Mortgage Loan
secured by any of the Mortgage Properties identified on the
Mortgage Loan Schedule as Comfort Inn-Hollywood, Hampton Inn &
Suites, Holiday Inn-Lake Havasu, Holiday Inn Express, Howard
Johnson Hotel and Ramada Limited, the Servicer shall prepare and
forward to the related Mortgagor a letter of modification of the
related Mortgage Note, which letter shall (A) be in a form
reasonably acceptable to GECA, the Servicer and the Depositor,
(B) provide that such calculation of the cash flow to be provided
for by the pledge of United States Treasury obligations under
such defeasance provision shall be calculated on the basis of the
assumption that the related
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Anticipated Repayment Date constitutes the Maturity Date
(notwithstanding any contrary provision of such Mortgage Loan)
and otherwise in accordance with the terms of such Mortgage Loan
as in effect prior to the execution of such letter, (C) provide
that the related Mortgagor shall not be required or permitted to
defease such Mortgage Loan at any time after the related
Anticipated Repayment Date (notwithstanding any contrary
provision of such Mortgage Loan), and (D) be conditioned upon the
related Mortgagor's execution and return thereof to the Servicer
not later than the 80th day following the Closing Date. If, as to
any Mortgage Loan referred to in the prior sentence, the Servicer
does not receive on or before the 80th day following the Closing
Date an executed copy of the letter of modification contemplated
by the preceding sentence, the Servicer shall, prior to the 90th
day following the Closing Date, prepare and forward to the
related Mortgagor a unilateral letter of modification, which
unilateral letter of modification shall (X) be in a form
reasonably acceptable to GECA, the Servicer and the Depositor and
(Y) grant to such Mortgagor the option to have any and all
calculations of the cash flow to be provided for by the pledge of
United States Treasury obligations pursuant to the related
defeasance provision to be calculated as described in clause (B)
above. The Servicer shall not have any liability to the Trust or
the Certificateholders solely by reason of its servicing any such
Mortgage Loan according to the terms thereof as modified by such
unilateral letter of modification.
(i) With respect to each Designated ARD Loan, to the extent that the
related Seller has not on or before the Closing Date delivered to the related
Mortgagor a waiver of the accrual of Additional Interest to the extent the
related Additional Interest Rate exceeds 2.0% per annum, the Servicer shall
deliver, on or before the 90th day following the Closing Date, such a waiver on
behalf of the Trust Fund as the holder of such Designated ARD Loan.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer and, to the limited extent permitted
below, the Servicer each may (consistent with the Servicing Standard) agree to
any modification, waiver or amendment of any term of, extend the maturity of,
forgive interest (including Default Interest and Additional Interest) on and
principal of, forgive late payment charges, Prepayment Premiums and Yield
Maintenance Premiums on, defer the payment of interest on, permit the release,
addition or substitution of collateral securing, and/or permit the release,
addition or substitution of the Mortgagor on or any guarantor of, any Mortgage
Loan it is required to service and administer hereunder, subject, however, to
each of the following limitations, conditions and restrictions:
(i) other than as provided in Sections 2.03(a), 3.02, 3.08,
3.19(h), 3.19(i) and 3.20(f), the Servicer shall not agree to any
modification, waiver or amendment of any term of, or take any of
the other acts referenced in this Section 3.20(a) with respect
to, any Mortgage Loan without the consent of the Special Servicer
(it being understood and agreed that (A) the Servicer shall
promptly provide the Special Servicer with all information that
the Special Servicer may reasonably request in order to withhold
or grant any such consent, (B) the Special Servicer shall not
unreasonably withhold any such consent, (C) the Special Servicer
shall decide whether to withhold or grant such consent in
accordance with the Servicing Standard and (D) if any such
consent has not been expressly denied within 10 Business Days of
the Special Servicer's receipt from the Servicer of all
information reasonably requested thereby in order to make an
informed decision, such consent shall be deemed to have been
granted);
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(ii) other than as provided in Sections 3.02 and 3.08, the
Special Servicer shall not agree to (or consent to the Servicer's
agreeing to) any modification, waiver or amendment of any term
of, or take (or consent to the Servicer's taking) any of the
other acts referenced in this Section 3.20(a) with respect to,
any Mortgage Loan that would affect the amount or timing of any
related payment of principal, interest or other amount payable
thereunder or, in the Special Servicer's reasonable, good faith
judgment, would materially impair the security for such Mortgage
Loan or reduce the likelihood of timely payment of amounts due
thereon, unless a material default on such Mortgage Loan has
occurred or, in the Special Servicer's reasonable, good faith
judgment, a default in respect of payment on such Mortgage Loan
is reasonably foreseeable, and such modification, waiver,
amendment or other action is reasonably likely to produce a
greater recovery to Certificateholders on a present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be done at the related Net
Mortgage Rate), than would liquidation;
(iii) the Special Servicer shall not extend (or consent to the
Servicer's extending) the date on which any Balloon Payment is
scheduled to be due on any Specially Serviced Mortgage Loan to a
date beyond the earliest of (A) the third anniversary of such
Mortgage Loan's Stated Maturity Date, (B) two years prior to the
Rated Final Distribution Date, (C) if such Mortgage Loan is
secured by a Mortgage solely or primarily on the related
Mortgagor's leasehold interest (and not a sub-leasehold interest)
in the related Mortgaged Property, ten years prior to the end of
the then current term of the related Ground Lease and (D) if such
Mortgage Loan is secured by a Mortgage solely or primarily on the
related Mortgagor's sub-leasehold interest in the related
Mortgaged Property ten years prior to the then current term of
the related Ground Sub-Lease; and, furthermore, the Special
Servicer shall not grant (or consent to the Servicer's granting)
any such extension unless (A) the Special Servicer's recovery
determination contemplated by clause (ii) above is supported by
an Appraisal performed within the preceding 12-month period and
(B) the Mortgagor agrees to deliver to the Special Servicer, the
Trustee, the Controlling Class Representative and, if not already
included among the foregoing, any Majority Controlling Class
Certificateholder, quarterly operating statements with respect to
the related Mortgaged Property (the Special Servicer (or, if
applicable, the Servicer at the direction of the Special
Servicer) to request that such statements be audited, provided
that the Special Servicer may waive such condition relating to
such statements being audited, in its sole discretion);
(iv) neither the Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of,
or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Mortgage Loan that would result in an
Adverse REMIC Event with respect to any REMIC Pool;
(v) the Special Servicer shall not permit (or consent to the
Servicer's permitting) any Mortgagor to add or substitute any
collateral for its Mortgage Loan unless the Special Servicer
shall have first (A) determined in its reasonable, good faith
judgment, based upon a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems
necessary and prudent) conducted by an Independent Person who
regularly conducts Phase I Environmental Assessments, 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,
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monitoring, containment, clean-up or remediation would be
required under any then applicable environmental laws and/or
regulations and (B) received confirmation from each Rating Agency
that such addition or substitution of collateral will not result
in an Adverse Rating Event with respect to any Class of Rated
Certificates; and
(vi) the Special Servicer shall not release (or not consent to
the Servicer's releasing), including in connection with a
substitution contemplated by clause (v) above, any collateral
securing an outstanding Mortgage Loan except as provided in
Section 3.09(d), except where a Mortgage Loan (or, in the case of
a Cross-Collateralized Group, where such entire Cross-
Collateralized Group) is satisfied and except in the case of a
release where (A) either (1) the use of the collateral to be
released will not, in the Special Servicer's good faith and
reasonable judgment, materially and adversely affect the Net
Operating Income being generated by or the use of the related
Mortgaged Property, or (2) there is a corresponding principal
paydown of such Mortgage Loan in an amount at least equal to the
appraised value of the collateral to be released (or substitute
collateral with an appraised value at least equal to that of the
collateral to be released, is delivered), (B) the remaining
Mortgaged Property (together with any substitute collateral) is,
in the Special Servicer's good faith and reasonable judgment,
adequate security for the remaining Mortgage Loan and (C) such
release would not, in and of itself, result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by each Rating Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (vi) above shall not apply to any of the acts referenced in
this Section 3.20(a) with respect to any Mortgage Loan that is required under
the terms of such Mortgage Loan in effect on the Closing Date (or, in the case
of a Replacement Mortgage Loan, on the related date of substitution) or that is
solely within the control of the related Mortgagor, and (y) notwithstanding
clauses (i) through (vi) above, neither the Servicer nor the Special Servicer
shall be required to oppose the confirmation of a plan in any bankruptcy or
similar proceeding involving a Mortgagor if in its reasonable, good faith
judgment such opposition would not ultimately prevent the confirmation of such
plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust,
the Certificateholders or any other Person if the Special Servicer's analysis
and determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer and in
accordance with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to
Section 3.20(a), shall not, for purposes of calculating monthly distributions to
Certificateholders and reporting of information, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the Servicer or the Special Servicer on behalf of
the Trust to enforce any obligations of the related Mortgagor under such
Mortgage Loan.
(d) Each of the Servicer and the Special Servicer may, as a
condition to its granting any request by a Mortgagor for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the Servicer's or the Special Servicer's, as the case may be, discretion
pursuant
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to the terms of the instruments evidencing or securing the related Mortgage Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it a reasonable or customary fee (which shall in no event exceed 1.0% of the
unpaid principal balance of the related Mortgage Loan) for the additional
services performed in connection with such request, together with any related
costs and expenses incurred by it. All such fees collected by the Servicer
and/or the Special Servicer shall be allocable between such parties, as
Additional Servicing Compensation and Additional Special Servicing Compensation,
respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions
entered into or taken in respect of the Mortgage Loans pursuant to this Section
3.20 shall be in writing. Each of the Special Servicer and the Servicer shall
notify the other such party and the Trustee, in writing, of any modification,
waiver, amendment or other action entered into or taken thereby in respect of
any Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File (with a copy to the other such party, an original counterpart of
the agreement relating to such modification, waiver, amendment or other action,
promptly (and in any event within 10 Business Days) following the execution
thereof. In addition, following the execution of any modification, waiver or
amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above,
the Special Servicer shall deliver to the Servicer, the Trustee and the Rating
Agencies an Officer's Certificate certifying that all of the requirements of
Section 3.20(a) have been met and setting forth in reasonable detail the basis
of the determination made by it pursuant to Section 3.20(a)(ii); provided that,
if such modification, waiver or amendment involves an extension of the maturity
of any Mortgage Loan, such Officer's Certificate shall be delivered to the
Servicer, the Trustee and the Rating Agencies before the modification, waiver or
amendment is agreed to.
(f) With respect to any Designated ARD Loan after its Anticipated
Repayment Date, the Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgage Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall be permitted, in its discretion, to
waive (such waiver to be in writing addressed to the related Mortgagor, with a
copy to the Trustee) all or any portion of accrued Additional Interest if, prior
to the related maturity date, the related Mortgagor 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 such accrued
Additional Interest, provided that the Servicer's or Special Servicer's, as the
case may be, determination to waive the right to such accrued Additional
Interest is reasonably likely to produce a greater payment to Certificateholders
on a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be performed at the related
Net Mortgage Rate) than a refusal to waive the right to such Additional
Interest. Neither the Servicer nor the Special Servicer will have any liability
to the Trust, the Certificateholders or any other person for any such
determination made in accordance with the Servicing Standard. This subsection
shall not be construed to limit the authority of the Special Servicer to waive
the payment of Additional Interest pursuant to Section 3.20(a).
SECTION 3.21. Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan and if the Servicer is not also the Special
Servicer, the Servicer shall immediately give notice thereof, and shall deliver
the related Servicing File, to the Special Servicer and shall use its best
efforts to provide the Special Servicer with all information, documents (or
copies thereof) and records (including
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records stored electronically on computer tapes, magnetic discs and the like)
relating to the Mortgage Loan and reasonably requested by the Special Servicer
to enable it to assume its functions hereunder with respect thereto without
acting through a Sub-Servicer. To the extent such is in the possession of the
Servicer or any Sub-Servicer thereof, the information, documents and records to
be delivered by the Servicer to the Special Servicer pursuant to the prior
sentence shall include, but not be limited to, financial statements, appraisals,
environmental/engineering reports, leases, rent rolls, title insurance policies,
UCC's and tenant estoppels. The Servicer shall use its best efforts to comply
with the preceding two sentences within five Business Days of the occurrence of
each related Servicing Transfer Event. The Special Servicer may, as to any
delinquent Mortgage Loan, prior to the occurrence of a Servicing Transfer Event
with respect thereto, request and obtain the foregoing documents and information
in order to perform its duties described in Section 3.02.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan and if the Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within five Business Days, to the Servicer;
and, upon giving such notice and returning such Servicing File to the Servicer,
the Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Servicer to service
and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a Cross-
Collateralized Mortgage Loan as a result of a Servicing Transfer Event or the
re-assumption of servicing responsibilities by the Servicer with respect to any
such Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Servicer and
the Special Servicer shall each transfer to the other, as and when applicable,
the servicing of all other Cross-Collateralized Mortgage Loans constituting part
of the same Cross-Collateralized Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Mortgage Loan at anytime that a continuing
Servicing Transfer Event exists with respect to another Cross-Collateralized
Mortgage Loan in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while such
Mortgage Loan is a Specially Serviced Mortgage Loan, for inclusion in the
related Mortgage File (with a copy of each such original to the Servicer), and
copies of any additional related Mortgage Loan information, including
correspondence with the related Mortgagor generated while such Mortgage Loan is
a Specially Serviced Mortgage Loan.
(c) The Servicer and Special Servicer shall each furnish to the
other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Mortgage Loans and any REO Properties and as shall
be reasonably required by the requesting party in order to perform its duties
hereunder.
(d) In connection with the performance of its obligations
hereunder, each of the Servicer and the Special Servicer shall be entitled to
rely upon written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided
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that, in each case, the Sub-Servicing Agreement: (i) insofar as it affects the
Trust, is consistent with this Agreement in all material respects and requires
the Sub-Servicer to comply with all of the applicable conditions of this
Agreement; (ii) provides that if the Servicer or the Special Servicer, as the
case may be, shall for any reason no longer act in such capacity hereunder
(including by reason of an Event of Default), the Trustee or its designee or any
other successor to the Servicer or the Special Servicer, as the case may be, may
thereupon assume all of the rights and, except to the extent they arose prior to
the date of assumption, obligations of the Servicer or the Special Servicer, as
the case may be, under such agreement or, alternatively, may terminate such
Sub-Servicing Agreement without cause and without payment of any penalty or
termination fee; (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Servicer or the Special Servicer, as the case may be, thereunder as
contemplated by the immediately preceding clause (ii)) none of the Trustee, any
successor Servicer or Special Servicer, as the case may be, or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty; (v) does not permit the
Sub-Servicer to enter into or consent to any modification, waiver or amendment
or otherwise take any action on behalf of the Servicer or Special Servicer, as
the case may be, contemplated by Section 3.20 hereof without the consent of the
Servicer or Special Servicer, as the case may be; and (vi) does not permit the
Sub-Servicer any rights of indemnification out of the Trust Fund that are
greater than those that the Servicer or the Special Servicer, as the case may
be, have pursuant to Section 6.03; provided that the appointment by the Servicer
or Special Servicer of a third-party contractor for the purpose of performing
discrete, ministerial functions shall not be subject to this Section 3.22
(except that the Servicer or the Special Servicer, as the case may be, shall
remain responsible for the actions of such third-party contractors and shall pay
all fees and expenses of such third-party contractors, unless otherwise
expressly provided herein). In addition, each Sub-Servicing Agreement entered
into by the Servicer shall provide that such agreement shall, with respect to
any Mortgage Loan serviced thereunder, terminate at the time such Mortgage Loan
becomes a Specially Serviced Mortgage Loan (or, alternatively, be suspended for
so long as such Mortgage Loan continues to be a Specially Serviced Mortgage
Loan), and each Sub-Servicing Agreement entered into by the Special Servicer
shall relate only to Specially Serviced Mortgage Loans and REO Property and
shall terminate with respect to any such Mortgage Loan which ceases to be a
Specially Serviced Mortgage Loan. The Servicer and the Special Servicer shall
each notify the other, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer. The Servicer and the Special Servicer
shall each deliver to the Trustee copies of all Sub-Servicing Agreements, and
any amendments thereto and modifications thereof, entered into by it promptly
upon its execution and delivery of such documents. References in this Agreement
to actions taken or to be taken by the Servicer or the Special Servicer include
actions taken or to be taken by a Sub-Servicer on behalf of the Servicer or the
Special Servicer, as the case may be; and, in connection therewith, all amounts
advanced by any Sub-Servicer to satisfy the obligations of the Servicer or the
Special Servicer hereunder to make Advances shall be deemed to have been
advanced by the Servicer or the Special Servicer, as the case may be, out of its
own funds and, accordingly, such Advances shall be recoverable by such
Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Servicer or the Special Servicer, as the case may be. Such
Advances shall accrue interest in accordance with Sections 3.11(g) and/or
4.03(e), such interest to be allocable between the Servicer or the Special
Servicer, as the case may be, and such Sub-Servicer as they may agree. For
purposes of this Agreement, the Servicer and the Special Servicer shall each be
deemed to have received any payment when a Sub-Servicer retained by it receives
such payment.
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(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) The Servicer and the Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the other such party
or to the Trustee, the Certificateholders or the Trust) monitor the performance
and enforce the obligations of their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Servicer or the
Special Servicer, as applicable, in its good faith and reasonable judgment,
would require were it the owner of the Mortgage Loans. Subject to the terms of
the related Sub-Servicing Agreement, the Servicer and the Special Servicer shall
each have the right to remove a Sub-Servicer retained by it at any time it
considers such removal to be in the best interests of Certificateholders.
(d) If the Servicer or the Special Servicer ceases to serve as
such under this Agreement for any reason (including by reason of an Event of
Default) and no successor Servicer or Special Servicer, as the case may be, has
succeeded to its rights and assumed its obligations hereunder or, in the case of
the Special Servicer, no replacement Special Servicer has been designated
pursuant to Section 6.06, then the Trustee or its designee shall succeed to the
rights and assume the obligations of the Servicer or the Special Servicer under
any Sub-Servicing Agreement, unless the Trustee elects to terminate any such
Sub-Servicing Agreement in accordance with its terms and Section 3.22(a)(ii)
hereof. In any event, if a Sub-Servicing Agreement is to be assumed by the
Trustee or another successor thereto, then the Servicer or the Special Servicer,
as applicable, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Servicer and
the Special Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% (by aggregate
Certificate Principal Balance) of the Controlling Class shall be entitled in
accordance with this Section 3.23 to select a representative (the "Controlling
Class Representative") having the rights and powers specified in this Agreement
(including Section 3.24) or to replace an existing Controlling Class
Representative. Upon (i) the receipt by the Trustee of written requests for the
selection of a Controlling Class Representative from the Holders (or, in the
case of Book-Entry Certificates, the Certificate Owners) of Certificates
representing more than 50% (by aggregate Certificate Principal Balance) of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the
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Trustee shall promptly notify the Holders (and, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
the Certificate Owners) of the Controlling Class that they may select a
Controlling Class Representative. Such notice shall set forth the process
established by the Trustee in order to select a Controlling Class
Representative, which process may include the designation of the Controlling
Class Representative by any Majority Controlling Class Certificateholder in a
writing delivered to the Trustee. No appointment of any Person as a Controlling
Class Representative shall be effective until such Person provides the Trustee
with written confirmation of its acceptance of such appointment, an address and
telecopy number for the delivery of notices and other correspondence and a list
of officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and telecopy numbers).
(b) Within 10 Business Days (or as soon thereafter as practicable
if the Controlling Class consists of Book-Entry Certificates) of receiving a
request therefor from the Servicer or Special Servicer, the Trustee shall
deliver to the requesting party the identity of the Controlling Class
Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Holders (or, in the
case of Book-Entry Certificates, subject to Section 5.06, by the Depository or
the Certificate Owners) of such Certificates, and the Servicer and the Special
Servicer shall be entitled to rely on such information provided by the Trustee
with respect to any obligation or right hereunder that the Servicer and the
Special Servicer may have to deliver information or otherwise communicate with
the Controlling Class Representative or any of the Holders (or, if applicable,
Certificate Owners) of the Controlling Class. In addition to the foregoing,
within two Business Days of the selection, resignation or removal of a
Controlling Class Representative, the Trustee shall notify the other parties to
this Agreement of such event. The expenses incurred by the Trustee in connection
with obtaining information from the Depository or Depository Participants with
respect to any Book-Entry Certificate shall be expenses of the Trust payable out
of the Collection Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee, each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class and the
Special Servicer. The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% (by aggregate
Certificate Principal Balance) of the Controlling Class shall be entitled to
remove any existing Controlling Class Representative by giving written notice to
the Trustee and to each other Holder (or, in the case of Book-Entry
Certificates, Certificate Owner) of the Controlling Class.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
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(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Mortgagor with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Trustee, the
Servicer and the Special Servicer, whereupon (if the Special Servicer or the
Trust are also named parties to the same action and, in the sole judgment of the
Special Servicer, the Controlling Class Representative had with regard to the
particular matter acted in good faith, without negligence or willful
misfeasance, and there is no potential for the Special Servicer or the Trust to
be an adverse party in such action as regards the Controlling Class
Representative) the Special Servicer on behalf of the Trust shall, subject to
Section 6.03, assume the defense of any such claim against the Controlling Class
Representative. This provision shall survive the termination of this Agreement
and the termination or resignation of the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) The Special Servicer shall, prior to taking any of the
following actions, (I) notify the Controlling Class Representative of the
Special Servicer's intention to take such action, (II) provide the Controlling
Class Representative with copies of documentation relating to its proposed
action and its reasons for determining to take such proposed action, (III)
afford the Controlling Class Representative a period of ten Business Days
following such notice within which to discuss such action with the Special
Servicer and (IV) promptly provide the Controlling Class Representative with all
reasonably requested information relating to such action:
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans
as come into and continue in default;
(ii) any modification, amendment or waiver of any Specially
Serviced Mortgage Loan;
(iii) any proposed sale of a defaulted Mortgage Loan or REO
Property (other than in connection with the termination of the
Trust Fund);
(iv) any acceptance of a discounted payoff;
(v) any determination to bring an REO Property into compliance
with applicable environmental laws or to otherwise address
Hazardous Materials located at an REO Property;
(vi) any release of collateral (other than in accordance with
the terms of, or upon satisfaction of, a Mortgage Loan);
(vii) any acceptance of substitute or additional collateral
for a Mortgage Loan;
(viii) any determination to seek a deficiency judgment against
the Mortgagor under any Specially Serviced Mortgage Loan; and
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(ix) any appointment of any Sub-Servicer with respect to any
Specially Serviced Mortgage Loan or REO Property.
In addition, the Controlling Class Representative may advise the
Special Servicer with respect to such matters as the Controlling Class
Representative may deem advisable or as to which provision is otherwise made
herein. Upon reasonable request, the Special Servicer shall provide the
Controlling Class Representative with any information in the Special Servicer's
possession with respect to such matters.
Any information provided by the Special Servicer under this
subsection shall also be provided, in a written format, by the Special Servicer
to the Servicer and to the Trustee, who shall make it available for review
pursuant to Section 8.12(b).
(b) Notwithstanding anything herein to the contrary, (i) the
Special Servicer shall not have any obligation to consult with or notify any
Controlling Class Representative prior to acting, and the provisions of this
Agreement requiring such shall be of no effect, during the period prior to the
initial selection of a Controlling Class Representative and, if any Controlling
Class Representative resigns or is removed, during the period following such
resignation or removal until a replacement is selected, (ii) the Special
Servicer shall not be required to take or follow any advice given by the
Controlling Class Representative and (iii) notwithstanding any advice given by
the Controlling Class Representative, the Special Servicer will in any event
remain obligated to service and administer the Specially Serviced Mortgage Loans
and REO Properties in accordance with the other provisions of this Agreement,
including the Special Servicer's obligation hereunder to act in accordance with
the Servicing Standard.
(c) The Controlling Class Representative will have no liability
to the Certificateholders 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 the Controlling Class Representative will not
be protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. Each Certificateholder
acknowledges and agrees, by its acceptance of its Certificates, that the
Controlling Class Representative may have special relationships and interests
that conflict with those of Holders of one or more Classes of Certificates, that
the Controlling Class Representative may act solely in the interests of the
Holders of the Controlling Class, that the Controlling Class Representative does
not have any duties to the Holders of any Class of Certificates other than the
Controlling Class, that the Controlling Class Representative may take actions
that favor interests of the Holders of the Controlling Class over the interests
of the Holders of one or more other Classes of Certificates, that the
Controlling Class Representative shall not be deemed to have been negligent or
reckless, or to have acted in bad faith or engaged in willful misfeasance by
reason of its having acted solely in the interests of the Holders of the
Controlling Class, and that the Controlling Class Representative shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative or any director,
officer, employee, agent or principal thereof for having so acted.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Distribution Account for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Available Distribution Amount for such Distribution Date:
(i) to make distributions of interest to the Holders of the
respective Classes of Senior Certificates, pro rata based on
entitlement, up to an amount equal to all Distributable
Certificate Interest in respect of each such Class of
Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(ii) to make distributions of principal to the Holders of the Class
A-1A and Class A-1B Certificates, allocable as between such
Classes of Certificateholders as provided below, up to an
amount equal to the lesser of (A) the aggregate of the then
outstanding Class Principal Balances of the Class A-1A and
Class A-1B Certificates and (B) the Principal Distribution
Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class A-1A and Class A-1B
Certificates, pro rata based on entitlement, up to an amount
equal to all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to each such Class of
Certificates and for which no reimbursement has previously
been received;
(iv) to make distributions of interest to the Holders of the Class
A-1C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(v) after the Class Principal Balances of the Class A-1A and Class
A-1B Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class A-1C
Certificates, up to an amount equal to the lesser of (A) the
then outstanding Class Principal Balance of the Class A-1C
Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the
amounts, if any, distributed on such Distribution Date
pursuant to clause (ii) above;
(vi) to reimburse the Holders of the Class A-1C Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(vii) to make distributions of interest to the Holders of the Class
A-2 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
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(viii) after the Class Principal Balances of the Class A-1A, Class
A-1B and Class A-1C Certificates have been reduced to zero, to
make distributions of principal to the Holders of the Class
A-2 Certificates, up to an amount equal to the lesser of (A)
the then outstanding Class Principal Balance of the Class A-2
Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the
amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii) and (v) above;
(ix) to reimburse the Holders of the Class A-2 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(x) to make distributions of interest to the Holders of the Class
A-3 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xi) after the Class Principal Balances of the Class A-1A, Class
A-1B, Class A-1C and Class A-2 Certificates have been reduced
to zero, to make distributions of principal to the Holders of
the Class A-3 Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of
the Class A-3 Certificates and (B) the excess, if any, of the
Principal Distribution Amount for such Distribution Date over
the amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v) and (viii) above;
(xii) to reimburse the Holders of the Class A-3 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xiii) to make distributions of interest to the Holders of the Class
A-4 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xiv) after the Class Principal Balances of the Class A-1A, Class
A-1B, Class A-1C, Class A-2 and Class A-3 Certificates have
been reduced to zero, to make distributions of principal to
the Holders of the Class A-4 Certificates, up to an amount
equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class A-4 Certificates and (B) the
excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii), (v), (viii)
and (xi) above;
(xv) to reimburse the Holders of the Class A-4 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xvi) to make distributions of interest to the Holders of the Class
B-1 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xvii) after the Class Principal Balances of the Class A Certificates
have been reduced to zero, to make distributions of principal
to the Holders of the Class B-1 Certificates, up to an amount
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equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class B-1 Certificates and (B) the
excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii), (v), (viii),
(xi) and (xiv) above;
(xviii) to reimburse the Holders of the Class B-1 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xix) to make distributions of interest to the Holders of the Class
B-2 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xx) after the Class Principal Balances of the Class A and Class
B-1 Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class B-2
Certificates, up to an amount equal to the lesser of (A) the
then outstanding Class Principal Balance of the Class B-2
Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the
amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v), (viii), (xi), (xiv) and (xvii)
above;
(xxi) to reimburse the Holders of the Class B-2 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xxii) to make distributions of interest to the Holders of the Class
B-3 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xxiii) after the Class Principal Balances of the Class A, Class B-1
and Class B-2 Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class B-3
Certificates, up to an amount equal to the lesser of (A) the
then outstanding Class Principal Balance of the Class B-3
Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the
amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v), (viii), (xi), (xiv) (xvii) and
(xx) above;
(xxiv) to reimburse the Holders of the Class B-3 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xxv) to make distributions of interest to the Holders of the Class
B-4 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xxvi) after the Class Principal Balances of the Class A, Class B-1,
Class B-2 and Class B-3 Certificates have been reduced to
zero, to make distributions of principal to the Holders of the
Class B-4 Certificates, up to an amount equal to the lesser of
(A) the then outstanding Class Principal Balance of the Class
B-4 Certificates and (B) the excess, if any, of the
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Principal Distribution Amount for such Distribution Date over
the amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v), (viii), (xi), (xiv) (xvii),
(xx) and (xxiii) above;
(xxvii) to reimburse the Holders of the Class B-4 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xxviii) to make distributions of interest to the Holders of the Class
B-5 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xxix) after the Class Principal Balances of the Class A, Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates have been
reduced to zero, to make distributions of principal to the
Holders of the Class B-5 Certificates, up to an amount equal
to the lesser of (A) the then outstanding Class Principal
Balance of the Class B-5 Certificates and (B) the excess, if
any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii), (v), (viii),
(xi), (xiv) (xvii), (xx), (xxiii) and (xxvi) above;
(xxx) to reimburse the Holders of the Class B-5 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xxxi) to make distributions of interest to the Holders of the Class
B-6 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xxxii) after the Class Principal Balances of the Class A, Class B-1,
Class B-2, Class B-3, Class B-4 and Class B-5 Certificates
have been reduced to zero, to make distributions of principal
to the Holders of the Class B-6 Certificates, up to an amount
equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class B-6 Certificates and (B) the
excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on
such Distribution Date pursuant to clauses (ii), (v), (viii),
(xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix) above;
(xxxiii) to reimburse the Holders of the Class B-6 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xxxiv) to make distributions of interest to the Holders of the Class
B-7 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xxxv) after the Class Principal Balances of the Class A, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates have been reduced to zero, to make distributions
of principal to the Holders of the Class B-7 Certificates, up
to an amount equal to the lesser of
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(A) the then outstanding Class Principal Balance of the Class
B-7 Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the
amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v), (viii), (xi), (xiv), (xvii),
(xx), (xxiii), (xxvi), (xxix) and (xxxii) above;
(xxxvi) to reimburse the Holders of the Class B-7 Certificates, up to
an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xxxvii) to make distributions of interest to the Holders of the Class
C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xxxviii) after the Class Principal Balances of the Class A and Class B
Certificates have been reduced to zero, to make distributions
of principal to the Holders of the Class C Certificates, up to
an amount equal to the lesser of (A) the then outstanding
Class Principal Balance of the Class C Certificates and (B)
the excess, if any, of the Principal Distribution Amount for
such Distribution Date over the amounts, if any, distributed
on such Distribution Date pursuant to clauses (ii), (v),
(viii), (xi), (xiv) (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii) and (xxxv) above;
(xxxix) to reimburse the Holders of the Class C Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to such Class of
Certificates and for which no reimbursement has previously
been received;
(xl) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of
(A) the aggregate distributions deemed made in respect of the
REMIC II Regular Interests on such Distribution Date pursuant
to Section 4.01(h), over (B) the aggregate distributions made
in respect of the Regular Interest Certificates on such
Distribution Date pursuant to clauses (i) through (xxxix)
above;
(xli) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of
(A) the aggregate distributions deemed made in respect of the
REMIC I Regular Interests on such Distribution Date pursuant
to Section 4.01(i), over (B) the aggregate distributions
deemed made in respect of the REMIC II Regular Interests on
such Distribution Date pursuant to Section 4.01(h); and
(xlii) to make distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the excess, if any, of
(A) the Available Distribution Amount for such Distribution
Date, over (B) the aggregate distributions made in respect of
the other Classes of Certificates on such Distribution Date
pursuant to clauses (i) through (xli) above;
provided that, on the Final Distribution Date, the distributions of principal to
be made pursuant to clauses (ii), (v), (viii), (xi), (xiv) (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii), (xxxv) and (xxxviii) above shall, in each such
case, subject to the then remaining portion of the Available Distribution Amount
for such date, be made to the Holders of the relevant Class or Classes of
Sequential Pay Certificates otherwise entitled to distributions of principal
pursuant to such clause in an amount equal to the entire then remaining Class
Principal Balance (or, in the case of clause (ii) above, if applicable, the
entire aggregate of the then remaining
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Class Principal Balances) of such Class or Classes of Certificates outstanding
immediately prior to such Final Distribution Date.
On each Distribution Date prior to the earlier of (i) the Senior
Principal Distribution Cross-Over Date and (ii) the Final Distribution Date, the
Trustee shall pay the distributions of principal made on the Class A-1A and
Class A-1B Certificates pursuant to clause (ii) above, first, to the Holders of
the Class A-1A Certificates, until the Class Principal Balance of such Class has
been reduced to zero, and thereafter, to the Holders of the Class A-1B
Certificates, until the Class Principal Balance of such Class has been reduced
to zero. On any Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and (in any event) on the Final
Distribution Date, the Trustee shall pay the distributions of principal made on
the Class A-1A and Class A-1B Certificates pursuant to clause (ii) above to the
Holders of the Class A-1A Certificates and the Holders of the Class A-1B
Certificates, pro rata in accordance with the respective Class Principal
Balances of such Classes outstanding immediately prior to such Distribution
Date, until the Class Principal Balance of each such Class has been reduced to
zero.
All distributions of interest made in respect of the Class S
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of the Class S REMIC III Regular Interests,
pro rata in accordance with the respective amounts of Distributable Component
Interest in respect of each Class S REMIC III Regular Interest for such
Distribution Date and, to the extent not previously deemed paid pursuant to this
paragraph, for all prior Distribution Dates.
(b) If a Prepayment Premium is collected with respect to any
Mortgage Loan during any particular Collection Period, then the Trustee shall,
on the Distribution Date corresponding to such Collection Period, withdraw from
the Distribution Account and distribute the amount of such Prepayment Premium as
additional interest as follows: 85% of the amount of such Prepayment Premium
shall be distributed to the Holders of the Class S Certificates, and 15% of the
amount of such Prepayment Premium shall be distributed to the holders of the
Class(es) of Sequential Pay Certificates entitled to distributions of principal
on such Distribution Date (allocable among such Classes, if there is more than
one, pro rata based on the relative amounts of such distributions of principal).
If a Yield Maintenance Premium is collected with respect to any
Mortgage Loan during any particular Collection Period, then the Trustee shall,
on the Distribution Date corresponding to such Collection Period, withdraw from
the Distribution Account and distribute the amount of such Yield Maintenance
Premium as additional interest as follows: The Holders of the Class (or Classes)
of Sequential Pay Certificates then entitled to distributions of principal on
such Distribution Date shall be entitled to an aggregate amount (allocable among
such Classes, if more than one, pro rata in accordance with the relative amounts
of such distributions of principal) equal to the product of (i) the amount of
such Yield Maintenance Premium, multiplied by (ii) a fraction (not greater than
one or less than zero), the numerator of which is equal to the excess, if any,
of the Pass-Through Rate for the corresponding Interest Accrual Period in
respect of such Class of Sequential Pay Certificates (or, if two or more Classes
are involved, the Pass-Through Rate for the corresponding Interest Accrual
Period in respect of such of those Classes as has the most senior right of
payment pursuant to Section 4.01(a), with the Class A-1A Certificates being
deemed senior to the Class A-1B Certificates solely for this purpose), over the
relevant Discount Rate, and the denominator of which is equal to the excess, if
any, of the Mortgage Rate for the Mortgage Loan in respect of which such Yield
Maintenance Premium was received, over the relevant Discount Rate. Any portion
of such Yield Maintenance Premium that may remain after such distributions on
the Sequential Pay Certificates will be distributed to the Holders of the Class
S Certificates.
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For purposes of the foregoing paragraph, the "Discount Rate"
shall be the rate which, when compounded monthly, is equivalent to the Treasury
Rate when compounded semi-annually (e.g., a 6% per annum Treasury Rate would
equate to a 5.9263% per annum Discount Rate). The "Treasury Rate" is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating (x) in the case of any GECA Mortgage Loan, the "weighted
average life of the prepaid Mortgage Loan immediately prior to the date of the
relevant Principal Prepayment" (such weighted average life to be calculated in
accordance with the related loan documents), (y) in the case of any Column
Mortgage Loan, the Stated Maturity Date (or, in the case of an ARD Loan, the
related Anticipated Repayment Date) of the prepaid Mortgage Loan. If Release
H.15 is no longer published, the Servicer shall select a comparable publication
to determine the Treasury Rate.
Any Prepayment Premiums and/or Yield Maintenance Premiums
distributed in respect of the Class S Certificates on any Distribution Date
pursuant to the foregoing paragraphs of this Section 4.01(b) shall be deemed to
have been distributed in respect of the Class S REMIC III Regular Interests, pro
rata in accordance with the respective amounts of Distributable Component
Interest for such Distribution Date.
(c) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among such
Certificates based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions made with respect to each Class of
Certificates on each Distribution Date shall be made to the Holders of such
Certificates of record at the close of business on the related Record Date and,
in the case of each such Holder, shall be made by wire transfer of immediately
available funds to the account thereof at a bank or other entity having
appropriate facilities therefor, if such Holder shall have provided the Trustee
with wiring instructions no less than five Business Days (or, in the case of the
initial Distribution Date, no less than two Business Days) prior to the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), and otherwise shall be made by
check mailed to the address of such Holder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Sequential Pay Certificate, without regard to any possible future
reimbursement of previously allocated Realized Loss or Additional Trust Fund
Expense in respect of such Certificate) will be made in like manner, but only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Sequential Pay Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the Holder that surrendered such Certificate at the last address set
forth for such Holder in the Certificate Register or at any other address of
which the Trustee was subsequently notified in writing.
(d) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the parties hereto shall have any responsibility
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therefor except as otherwise provided by this Agreement or applicable law. The
Trustee and the Depositor shall perform their respective obligations under the
Letter of Representations among the Depositor, the Trustee and the initial
Depository, a copy of which Letter of Representations is attached hereto as
Exhibit C.
(e) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date (such final distribution
to be determined, in the case of a Class of Sequential Pay Certificates, without
regard to any possible future reimbursement of previously allocated Realized
Losses and Additional Trust Fund Expenses in respect of such Class), the Trustee
shall, as promptly as possible (and, in any event, no later than five days)
after the related Determination Date, mail to each Holder of record on such date
of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and surrender of
such Certificates at the office of the Certificate Registrar or
at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the end of the Interest Accrual Period for such
Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, then, subject to applicable escheat laws, the Trustee
shall distribute to the Class R-III Certificateholders all unclaimed funds.
(g) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from
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payments of interest or original issue discount to any Certificateholder
pursuant to federal withholding requirements, the Trustee shall indicate the
amount withheld to such Certificateholder.
(h) All distributions made in respect of each Class of Sequential
Pay Certificates on each Distribution Date pursuant to Section 4.01(a) or
4.01(b) shall be deemed to have first been distributed from REMIC II to REMIC
III in respect of the Corresponding REMIC II Regular Interest for such Class of
Certificates; and all distributions made in respect of the Class S Certificates
on each Distribution Date pursuant to Section 4.01(a) or 4.01(b), and allocable
to any particular Class S REMIC III Regular Interest, shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of the
Corresponding REMIC II Regular Interest for such Class S REMIC III Regular
Interest. In each case, if such distribution on any such Class of Certificates
was a distribution of interest, of principal, of additional interest (in the
form of Prepayment Premiums or Yield Maintenance Premiums) or in reimbursement
of any previously allocated Realized Losses and Additional Trust Fund Expenses
in respect of such Class of Certificates, then the corresponding distribution
deemed to be made on a REMIC II Regular Interest pursuant to the preceding
sentence shall be deemed also to be a distribution of interest, of principal, of
additional interest (in the form of Prepayment Premiums or Yield Maintenance
Premiums) or in reimbursement of any previously allocated Realized Losses and
Additional Trust Fund Expenses, as the case may be, in respect of such REMIC II
Regular Interest. The actual distributions made by the Trustee on each
Distribution Date in respect of the REMIC III Certificates pursuant to Section
4.01(a) or 4.01(b), as applicable, shall be deemed to have been so made from the
amounts deemed distributed in respect of the REMIC II Regular Interests on such
Distribution Date pursuant to this Section 4.01(h). Notwithstanding the deemed
distributions on the REMIC II Regular Interests described in this Section
4.01(h), actual distributions of funds from the Distribution Account shall be
made only in accordance with Section 4.01(a) or 4.01(b), as applicable.
(i) On each Distribution Date, immediately prior to making any
actual distributions on the REMIC III Certificates pursuant to Section 4.01(a)
or the corresponding deemed distributions on the REMIC II Regular Interests
pursuant to Section 4.01(h), the Trustee shall be deemed to have made out of the
Available Distribution Amount for such Distribution Date, the following
distributions in the following order of priority, in each case to the extent of
the remaining portion of such Available Distribution Amount:
first, distributions of interest to REMIC II in respect of all
the REMIC I Regular Interests, up to an amount equal to, and pro
rata among the REMIC I Regular Interests in accordance with, all
Uncertificated Distributable Interest in respect of each REMIC I
Regular Interest for such Distribution Date and, to the extent
not previously deemed paid pursuant to this Section 4.01(i), for
all prior Distribution Dates;
second, distributions of principal to REMIC II in respect of all
the REMIC I Regular Interests, up to an amount equal to, and pro
rata among the REMIC I Regular Interests in accordance with, that
portion, if any, of the Principal Distribution Amount
attributable to each and every Mortgage Loan and/or REO Mortgage
Loan, as the case may be, that relates to each REMIC I Regular
Interest; and
third, distributions to REMIC II in respect of all the REMIC I
Regular Interests (including any REMIC I Regular Interests whose
Uncertificated Principal Balances have previously been reduced to
zero), up to an amount equal to, in reimbursement of, and pro
rata in accordance with, all Realized Losses and Additional Trust
Fund Expenses previously deemed allocated to
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each REMIC I Regular Interest pursuant to Section 4.04(c) that
have not previously been deemed reimbursed on any prior
Distribution Date pursuant to this Section 4.01(i).
In addition, on each Distribution Date, immediately prior to
making any actual distributions on the REMIC III Certificates pursuant to
Section 4.01(b) or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(h), the Trustee shall be deemed to
have distributed to REMIC II each Prepayment Premium and Yield Maintenance
Premium then on deposit in the Distribution Account that was received on any
Mortgage Loan or REO Mortgage Loan during or prior to the related Collection
Period, such distribution to be deemed made in respect of the REMIC I Regular
Interest that relates to such Mortgage Loan or REO Mortgage Loan, as the case
may be.
The distributions deemed made by the Trustee on each Distribution
Date in respect of the REMIC II Regular Interests pursuant to Section 4.01(h),
as well as the distributions actually made by the Trustee on each Distribution
Date in respect of the Class R-II and REMIC III Certificates pursuant to Section
4.01(a) and/or Section 4.01(b), shall be deemed to have been so made or deemed
made, as the case may be, from the amounts deemed distributed in respect of the
REMIC I Regular Interests on such Distribution Date pursuant to this Section
4.01(i). Notwithstanding the deemed distributions on the REMIC I Regular
Interests described in this Section 4.01(i), actual distributions of funds from
the Distribution Account shall be made only in accordance with Section 4.01(a)
or 4.01(b), as applicable.
SECTION 4.02. Statements to Certificateholders; Certain Other
Reports.
(a) Based solely on information provided to the Trustee by the
Servicer and the Special Servicer pursuant to Sections 4.02(b) and 4.02(c), the
Trustee shall prepare (or cause to be prepared) and, on each Distribution Date,
forward electronically (or, upon request, by first class mail) to the Depositor,
GECA, the Rating Agencies, the Controlling Class Representative (if any), each
Certificateholder and, to the extent that the Trustee has in accordance with
Section 5.06 confirmed the Ownership Interest in the Certificates held thereby,
each Certificate Owner a statement in respect of the distribution made on such
Distribution Date setting forth to the extent applicable to such Class the
information set forth in Exhibit E-1 hereto (the "Trustee Report"); provided
that the Trustee need not deliver to the Depositor, GECA and S&P any Trustee
Report that has been made available via the Trustee's Internet Website as
provided below; and provided, further, that the Trustee has no affirmative
obligation to discover the identities of Certificate Owners and need only react
to Persons claiming to be Certificate Owners in accordance with such Section
5.06. Notwithstanding the foregoing, any delivery of such reports to Fitch shall
be made by first class mail.
On each Distribution Date, the Trustee shall deliver
electronically (or, upon request, by first class mail) to the Depositor, GECA,
the Rating Agencies, the Controlling Class Representative, each
Certificateholder and each other Person to which a Trustee Report was forwarded
on such Distribution Date, a copy of the following reports delivered to it by
the Servicer pursuant to Section 3.12(d) since the preceding Distribution Date
(or, in the case of the initial Distribution Date, since the Closing Date): (i)
the Delinquent Loan Status Report; (ii) the Historical Loss Estimate Report;
(iii) the Historical Loan Modification Report; (iv) the REO Status Report; (v)
the Watch List Report; and (vi) the Comparative Financial Status Report. The
Trustee shall prepare and deliver or shall cause to be delivered on each
Distribution Date electronically (or, upon request, by first class mail) to the
Depositor, the Rating Agencies, each Certificateholder and each other Person to
which a Trustee Report was forwarded on such Distribution Date a copy of the
CSSA Loan File Report containing information regarding each Mortgage Loan and
the CSSA Property File Report
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containing information regarding each Mortgaged Property and REO Property as of
the end of the preceding calendar month. The Trustee Report, the CSSA Loan File
Report, the CSSA Property File Report and the reports referred to in the first
sentence of this paragraph collectively constitute the "Certificateholder
Reports". Absent manifest error, 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 Mortgagor 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. None of the
Trustee, the Servicer or the Special Servicer shall have any obligation to
verify the accuracy or completeness of any information provided by a Mortgagor,
a third party or each other.
The Trustee shall make available each month, to
Certificateholders, Certificate Owners and prospective investors, via the
Trustee's Internet Website all Trustee Reports and Unrestricted Servicer Reports
filed with the Commission pursuant to Section 8.15 and, with the consent or at
the direction of the Depositor, such other information regarding the
Certificates and/or the Mortgage Loans as the Trustee may have in its
possession. The Trustee shall make the Restricted Servicer Reports available
each month, via the Trustee's Internet Website, to any Certificateholder,
Certificate Owner, any Person identified by any Certificateholder or Certificate
Owner as a prospective transferee of a Certificate or interest therein, any
Rating Agency or any party hereto, with the use of a password provided by the
Trustee to such person upon receipt by the Trustee from such Person of a
certification in the form of Exhibit L-1 or Exhibit L-2, as applicable;
provided, however, that the Trustee shall provide such password to each party
hereto, the Controlling Class Representative, GECA and each Rating Agency
without requiring such certification. In addition, the Trustee is hereby
directed and authorized to make available, as a convenience to interested
parties (and not in furtherance of the distribution of the Prospectus or the
Prospectus Supplement under the securities laws), this Agreement, the Prospectus
and the Prospectus Supplement via the Trustee's Internet Website. The Trustee
will make no representations or warranties as to the accuracy or completeness of
such documents and will assume no responsibility therefor.
The Trustee's Internet Website shall be located at
"www.securitieslink.net/cmbs" or at such other address as shall be specified by
the Trustee from time to time in the Trustee Report and in one or more written
notices delivered to the other parties hereto, the Controlling Class
Representative (if any) the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's Internet Website, the Trustee
may require registration and the acceptance of a disclaimer. The Trustee shall
not be liable for the dissemination of information in accordance with this
Agreement.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Trustee Report and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) By 2:00 p.m. New York City time on the second Business Day
after each Determination Date, the Servicer shall deliver to the Trustee and the
Special Servicer a report, in CSSA format, setting forth the CSSA Loan File
Report, reflecting information as of the close of business on the last day of
the Collection Period, in a mutually agreeable electronic format. Such CSSA Loan
File Report and any written information supplemental thereto shall include such
information with respect to the Mortgage Loans that is required by the Trustee
for purposes of making the calculations and reports referred to in Section 4.01,
this Section 4.02, Section 4.05 and otherwise in this Agreement, as set forth in
written specifications or guidelines issued by the Trustee from time to time.
Such information may be delivered by
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the Servicer to the Trustee by telecopy or in such electronic or other form as
may be reasonably acceptable to the Trustee. The Special Servicer shall from
time to time (and, in any event, as may be reasonably required by the Servicer)
provide the Servicer with such information in its possession regarding the
Specially Serviced Mortgage Loans and REO Properties as may be necessary for the
Servicer to prepare each Determination Date Report and any supplemental
information to be provided by the Servicer to the Trustee.
Notwithstanding the foregoing, the failure of the Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Servicer
or the Special Servicer so fails because such disclosure, in the reasonable
belief of the Servicer or the Special Servicer, as the case may be, would
violate any applicable law or any provision of a Mortgage Loan document
prohibiting disclosure of information with respect to the Mortgage Loans or the
Mortgaged Properties. The Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare, or cause to be prepared, and mail to
each Person who at any time during the calendar year was a Certificateholder (i)
a statement containing the aggregate information set forth on page 2 of Exhibit
E-1 hereto for such calendar year or applicable portion thereof during which
such person was a Certificateholder and (ii) such other customary information as
the Trustee deems necessary or desirable for Certificateholders to prepare their
federal, state and local income tax returns, including the amount of original
issue discount accrued on the Certificates, if applicable. The obligations of
the Trustee in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code. As soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to such Certificateholder such information regarding the
Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Trustee. The Servicer and the Special Servicer shall promptly
provide to the Depositor, the REMIC Administrator and the Trustee such
information regarding the Mortgage Loans and the Mortgaged Properties as such
party may reasonably request and that has been furnished to, or may otherwise be
in the possession of, the Servicer or the Special Servicer, as the case may be.
SECTION 4.03. P&I Advances; Advances relating to the Servicer
Remittance Amount.
(a) On or before 1:00 p.m., New York City time, on each P&I
Advance Date, the Servicer shall, subject to Section 3.04(c) and Section
4.03(c), either (i) remit from its own funds to the Trustee for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date, (ii) apply amounts
held in the Collection Account for future distribution to Certificateholders in
subsequent months in discharge of any such obligation to make P&I Advances, or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made. Any amounts held in the
Collection Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in the Servicer's records and replaced by the
Servicer by deposit in the Collection Account prior to the next succeeding
Servicer Remittance Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and interest in respect
of which such P&I Advances were made). If, as of 2:00 p.m., New York City time,
on any P&I Advance Date, the Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the Officer's Certificate and other
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documentation related to a determination of nonrecoverability of a P&I Advance
pursuant to Section 4.03(c)) or shall not have remitted any portion of the
Servicer Remittance Amount required to be remitted on such date, then the
Trustee shall provide notice of such failure to the Servicer by facsimile
transmission as soon as possible, but in any event before 3:00 p.m., New York
City time, on such P&I Advance Date. If after such notice the Trustee does not
receive the full amount of such P&I Advances and/or Servicer Remittance Amount
by 5:00 p.m., New York City time, on such P&I Advance Date, then the Trustee
shall (not later than 11:00 a.m., New York City time, on the related
Distribution Date) make, and if the Trustee fails to do so, any Fiscal Agent
shall (not later than 12:00 noon, New York City time, on the related
Distribution Date) make, the portion of such P&I Advances and advance the
portion of such Servicer Remittance Amount that was required to be, but was not,
made or remitted, as the case may be, by the Servicer at or prior to such time.
(b) The aggregate amount of P&I Advances to be made by the
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Monthly Payments (other than Balloon Payments)
and any Assumed Monthly Payments, in each case net of related Servicing Fees and
Workout Fees, due or deemed due, as the case may be, in respect of the Mortgage
Loans (including Balloon Mortgage Loans delinquent as to their respective
Balloon Payments) and any REO Mortgage Loans on their respective Due Dates
during the related Collection Period, in each case to the extent such amount was
not paid by or on behalf of the related Mortgagor or otherwise collected as of
the close of business on the related Determination Date; provided that, if an
Appraisal Reduction Amount exists with respect to any Required Appraisal Loan,
then, in the event of subsequent delinquencies thereon, the interest portion of
the P&I Advance in respect of such Required Appraisal Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal the
product of (i) the amount of the interest portion of such P&I Advance for such
Required Appraisal Loan for such Distribution Date without regard to this
proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator
of which shall equal the Stated Principal Balance of such Required Appraisal
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, and the denominator of which shall equal the Stated Principal
Balance of such Required Appraisal Loan immediately prior to such Distribution
Date.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by the Servicer
(or, if applicable, the Trustee or any Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable, good faith judgment and shall be evidenced by an Officer's
Certificate delivered to the Depositor, to the Special Servicer, to the
Controlling Class Representative and, if made by the Servicer, to the Trustee,
on or before the related P&I Advance Date, setting forth the basis for such
determination, accompanied by a copy of an Appraisal of the related Mortgaged
Property or REO Property performed within the twelve months preceding such
determination by a Qualified Appraiser, and further accompanied by any other
information, including engineers' reports, environmental surveys or similar
reports, that the Person making such determination may have obtained and that
support such determination. The Trustee and any Fiscal Agent shall be entitled
to conclusively rely on any nonrecoverability determination made by the Servicer
with respect to a particular P&I Advance. The Special Servicer shall promptly
furnish any party required to make P&I Advances hereunder with any information
in its possession regarding the Specially Serviced Mortgage Loans and REO
Properties as such party required to make P&I Advances may reasonably request.
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(d) The Trustee and any Fiscal Agent shall each be entitled to
reimbursement of the amount of any Servicer Remittance Amount advanced thereby
(together with any interest accrued thereon at the Reimbursement Rate) from
general collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account, and the defaulting Servicer shall indemnify the Trust for
any such interest so paid to the Trustee or any Fiscal Agent out of the
Collection Account.
(e) Subject to the next sentence and subsection (f) below, the
Servicer, the Trustee and any Fiscal Agent shall each be entitled to receive
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of each P&I Advance made thereby (with its own funds) for so long as such
P&I Advance is outstanding (or, if such P&I Advance was made prior to the end of
any grace period applicable to the subject delinquent Monthly Payment, for so
long as such P&I Advance is outstanding following the end of such grace period),
such interest to be payable: (i) at any time, out of Default Charges collected
on the particular Mortgage Loan or REO Mortgage Loan as to which such P&I
Advance relates; and (ii) to the extent that such Default Charges are
insufficient, but only with respect to that portion of the related P&I Advance
that has been or is being reimbursed pursuant to this Agreement, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. The Servicer shall reimburse itself, the Trustee or any
Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby as
soon as practicable after funds available for such purpose are deposited in the
Collection Account, and in no event shall interest accrue in accordance with
this Section 4.03(e) on any P&I Advance as to which the corresponding Late
Collection was received as of the related P&I Advance Date.
(f) Notwithstanding any other provision of this Agreement to the
contrary, with respect to any Mortgage Loan as to which the Servicer or an
Affiliate thereof owns an equity interest in the related Mortgagor (but only for
so long as the Servicer or such Affiliate owns such equity interest), if the
Servicer makes a P&I Advance with respect to such Mortgage Loan, it shall be
entitled to Advance Interest at the Reimbursement Rate on such P&I Advance only
to the extent of (i) any Default Interest and late payment charges received with
respect to such Mortgage Loan (net of any payment therefrom to the Trustee or
the Special Servicer in respect of interest on Advances related to such Mortgage
Loan), and (ii) any Liquidation Proceeds received with respect to such Mortgage
Loan that are in excess of (a) the outstanding principal balance of such
Mortgage Loan, (b) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate, (c) all other related and unreimbursed Servicing
Advances, (d) any related Liquidation Expenses, (e) any Additional Trust Fund
Expenses related to such Mortgage Loan, including Advance Interest, and (f) any
Liquidation Fee payable to the Special Servicer in respect of such Mortgage
Loan. This subsection shall not limit the entitlement of the Trustee to Advance
Interest on any P&I Advance made by the Trustee in respect of such Mortgage
Loan.
(g) With respect to any Mortgage Loan as to which the Servicer or
an Affiliate thereof owns an equity interest in the related Mortgagor (but only
for so long as the Servicer or such Affiliate owns such equity interest), the
Servicer shall be entitled to appoint another Person (which Person is not an
Affiliate of the Servicer) satisfactory to the Trustee to make P&I Advances with
respect to such Mortgage Loan (such Person, an "Alternate Advancer"), provided
that (i) the Servicer shall have given prior written notice specifying the terms
of such appointment (which shall also be satisfactory to the Trustee) to the
Special Servicer, the Trustee and the Rating Agencies and (ii) that the Trustee
shall have received written confirmation from each Rating Agency that such
appointment will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates. Such Alternate Advancer shall be entitled to receive
reimbursement on any P&I Advances made by it, together with interest thereon at
the Reimbursement Rate, as and to the same extent as the Servicer is entitled
thereto with respect to other Mortgage Loans (that is,
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without regard to subsection (f) of this Section 4.03) and the Servicer shall be
authorized to withdraw funds from the Collection Account (at the time and in the
manner otherwise provided in this Agreement without regard to subsection (f) of
this Section 4.03) in order to effect such reimbursement and such payment of
interest. The appointment of an Alternate Advancer shall not relieve the
Servicer of its ultimate responsibility to make any required Advance, and the
failure to make any required Advance by the Servicer or its Alternate Advancer
shall also constitute an Event of Default by the Servicer hereunder.
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01(a), the
Trustee shall determine the amount, if any, by which (i) the then aggregate of
the Class Principal Balances of all the Classes of Sequential Pay Certificates,
exceeds (ii) the aggregate Stated Principal Balance of the Mortgage Pool that
will be outstanding immediately following such Distribution Date. If such excess
does exist, then the Class Principal Balances of the Class C, Class B-7, Class
B-6, Class B-5, Class B-4, Class B-3, Class B-2, Class B-1, Class A-4, Class
A-3, Class A-2 and Class A-1C Certificates shall be reduced sequentially, in
that order, in each case, until such excess or the related Class Principal
Balance is reduced to zero (whichever occurs first). If, after the foregoing
reductions, the amount described in clause (i) of the second preceding sentence
still exceeds the amount described in clause (ii) of such sentence, then the
respective Class Principal Balances of the Class A-1A Certificates and the Class
A-1B Certificates shall be reduced on a pro rata basis in accordance with the
relative sizes of such Class Principal Balances, until any such remaining excess
is reduced to zero. All such reductions in the Class Principal Balances of the
respective Classes of the Sequential Pay Certificates shall constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions
to be made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(h), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests, exceeds (ii) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the Uncertificated Principal Balances of REMIC II
Regular Interest C, REMIC II Regular Interest B-7, REMIC II Regular Interest
B-6, REMIC II Regular Interest B-5, REMIC II Regular Interest B-4, REMIC II
Regular Interest B-3, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-1, REMIC II Regular Interest A-4, REMIC II Regular Interest A-3, REMIC II
Regular Interest A-2 and REMIC II Regular Interest A-1C shall be reduced
sequentially, in that order, in each case, until such excess or the related
Uncertificated Principal Balance is reduced to zero (whichever occurs first).
If, after the foregoing reductions, the amount described in clause (i) of the
second preceding sentence still exceeds the amount described in clause (ii) of
such sentence, then the respective Uncertificated Principal Balances of REMIC II
Regular Interest A-1A and REMIC II Regular Interest A-1B shall be reduced on a
pro rata basis in accordance with the relative sizes of such Uncertificated
Principal Balances, until any such remaining excess is reduced to zero. All such
reductions in the Uncertificated Principal Balances of the respective REMIC II
Regular Interests shall be deemed to constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions
to be made in respect of the REMIC I Regular Interests pursuant to Section
4.01(i), the Uncertificated Principal Balance of each REMIC I Regular Interest
(after taking account of such deemed distributions) shall be reduced to the
extent necessary to equal the Stated Principal Balance (or, if applicable in
cases involving the substitution of multiple Replacement Mortgage Loans, the
aggregate Stated Principal Balance) of each and every related Mortgage
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Loan and/or REO Mortgage Loan, as the case may be, that will be outstanding
immediately following such Distribution Date. All such reductions in the
Uncertificated Principal Balances of the respective REMIC I Regular Interests
shall be deemed to constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary information
from the Servicer, be responsible for performing all calculations necessary in
connection with the actual and deemed distributions to be made pursuant to
Section 4.01, the preparation of the Trustee Reports pursuant to Section 4.02(a)
and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Available Distribution Amount for each Distribution Date and shall allocate
such amount among Certificateholders in accordance with this Agreement. Absent
actual knowledge of an error therein, the Trustee shall have no obligation to
recompute, recalculate or otherwise verify any information provided to it by the
Servicer. The calculations by the Trustee contemplated by this Section 4.05
shall, in the absence of manifest error, be presumptively deemed to be correct
for all purposes hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective
forms attached hereto as Exhibits A-1 through A-6; provided, however, that any
of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the
Book-Entry Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Senior Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances (or, in the case of the Class S Certificates, initial Certificate
Notional Amounts) as of the Closing Date of not less than $10,000 and in any
whole dollar denomination in excess thereof. The Sequential Pay Certificates
(other than the Class A-1A and Class A-1B Certificates) will be issuable only in
denominations corresponding to initial Certificate Principal Balances as of the
Closing Date of not less than $100,000 and in any whole dollar denomination in
excess thereof. The Residual Interest Certificates and the Grantor Trust
Certificates will be issuable only in denominations representing Percentage
Interests in the related Class of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there shall
be maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate Registrar
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee is hereby initially
appointed (and hereby agrees to act in accordance with the terms hereof) as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Trustee may appoint, by a
written instrument delivered to the other parties hereto, any other bank or
trust company to act as Certificate Registrar under such conditions as the
Trustee may prescribe, provided that the Trustee shall not be relieved of any of
its duties or responsibilities hereunder as Certificate Registrar by
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reason of such appointment. If the Trustee resigns or is removed in accordance
with the terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Servicer, the
Special Servicer and the REMIC Administrator shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and
such request states that such Holders desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, within 30 days after the receipt of such
request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to the most recent list
of Certificateholders held by the Certificate Registrar. Every
Certificateholder, by receiving such access, acknowledges that the Certificate
Registrar will not be held accountable in any way by reason of the disclosure of
any information as to the names and addresses of any Certificateholder
regardless of the source from which such information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate is
to be made without registration under the Securities Act (other than in
connection with the initial issuance of the Certificates or a transfer of such
Certificate by the Depositor, the Underwriter or any of their respective
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached hereto as Exhibit F-1A; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached hereto as Exhibit F-1B and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached hereto either as Exhibit F-2A or as Exhibit F-2B; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust or of the Depositor, the Servicer, the
Special Servicer, the REMIC Administrator, the Trustee, any Fiscal Agent or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of a Non-Registered Certificate or interest therein
does not, in connection with the subject transfer, deliver to the Certificate
Registrar one of the certifications described in clause(ii) of the preceding
sentence or the Opinion of Counsel described in clause (iii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit F-2A or Exhibit F-2B
hereto are, with respect to the subject transfer, true and correct. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Non-Registered Certificate or interest
therein without registration or qualification. Any Certificateholder desiring to
effect a transfer, sale, pledge or other disposition of any Non-Registered
Certificate or interest therein shall, and does hereby agree to, indemnify the
Depositor, the Underwriter, the Trustee, any Fiscal Agent, the Servicer, the
Special Servicer, the REMIC Administrator and the Certificate Registrar against
any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration
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and/or qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
(c) No transfer of a Subordinated Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing such Certificate on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of such Certificate or interest therein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Subordinated Certificates or any transfer of a Subordinated Certificate by the
Depositor, the Underwriter or any of their respective Affiliates or, in the case
of a Book-Entry Subordinated Certificate, any transfer of such Certificate to a
successor Depository or to the applicable Certificate Owner in accordance with
Section 5.03(c), the Certificate Registrar shall refuse to register the transfer
of a Subordinated Certificate unless it has received from the prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) a certification to the effect that the
purchase and continued holding of such Certificate by such prospective
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) a certification of facts and an
Opinion of Counsel (which Opinion of counsel shall not be an expense of the
Trustee, the Certificate Registrar or the Trust) which otherwise establish to
the reasonable satisfaction of the Trustee that such transfer will not result in
a violation of Section 406 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of certification attached hereto as Exhibit G is
acceptable for purposes of the preceding sentence. If any Transferee of a
Subordinated Certificate or any interest therein does not, in connection with
the subject transfer, deliver to the Certificate Registrar a certification
and/or Opinion of Counsel as provided by the second preceding sentence, then
such Transferee shall be deemed to have represented and warranted that either:
(i) such Transferee is not a Plan and is not directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and continued holding
of such Certificate or interest therein by such Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transactions Class Exemption
95-60.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Interest Certificate shall be deemed by
the acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee under clause (ii) (A) below to
deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii) (B) below to
negotiate the terms of any mandatory disposition and to execute
all instruments of Transfer and to do all other things necessary
in connection with any such disposition. The rights of each
Person acquiring any Ownership Interest in a Residual Interest
Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Interest Certificate shall be a
Permitted Transferee and shall promptly notify the REMIC
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Administrator and the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Interest Certificate, the
Certificate Registrar shall require delivery to it, and shall
not register the Transfer of any Residual Interest Certificate
until its receipt, of an affidavit and agreement substantially
in the form attached hereto as Exhibit H-1 (a "Transfer
Affidavit and Agreement"), from the proposed Transferee,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Residual Interest Certificate
that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership
Interest in a Residual Interest Certificate it will endeavor
to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause
(B) above, if a Responsible Officer of either the Trustee or
the Certificate Registrar has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer
of an Ownership Interest in a Residual Interest Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Interest Certificate shall agree (1) to
require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Interest
Certificate and (2) not to transfer its Ownership Interest in
such Residual Interest Certificate unless it provides to the
Certificate Registrar and the Trustee a certificate
substantially in the form attached hereto as Exhibit H-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Interest Certificate, by purchasing
such Ownership Interest, agrees to give the REMIC
Administrator and the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Residual Interest
Certificate, if it is, or is holding an Ownership Interest in
a Residual Interest Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Residual Interest Certificate in violation of the provisions
of this Section 5.02(d), then the last preceding Holder of
such Residual Interest Certificate that was in compliance with
the provisions of this Section 5.02(d) shall be restored, to
the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of
such Residual Interest Certificate. None of the Depositor, the
Trustee or the Certificate Registrar shall be under any
liability to any Person for any registration of Transfer of a
Residual Interest Certificate that is in fact not permitted by
this Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of
this Agreement.
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(B) If any purported Transferee shall become a Holder
of a Residual Interest Certificate in violation of the
restrictions in this Section 5.02(d), then, to the extent that
retroactive restoration of the rights of the preceding Holder
of such Residual Interest Certificate as described in clause
(ii) (A) above shall be invalid, illegal or unenforceable, the
Trustee shall have the right but not the obligation, to cause
the transfer of such Residual Interest Certificate to a
Permitted Transferee selected by the Trustee on such terms as
the Trustee may choose, and the Trustee shall not be liable to
any Person having an Ownership Interest in such Residual
Interest Certificate as a result of its exercise of such
discretion. Such purported Transferee shall promptly endorse
and deliver such Residual Interest Certificate in accordance
with the instructions of the Trustee. Such Permitted
Transferee may be the Trustee itself or any Affiliate of the
Trustee.
(iii) The REMIC Administrator shall make available to the IRS and
to those Persons specified by the REMIC Provisions all
information furnished to it by the other parties hereto necessary
to compute any tax imposed (A) as a result of the Transfer of an
Ownership Interest in a Residual Interest Certificate to any
Person who is a Disqualified Organization, including the
information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Interest Certificate and (B) as a
result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate
or organization described in Section 1381 of the Code that holds
an Ownership Interest in a Residual Interest Certificate having
as among its record holders at any time any Person which is a
Disqualified Organization, and each of the other parties hereto
shall furnish to the REMIC Administrator all information in its
possession necessary for the REMIC Administrator to discharge
such obligation. The Person holding such Ownership Interest shall
be responsible for the reasonable compensation of the REMIC
Administrator for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated,
provided that there shall have been delivered to the Trustee and
the REMIC Administrator the following:
(A) written confirmation from each Rating Agency to
the effect that the modification of, addition to or
elimination of such provisions will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates;
and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the REMIC Administrator,
obtained at the expense of the party seeking such modification
of, addition to or elimination of such provisions (but in no
event at the expense of the Trustee, the REMIC Administrator
or the Trust), to the effect that doing so will not (1) cause
any REMIC Pool to cease to qualify as a REMIC or be subject to
an entity-level tax caused by the Transfer of any Residual
Interest Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a Person that
is not a Permitted Transferee.
(e) The Trust has not been registered as an investment company
under the Investment Company Act. Accordingly, no transfer of any Class B-4,
Class B-5, Class B-6, Class B-7 or Class C
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Certificate shall be made to any Person other than an Institutional Accredited
Investor or a Qualified Institutional Buyer, and no transfer of any Residual
Interest Certificate or Grantor Trust Certificate shall be made to any Person
other than a Qualified Institutional Buyer. If a transfer of any such
Certificate is to be made, then the Trustee shall require, in order to assure
compliance with the foregoing, that the prospective transferee of such
Certificate (or the transferor on its behalf) certify in writing that the
prospective transferee is a Qualified Institutional Buyer or, alternatively, but
solely in the case of a Class B-4, Class B-5, Class B-6, Class B-7 or Class C
Certificate, an Institutional Accredited Investor.
(f) If a Person is acquiring any Non-Registered Certificate,
Subordinated Certificate or Residual Interest Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the applicable foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as set forth in Subsections (b), (c), (d) and/or (e), as appropriate, of this
Section 5.02.
(g) Subject to the preceding provisions of this Section 5.02,
upon surrender for registration of transfer of any Certificate at the offices of
the Certificate Registrar maintained for such purpose, the Trustee shall execute
and the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(h) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
evidencing a like aggregate Percentage Interest, upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute and the Certificate Registrar shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(i) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(j) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(k) All Certificates surrendered for transfer and exchange shall
be physically cancelled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such cancelled Certificates in accordance with its
standard procedures.
(l) The Certificate Registrar or the Trustee shall provide to
each of the other parties hereto, upon reasonable written request and at the
expense of the requesting party, an updated copy of the Certificate Register.
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SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A, Class B-1, Class B-2 and Class B-3
Certificates shall, in the case of each Class thereof, initially be issued as
one or more Certificates registered in the name of the Depository or its nominee
and, except as provided in Section 5.03(c), transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and, subject to Section 5.02(c), transfer their respective Ownership
Interests in and to such Certificates through the book-entry facilities of the
Depository and, except as provided in Section 5.03(c) below, shall not be
entitled to fully registered, physical Certificates ("Definitive Certificates")
in respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing each such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Depositor, the Servicer, the Special Servicer, the REMIC
Administrator, the Trustee, any Fiscal Agent and the Certificate Registrar may
for all purposes, including the making of payments due on the Book-Entry
Certificates, deal with the Depository as the authorized representative of the
Certificate Owners with respect to such Certificates for the purposes of
exercising the rights of Certificateholders hereunder. The rights of Certificate
Owners with respect to the Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by Certificateholders
and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to any Class of
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to any Class of Book-Entry
Certificates (or any portion of any Class thereof), the Certificate Registrar
shall notify all affected Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of any Class of Book-Entry Certificates (or any portion
of any Class thereof) by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Trustee shall
execute, and the Certificate Registrar shall authenticate and deliver, the
Definitive Certificates in respect of such Class (or portion thereof) to the
Certificate Owners identified in such instructions. None of the Depositor, the
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Book-Entry Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
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SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable
fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC Pool, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Servicer, the Special Servicer, the REMIC Administrator, the
Trustee, any Fiscal Agent, the Certificate Registrar and any agent of any of
them may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, and none of the Depositor,
the Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any
Fiscal Agent, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
be substantially in the form of Exhibit L-1 hereto (or such other form as shall
be reasonably acceptable to the Trustee) and specify, in reasonable detail
satisfactory to the Trustee, the Class and Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of the Book-Entry Certificate
beneficially owned, the value of such Person's interest in such Certificate and
any intermediaries through which such Person's Ownership Interest in such
Book-Entry Certificate is held; provided, however, that the Trustee shall not
knowingly recognize such Person as a Certificate Owner if such Person, to the
knowledge of a Responsible Officer of the Trustee, acquired its Ownership
Interest in a Book-Entry Certificate in violation of Section 5.02(c), or if such
Person's certification that it is a Certificate Owner is in direct conflict with
information obtained by the Trustee from the Depository, Depository Participants
and/or indirect participating brokerage firms for which Depository Participants
act as agents, with respect to the identity of a Certificate Owner. The Trustee
shall exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to
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its beneficial ownership of any Book-Entry Certificate an opportunity to resolve
any discrepancies between the information provided and any other information
available to the Trustee.
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ARTICLE VI
THE DEPOSITOR, THE SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Depositor, the Servicer, the
Special Servicer and the REMIC Administrator.
The Depositor, the Servicer, the Special Servicer and the REMIC
Administrator shall be liable in accordance herewith only to the extent of the
respective obligations specifically imposed upon and undertaken by the
Depositor, the Servicer, the Special Servicer and the REMIC Administrator
herein.
SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, the Servicer, the Special Servicer or
the REMIC Administrator.
Subject to the following paragraph, each of the Depositor, the
Servicer, the Special Servicer and the REMIC Administrator shall keep in full
effect its existence, rights and franchises as a legal entity under the laws of
the jurisdiction wherein it was organized, and each shall obtain and preserve
its qualification to do business as a foreign entity in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Each of the Depositor, the Servicer, the Special Servicer and the
REMIC Administrator may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case,
any Person resulting from any merger or consolidation to which the Depositor,
the Servicer, the Special Servicer or the REMIC Administrator shall be a party,
or any Person succeeding to the business of the Depositor, the Servicer, the
Special Servicer or the REMIC Administrator, shall be the successor of the
Depositor, the Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Servicer or the Special Servicer
unless such succession will not result in an Adverse Rating Event with respect
to any Class of Rated Certificates (as confirmed in writing to the Trustee by
each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and the REMIC
Administrator.
None of the Depositor, the Servicer, the Special Servicer or the
REMIC Administrator shall be under any liability to the Trust, the Trustee or
the Certificateholders for any action taken or not taken in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Servicer, the Special Servicer or
the REMIC Administrator against any liability to the Trust, the Trustee or the
Certificateholders for the breach of a representation or warranty made by such
party herein, or against any expense or liability specifically required to be
borne by such party without right of reimbursement pursuant to the terms hereof,
or against any liability which would otherwise be imposed by reason of
misfeasance, bad faith or negligence in the performance of, or reckless
disregard of, such party's
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obligations or duties hereunder. The Depositor, the Servicer, the Special
Servicer, the REMIC Administrator and any director, manager, member, officer,
employee or agent of any such party may rely in good faith on any document of
any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Servicer, the
Special Servicer, the REMIC Administrator and any director, manager, member,
officer, employee or agent of any such party shall be indemnified and held
harmless by the Trust out of the Collection Account against any loss, liability,
cost or expense (including reasonable legal expenses) incurred in connection
with any legal action relating to this Agreement or the Certificates, other than
any loss, liability, cost or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof or otherwise incidental to the performance
of obligations and duties hereunder, including, in the case of the Servicer or
Special Servicer, the prosecution of an enforcement action in respect of any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement); or (ii)
incurred in connection with any legal action against such party resulting from
any breach of a representation or warranty made herein, any misfeasance, bad
faith or negligence in the performance of, or reckless disregard of, obligations
or duties hereunder or any willful or negligent violation of applicable law.
None of the Depositor, the Servicer, the Special Servicer or the REMIC
Administrator shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, except in the case of a legal action the costs of which it
is specifically required hereunder to bear, in its opinion does not involve it
in any ultimate expense or liability; provided, however, that the Depositor, the
Servicer, the Special Servicer or the REMIC Administrator may in its discretion
undertake any such action which it may reasonably deem necessary or desirable
with respect to the enforcement and/or protection of the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, and any liability
resulting therefrom, shall be expenses, costs and liabilities of the Trust, and
the Depositor, the Servicer, the Special Servicer and the REMIC Administrator
shall be entitled to be reimbursed therefor from the Collection Account as
provided in Section 3.05(a).
SECTION 6.04. Servicer, Special Servicer and REMIC Administrator
Not to Resign.
The REMIC Administrator, the Servicer and the Special Servicer
may each resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the REMIC
Administrator, the Servicer or the Special Servicer, as the case may be, so
causing such a conflict being of a type and nature carried on by the REMIC
Administrator, the Servicer or the Special Servicer, as the case may be, at the
date of this Agreement). Any such determination requiring the resignation of the
REMIC Administrator, the Servicer or the Special Servicer, as applicable, shall
be evidenced by an Opinion of Counsel to such effect which shall be delivered to
the Trustee. Unless applicable law requires the REMIC Administrator's, the
Servicer's or the Special Servicer's (as the case may be) resignation to be
effective immediately, and the Opinion of Counsel delivered pursuant to the
prior sentence so states, no such resignation shall become effective until the
Trustee or other successor shall have assumed the responsibilities and
obligations of the resigning party in accordance with Section 6.06 or Section
7.02 hereof. In addition, the Servicer and the Special Servicer shall each have
the right to resign at any other time provided that (i) a willing successor
thereto (including any such successor proposed by the resigning party)
acceptable to the Depositor has been found , (ii) each of the Rating Agencies
confirms in writing that the successor's appointment will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates, (iii) the
resigning party pays all costs and expenses in connection with such transfer,
and (iv) the successor accepts appointment prior to the effectiveness of such
resignation. Neither
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the Servicer nor the Special Servicer shall be permitted to resign except as
contemplated above in this Section 6.04.
Consistent with the foregoing, none of the Servicer, the Special
Servicer or the REMIC Administrator shall (except in connection with any
resignation thereby permitted pursuant to the next to last sentence of the prior
paragraph or as otherwise expressly provided herein, including the provisions of
Section 3.22 and/or Section 6.02) assign or transfer any of its rights, benefits
or privileges hereunder to any other Person or delegate to, subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, the entire amount of
compensation payable to the Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, that accrues pursuant hereto from and after
the date of such transfer shall be payable to such successor.
Notwithstanding the foregoing, if the same Person is acting as
both REMIC Administrator and Trustee, and such Person resigns as Trustee
pursuant to Section 8.07, then such Person shall be deemed to have also resigned
as the REMIC Administrator, and the successor Trustee shall also act as
successor REMIC Administrator or shall appoint a successor REMIC Administrator.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect
of the Servicer, the Special Servicer and the REMIC
Administrator.
The Servicer, the Special Servicer and the REMIC Administrator
shall each afford the Depositor, the Trustee, the Controlling Class
Representative and each Rating Agency, upon reasonable notice, during normal
business hours access to all records maintained by it in respect of its rights
and obligations hereunder and access to such of its officers as are responsible
for such obligations. Upon reasonable request, the Servicer, the Special
Servicer and the REMIC Administrator shall each furnish the Depositor, the
Trustee and each Rating Agency with its most recent financial statements and
such other information as it possesses, and which it is not prohibited by
applicable law or contract from disclosing, regarding its business, affairs,
property and condition, financial or otherwise; provided that none of the
Depositor or the Trustee may disclose the contents of such financial statements
or other information to non-affiliated third parties (other than accountants,
attorneys, financial advisors and other representatives retained to help it
evaluate such financial statements or other information), unless it is required
to do so under applicable securities laws or is otherwise compelled to do so as
a matter of law. The Servicer, the Special Servicer and the REMIC Administrator
may each affix to any such information described in this Section 6.05 provided
by it any disclaimer it deems appropriate in its reasonable discretion. The
Depositor may, but is not obligated to, enforce the obligations of the Servicer,
the Special Servicer and the REMIC Administrator hereunder and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Servicer, the Special Servicer or the REMIC Administrator hereunder or
exercise the rights of the Servicer, the Special Servicer or the REMIC
Administrator hereunder; provided, however, that none of the Servicer, the
Special Servicer or the REMIC Administrator shall be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Servicer, the Special Servicer or the REMIC
Administrator and is not obligated to supervise the performance of the Servicer,
the Special Servicer or the REMIC Administrator under this Agreement or
otherwise.
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SECTION 6.06. Designation of Special Servicer by the Controlling
Class.
The Holder or Holders of the Certificates evidencing a majority
of the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person to replace any existing Special Servicer or any
Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer. Such Holder or Holders shall so designate a Person to so serve as
successor Special Servicer by the delivery to the Trustee, the Servicer and the
existing Special Servicer of a written notice stating such designation. The
Trustee shall, promptly after receiving any such notice, deliver to the Rating
Agencies an executed Notice and Acknowledgment in the form attached hereto as
Exhibit I-1. The designated Person shall become the Special Servicer on the date
as of which the Trustee shall have received: (i) written confirmation from each
of the Rating Agencies that the appointment of such Person will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates; (ii) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person; and (iii) an Opinion of Counsel
(which shall not be an expense of the Trustee or the Trust) substantially to the
effect that (A) the designation of such Person to serve as Special Servicer is
in compliance with this Section 6.06 and all other applicable provisions of this
Agreement, (B) the designated Person is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (C) the
Acknowledgment of Proposed Special Servicer has been duly authorized, executed
and delivered by the designated Person and (D) upon the execution and delivery
of the Acknowledgment of Proposed Special Servicer, the designated Person shall
be bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any existing Special Servicer
shall be deemed to have been terminated simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided, however, that the
terminated Special Servicer shall continue to be obligated to pay and entitled
to receive all amounts accrued or owing by or to it under this Agreement on or
prior to the effective date of such termination, whether in respect of Servicing
Advances or otherwise, and it and its directors, managers, members, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination. Such terminated Special Servicer
shall cooperate with the Trustee and the replacement Special Servicer in
effecting the transfer of the terminated Special Servicer's responsibilities and
rights hereunder to its successor, including the transfer within two Business
Days to the replacement Special Servicer for administration by it of all cash
amounts that at the time are or should have been credited by the Special
Servicer to the REO Account or any Servicing Account or should have been
delivered to the Servicer or that are thereafter received by or on behalf of it
with respect to any Mortgage Loan or REO Property. If the termination of the
Special Servicer was without cause, the costs and expenses of any such transfer
shall in no event be paid out of the Trust Fund, and instead shall be paid by
the successor Special Servicer or the Holders of the Controlling Class that
voted to remove the Special Servicer, as such parties may agree.
SECTION 6.07. Servicer or Special Servicer as Owner of a
Certificate.
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 of (or, in
the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Servicer or the Special Servicer proposes to take any action
(including for this purpose, omitting to take a particular action) that is not
expressly prohibited by the terms hereof and would not, in the Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Servicer's or the
Special Servicer's reasonable, good faith judgment, be considered by other
Persons to violate the Servicing Standard, then the Servicer or the Special
Servicer may (but need not) seek the approval of the Certificateholders to such
action by delivering to the
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Trustee a written notice that (a) states that it is delivered pursuant to this
Section 6.07, (b) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Servicer or the Special Servicer, as the
case may be, or by an Affiliate thereof and (c) describes in reasonable detail
the action that the Servicer or the Special Servicer, as the case may be,
proposes to take. The Trustee, upon receipt of such notice, shall forward it to
the Certificateholders (other than the Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate), together with a request
for approval by the Certificateholders of each such proposed action. If at any
time Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Servicer or its Affiliates or the Special Servicer or its
Affiliates, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Servicer or the Special Servicer, as
the case may be, shall act as proposed in the written notice, such action shall
be deemed to comply with the Servicing Standard. The Trustee shall be entitled
to reimbursement from the Servicer or the Special Servicer, as applicable, for
the reasonable expenses of the Trustee incurred pursuant to this paragraph. It
is not the intent of the foregoing provision that the Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, but rather in the case of unusual
circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) any failure by the Servicer to deposit into the Collection
Account any amount required to be so deposited under this
Agreement, which failure continues unremedied for one Business
Day following the date on which such deposit was first required
to be made; or
(ii) any failure by the Special Servicer to deposit into the
REO Account or the Collection Account, or to remit to the
Servicer for deposit into the Collection Account, any amount
required to be so deposited or remitted under this Agreement,
which failure continues unremedied for one Business Day following
the date on which such deposit or remittance, as the case may be,
was first required to be made; or
(iii) any failure by the Servicer to remit to the Trustee for
deposit into the Distribution Account, on any P&I Advance Date,
the full amount of P&I Advances required to be made on such date
or, on any Servicer Remittance Date, the full amount of the
Servicer Remittance Amount required to be remitted on such date,
which failure continues unremedied until 5:00 p.m. (New York City
time) on such P&I Advance Date or Servicer Remittance Date, as
the case may be; or
(iv) any failure by the Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of three Business Days
following the date on which notice shall have been given to the
Servicer by the Trustee as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or
request the Servicer to make) any Servicing Advance required to
be made by it hereunder, which Servicing Advance remains unmade
for a period of three Business Days following the date on which
notice has been given to the Special Servicer by the Trustee as
provided in Section 3.11(f); or
(vi) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Servicer
or the Special Servicer, as the case may be, contained in this
Agreement, which failure continues unremedied for a period of 30
days (or, in the case of payment of insurance premiums, for a
period of 15 days) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given
to the Servicer or the Special Servicer, as the case may be, by
any other party hereto or to the Servicer or the Special
Servicer, as the case may be, (with a copy to each other party
hereto) by the Holders of Certificates entitled to at least 25%
of the Voting Rights; or
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(vii) any failure on the part of the REMIC Administrator duly
to observe or perform in any material respect any of the
covenants or agreements on the part of the REMIC Administrator
contained in this Agreement which continues unremedied for a
period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the
REMIC Administrator (with a copy to each other party hereto) by
the Holders of Certificates entitled to at least 25% of the
Voting Rights; or
(viii) any breach on the part of the Servicer or the Special
Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of
any Class of Certificateholders and which continues unremedied
for a period of 60 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given
to the Servicer or the Special Servicer, as the case may be, by
any other party hereto or to the Servicer or the Special
Servicer, as the case may be, (with a copy to each other party
hereto) by the Holders of Certificates entitled to at least 25%
of the Voting Rights; or
(ix) any breach on the part of the REMIC Administrator of any
representation or warranty contained in this Agreement that
materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of
30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to the REMIC
Administrator by any other party hereto or to the REMIC
Administrator (with a copy to each other party hereto) by the
Holders of Certificates entitled to at least 25% of the Voting
Rights; or
(x) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary
case under any present or future federal or state bankruptcy,
insolvency or similar law for the appointment of a conservator,
receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Servicer, the Special Servicer or the REMIC
Administrator and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(xi) the Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to
it or of or relating to all or substantially all of its property;
or
(xii) the Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or
take any corporate action in furtherance of the foregoing; or
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(xiii) the Servicer's or the Special Servicer's acting in such
capacity shall have resulted in an Adverse Rating Event with
respect to any Class of Rated Certificates, or the Trustee shall
have received written notice from either Rating Agency that the
Servicer's or the Special Servicer's continuing to act in such
capacity shall result in an Adverse Rating Event with respect to
any Class of Rated Certificates.
When a single entity acts as Servicer, Special Servicer and REMIC Administrator,
or in any two of the foregoing capacities, an Event of Default (other than an
event described in clause (xiii) above) in one capacity shall constitute an
Event of Default in each such capacity.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Holders of Certificates
entitled to not less than 25% of the Voting Rights or if the relevant Event of
Default is one described in any of clauses (iii) and (x) through (xiii) of
Section 7.01(a), the Trustee shall (subject to applicable bankruptcy or
insolvency law in the case of clauses (x) through (xii) of Section 7.01(a)),
terminate, by notice in writing to the Defaulting Party (with a copy of such
notice to each other party hereto), all of the rights and obligations (accruing
from and after such notice) of the Defaulting Party under this Agreement and in
and to the Trust Fund (other than as a Holder of any Certificate). From and
after the receipt by the Defaulting Party of such written notice, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section, and, without limitation, the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Each of the Servicer and the Special Servicer
agrees that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records requested thereby to enable the Trustee to assume the Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall otherwise
cooperate with the Trustee in effecting the termination of the Servicer's or
Special Servicer's, as the case may be, responsibilities and rights hereunder,
including the transfer within two Business Days to the Trustee for
administration by it of all cash amounts that at the time are or should have
been credited by the Servicer to the Collection Account, the Distribution
Account or any Servicing Account (if it is the Defaulting Party) or by the
Special Servicer to the REO Account, the Collection Account or any Servicing
Account (if it is the Defaulting Party) or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or REO Property (provided,
however, that the Servicer and the Special Servicer each shall, if terminated
pursuant to this Section 7.01(b), continue to be obligated to pay and entitled
to receive all amounts accrued or owing by or to it under this Agreement on or
prior to the date of such termination, whether in respect of Advances or
otherwise, and it and its directors, managers, members, officers, employees and
agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination). Any costs or expenses (including those of
any other party hereto) incurred in connection with any actions to be taken by
the Servicer or Special Servicer pursuant to this paragraph shall be borne by
the Servicer or Special Servicer, as the case may be (and, in the case of the
Trustee's costs and expenses, if not paid within a reasonable time, shall be
borne by the Trust out of the Collection Account).
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(c) If any Event of Default with respect to the REMIC
Administrator shall occur and be continuing, then, and in each and every such
case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee (or, if the Trustee is also the REMIC Administrator,
the Servicer) may, and at the written direction of the Holders of Certificates
entitled to not less than a majority of the Voting Rights, the Trustee (or, if
the Trustee is also the REMIC Administrator, the Servicer) shall, terminate, by
notice in writing to the REMIC Administrator (with a copy to each of the other
parties hereto), all of the rights and obligations of the REMIC Administrator
under this Agreement. From and after the receipt by the REMIC Administrator of
such written notice (or, if the Trustee is also the REMIC Administrator, from
and after such time as another successor appointed as contemplated by Section
7.02 accepts such appointment), all authority and power of the REMIC
Administrator under this Agreement shall pass to and be vested in the Trustee
(or such other successor) pursuant to and under this Section, and, without
limitation, the Trustee (or such other successor) is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the REMIC
Administrator, 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. The REMIC
Administrator agrees promptly (and in any event no later than ten Business Days
subsequent to its receipt of the notice of the termination) to provide the
Trustee (or, if the Trustee is also the REMIC Administrator, such other
successor appointed as contemplated by Section 7.02) with all documents and
records requested thereby to enable the Trustee (or such other successor) to
assume the REMIC Administrator's functions hereunder, and to cooperate with the
Trustee (or such other successor) in effecting the termination of the REMIC
Administrator's responsibilities and rights hereunder (provided, however, that
the REMIC Administrator shall continue to be obligated to pay and entitled to
receive all amounts accrued or owing by or to it under this Agreement on or
prior to the date of such termination, and it and its directors, managers,
members, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination). Any costs or
expenses (including those of any other party hereto) incurred in connection with
any actions to be taken by the REMIC Administrator pursuant to this paragraph
shall be borne by the REMIC Administrator.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer, the Special Servicer or the
REMIC Administrator resigns pursuant to the first paragraph of Section 6.04 or
receives a notice of termination pursuant to Section 7.01, the Trustee shall be
the successor in all respects to the Servicer, the Special Servicer or (unless
it had also been acting as such) the REMIC Administrator, as the case may be, in
its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, by the terms
and provisions hereof, including, if the Servicer is the resigning or terminated
party, the Servicer's obligation to make P&I Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Servicer's,
the Special Servicer's or the REMIC Administrator's, as the case may be, failure
to cooperate or to provide information or monies as required by Section 7.01
shall not be considered a default by the Trustee hereunder; and provided,
further, that, in the case of a resigning or terminated Special Servicer, the
Trustee shall not so act as successor if an alternative successor is earlier
appointed pursuant to Section 6.06. Neither the Trustee nor any other successor
shall be liable for any of the representations and warranties of the resigning
or terminated party or for any losses incurred by the resigning or terminated
party pursuant to Section 3.06 hereunder nor shall the Trustee nor any other
successor be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to for future
services rendered if the resigning or terminated party had
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continued to act hereunder. Notwithstanding the above, if it is unwilling to so
act, the Trustee may (and, if it is unable to so act, or if the Servicer or the
Special Servicer is the resigning or terminated party and the Trustee is not
approved as an acceptable servicer or special servicer, as the case may be, by
each Rating Agency, or if the REMIC Administrator is the resigning or terminated
party and the Trustee had been acting in such capacity, or if the Holders of
Certificates entitled to a majority of all the Voting Rights so request in
writing, the Trustee shall) promptly appoint, or petition a court of competent
jurisdiction to appoint, any established and qualified institution as the
successor to the Servicer, the Special Servicer or the REMIC Administrator, as
the case may be, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer, the Special Servicer or
the REMIC Administrator, as the case may be, hereunder; provided, however, that
such appointment does not result in an Adverse Rating Event with respect to any
Class of Rated Certificates (as confirmed in writing to the Trustee by each
Rating Agency). No appointment of a successor to the Servicer, the Special
Servicer or the REMIC Administrator hereunder shall be effective until the
assumption by such successor of all its responsibilities, duties and liabilities
hereunder, and pending such appointment and assumption, the Trustee shall act in
such capacity as hereinabove provided. In connection with any such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Servicer, the Special Servicer or
the REMIC Administrator pursuant to Section 6.04, any termination of the
Servicer, the Special Servicer or the REMIC Administrator pursuant to Section
7.01, any appointment of a successor to the Servicer, the Special Servicer or
the REMIC Administrator pursuant to Section 6.04 or 7.02 or the effectiveness of
any designation of a new Special Servicer pursuant to Section 6.06, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence
of any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual notice of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided, however, that an
Event of Default under clause (i), clause (ii), clause (iii) or clause (xiii)
of Section 7.01(a) may be waived only by all of the Certificateholders of the
affected Classes. Upon any such waiver of an Event of Default, such Event of
Default shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other Event
of Default or impair any right consequent thereon except to the extent expressly
so waived. Notwithstanding any other provisions of this Agreement, for purposes
of waiving any Event of Default pursuant to this Section 7.04, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor shall
be entitled to the same Voting
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Rights with respect to the matters described above as they would if registered
in the name of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right (exercisable subject to
Section 8.01(a)), in its own name and as trustee of an express trust, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
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ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), the Trustee shall examine
them to determine whether they conform to the requirements of this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Servicer or the Special Servicer and accepted by the Trustee in
good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all Events of Default which may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Agreement.
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts.
(iii) The Trustee shall not be 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 at least 25% (or, as to any particular
matter, any higher percentage as may be specifically provided for
hereunder) of the Voting Rights relating to the time, method
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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) The Trustee shall not be required to take action with
respect to, or be deemed to have notice or knowledge of, any
default or Event of Default (except an Event of Default under
Section 7.01(a)(xiii) or the Servicer's failure to deliver any
monies, including P&I Advances, or to provide any report,
certificate or statement to the Trustee when required pursuant to
this Agreement) unless a Responsible Officer of the Trustee shall
have received written notice or otherwise have actual knowledge
thereof. Otherwise, the Trustee may conclusively assume that
there is no such default or Event of Default.
(v) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.01, the Trustee
shall have no duty, except as expressly provided in Section
2.01(c) or Section 2.01(e) or in its capacity as successor
Servicer or successor Special Servicer, (A) to cause any
recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to
cause the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any
thereof, (B) to cause the maintenance of any insurance, and (C)
to confirm or verify the contents of any reports or certificates
of the Servicer or Special Servicer delivered to the Trustee
pursuant to this Agreement reasonably believed by the Trustee to
be genuine and without error and to have been signed or presented
by the proper party or parties.
(vi) For as long as the Person that serves as Trustee
hereunder also serves as Custodian, Certificate Registrar and/or
REMIC Administrator, the protections, immunities and indemnities
afforded to the Trustee hereunder shall also be afforded to such
Person in its capacity as Custodian, Certificate Registrar and/or
REMIC Administrator, as the case may be.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and without error and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith
and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make
any investigation of matters arising hereunder or to institute,
conduct or defend any litigation hereunder or in relation hereto
at the request, order or direction of any of the
Certificateholders, unless (in the Trustee's reasonable opinion)
such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee
shall not be
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required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it; provided, however, that nothing
contained herein shall relieve the Trustee of the obligation,
upon the occurrence of an Event of Default which has not been
waived or cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(iv) neither the Trustee nor any Fiscal Agent appointed
thereby shall be personally liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default and after
the waiver or curing of all Events of Default which may have
occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights;
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) except as contemplated by Section 8.06 and/or Section
8.14, the Trustee shall not be required to give any bond or
surety in respect of the execution of the trusts created hereby
or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers
vested in it by this Agreement or perform any of its duties
hereunder either directly or by or through agents or
attorneys-in-fact, provided that the use of agents or
attorneys-in-fact shall not be deemed to relieve the Trustee of
any of its duties and obligations hereunder (except as expressly
set forth herein);
(viii) neither the Trustee nor any Fiscal Agent appointed
thereby shall be responsible for any act or omission of the
Servicer, the Special Servicer or the REMIC Administrator (unless
the Trustee is acting as Servicer, Special Servicer or REMIC
Administrator, as the case may be) or of the Depositor.
(ix) neither the Trustee nor the Certificate Registrar shall
have any obligation or duty to monitor, determine or inquire as
to compliance with any restriction on transfer imposed under
Article V under this Agreement or under applicable law with
respect to any transfer of any Certificate or any interest
therein, other than to require delivery of the certification(s)
and/or Opinions of Counsel described in said Article applicable
with respect to changes in registration or record ownership of
Certificates in the Certificate Register and to examine the same
to determine substantial compliance with the express requirements
of this Agreement; and the Trustee and Certificate Registrar
shall have no liability for transfers, including transfers made
through the book-entry facilities of the Depository or between or
among Depository Participants
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or beneficial owners of the Certificates, made in violation of
applicable restrictions except for its failure to perform its
express duties in connection with changes in registration or
record ownership in the Certificate Register.
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than
the statements attributed to, and the representations and warranties of, the
Trustee and/or any Fiscal Agent in Article II, and the signature of the Trustee
set forth on each outstanding Certificate) shall not be taken as the statements
of the Trustee or any Fiscal Agent, and neither the Trustee nor any Fiscal Agent
assumes any responsibility for their correctness. Neither the Trustee nor any
Fiscal Agent makes any representation as to the validity or sufficiency of this
Agreement (except as regards the enforceability of this Agreement against it) or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
any Fiscal Agent shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Servicer, the Special Servicer or the REMIC
Administrator (in each case, unless the Trustee is acting in such capacity).
Neither the Trustee nor any Fiscal Agent shall be responsible for the accuracy
or content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Servicer, the Special
Servicer or the REMIC Administrator (in each case, unless the Trustee is acting
in such capacity), and accepted by the Trustee or such Fiscal Agent, as the case
may be, in good faith, pursuant to this Agreement. Neither the Trustee nor any
Fiscal Agent shall be responsible for the legality or validity of this Agreement
(other than insofar as it relates to the obligations of the Trustee or such
Fiscal Agent, as the case may be, hereunder) or the validity, priority,
perfection or sufficiency of any security, lien or security interest granted to
it hereunder or the filing of any financing statements or continuation
statements, except to the extent set forth in Section 2.01(c) and Section
2.01(e) or to the extent the Trustee is acting as Servicer or Special Servicer.
The Trustee shall not be required to record this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee (in its individual or any other capacity), any Fiscal
Agent or any Affiliate of either of them may become the owner or pledgee of
Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or an Affiliate of either of them, as the case may be.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
and by Trustee, REMIC Administrator and Fiscal
Agent.
(a) On each Distribution Date, the Trustee shall withdraw from
the Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Mortgage Loans
through the end of the most recently ended calendar month, as compensation for
all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties of
the Trustee hereunder. As to each Mortgage Loan and REO Mortgage Loan, the
Trustee's Fee shall
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accrue during each calendar month, commencing with June 1998, at the Trustee's
Fee Rate on a principal amount equal to the Stated Principal Balance of such
Mortgage Loan or REO Mortgage Loan immediately following the Distribution Date
in such calendar month (or, in the case of June 1998, on a principal amount
equal to the Cut-off Date Balance of the particular Mortgage Loan), whether or
not interest is actually collected on each Mortgage Loan and REO Mortgage Loan.
With respect to each Mortgage Loan and REO Mortgage Loan, the Trustee Fee shall
accrue from time to time on the basis of a 360-day year consisting of twelve
30-day months. The Trustee's Fees (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) shall
constitute the Trustee's sole compensation for such services to be rendered by
it.
(b) The Trustee and any affiliate, director, officer, employee or
agent of the Trustee shall be entitled to be indemnified and held harmless out
of Trust Fund for and against any loss, liability, claim or expense (including
costs and expenses of litigation, and of investigation, counsel fees, damages,
judgments and amounts paid in settlement) arising out of, or incurred in
connection with, this Agreement, the Certificates, the Mortgage Loans (unless it
incurs any such expense or liability in the capacity of successor Servicer or
Special Servicer, in which case such expense or liability will be reimbursable
thereto in the same manner as it would be for any other Servicer or Special
Servicer, as the case may be) or any act or omission of the Trustee relating to
the exercise and performance of any of the powers and duties of the Trustee
hereunder, if (but only if) such loss, liability, claim or expense constitutes
an "unanticipated expense" within the meaning of Treasury regulation Section
1.860G-1(b)(3)(ii); provided, however, that neither the Trustee nor any of the
other above specified Persons shall be entitled to indemnification pursuant to
this Section 8.05(b) for (1) allocable overhead of the Trustee, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses and similar internal costs and expenses, (2) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof or (3) any loss, liability, claim or expense incurred by reason of
any breach on the part of the Trustee of any of its representations, warranties
or covenants contained herein or any willful misfeasance, bad faith or
negligence in the performance of, or reckless disregard of, the Trustee's
obligations and duties hereunder.
(c) Each of the Servicer and the Special Servicer shall indemnify
the Trustee, any Fiscal Agent and the REMIC Administrator for and hold each of
them harmless against any loss, liability, claim or expense that is a result of
the Servicer's or the Special Servicer's, as the case may be, negligent acts or
omissions in connection with this Agreement, including the negligent use by the
Servicer or the Special Servicer, as the case may be, of any powers of attorney
delivered to it by the Trustee pursuant to the provisions hereof and the
Mortgage Loans serviced by the Servicer or the Special Servicer, as the case may
be; provided, however, that, if the Trustee has been reimbursed for such loss,
liability, claim or expense pursuant to Section 8.05(b), any Fiscal Agent has
been reimbursed for such loss, liability, claim or expense pursuant to Section
8.13, or the REMIC Administrator has been reimbursed for such loss, liability,
claim or expense pursuant to Section 6.03, then the indemnity in favor of such
Person provided for in this Section 8.05(c) with respect to such loss,
liability, claim or expense shall be for the benefit of the Trust.
(d) Each of the Trustee, any Fiscal Agent and the REMIC
Administrator shall indemnify the Servicer and the Special Servicer for and hold
each of them harmless against any loss, liability, claim or expense that is a
result of the Trustee's, such Fiscal Agent's or the REMIC Administrator's, as
the case may be, negligent acts or omissions in connection with this Agreement;
provided, however, that if the Servicer or the Special Servicer has been
reimbursed for such loss, liability, claim or expense pursuant to Section 6.03,
then the indemnity in favor of such Person provided for in this Section 8.05(d)
with respect to such loss, liability, claim or expense shall be for the benefit
of the Trust.
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(e) This Section 8.05 shall survive the termination of this
Agreement or the resignation or removal of the Trustee, any Fiscal Agent, the
REMIC Administrator, the Servicer and the Special Servicer as regards rights and
obligations prior to such termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank,
trust company or association organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation, bank, trust company or
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation, bank, trust company or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The Trustee shall at all times meet the requirements of Section
26(a)(1) of the Investment Company Act. In addition, the Trustee shall at all
times maintain a long-term unsecured debt rating of no less than "AA" from each
of S&P and Fitch (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by such
Rating Agency)); provided that the Trustee shall not cease to be eligible to
serve as such based on a failure to satisfy such rating requirements so long as
either: (i) the Trustee maintains a long-term unsecured debt rating of no less
than "BBB" from each of S&P and Fitch (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates (as confirmed in writing to the Trustee and the
Depositor by such Rating Agency)) and a Fiscal Agent meeting the requirements of
Section 8.13 has been appointed by the Trustee and is then currently serving in
such capacity; or (ii) the Trustee maintains a long-term unsecured debt rating
of no less than "A+" from each of S&P and Fitch (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by such Rating Agency)) and an Advance Security
Arrangement meeting the requirements of Section 8.14 has been established by the
Trustee and is then currently being maintained. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07. The corporation, bank, trust company or association
serving as Trustee may have normal banking and trust relationships with the
Depositor, the Sellers, the Servicer, the Special Servicer, the REMIC
Administrator and their respective Affiliates; provided, however, that none of
(i) the Depositor, (ii) any Person involved in the organization or operation of
the Depositor, (iii) either Seller or (iv) any Affiliate of any of them, may be
the Trustee hereunder.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer, the REMIC Administrator and all the
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee meeting the eligibility requirements
of Section 8.06 by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within
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30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within 10 Business Days, the Servicer
shall) remove the Trustee and appoint a successor trustee by written instrument,
in duplicate, which instrument shall be delivered to the Trustee so removed and
to the successor trustee. A copy of such instrument shall be delivered to the
other parties hereto and to the Certificateholders by the Depositor (or the
Servicer, as the case may be).
(c) The Holders of Certificates entitled to at least a majority
of the Voting Rights (or, if such removal is in connection with the Trustee's
and any Fiscal Agent's failure to make any required Advance, 25% of the Voting
Rights) may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor so appointed. A copy of such instrument
shall be delivered to the other parties hereto and to the remaining
Certificateholders by the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the Trustee nor any
Fiscal Agent appointed by it has a long-term unsecured debt rating of at least
"AA" from each of S&P and Fitch, the Trustee and the Depositor have received
written confirmation from each Rating Agency that has not so assigned such a
rating, to the effect that the appointment of such successor Trustee shall not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates. Notwithstanding anything herein to the contrary, if any Person is
acting as both Trustee and REMIC Administrator, then any resignation or removal
of such Person as the Trustee shall be accompanied by the resignation or removal
of such Person as REMIC Administrator, and the successor trustee shall serve as
successor REMIC administrator as well.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Servicer, the
Special Servicer, the REMIC Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, the
Servicer, the Special Servicer, the REMIC Administrator and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such
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rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible under
the provisions of Section 8.06, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default in respect of the Servicer shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06, and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or when acting as Servicer, Special Servicer or REMIC Administrator
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every
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instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint at the
Trustee's own expense one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee; provided that if the Custodian is an
Affiliate of the Trustee such consent of the Servicer need not be obtained and
the Trustee shall inform the Servicer of such appointment. Each Custodian shall
be a depository institution supervised and regulated by a federal or state
banking authority, shall have combined capital and surplus of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File, shall not be the Depositor, either Seller or any
Affiliate of the Depositor or either Seller, and shall have in place a fidelity
bond and errors and omissions policy, each in such form and amount as is
customarily required of custodians acting on behalf of FHLMC or FNMA. Each
Custodian shall be subject to the same obligations, standard of care, protection
and indemnities as would be imposed on, or would protect, the Trustee hereunder
in connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, the Underwriter,
the Servicer, the Special Servicer, the Controlling Class Representative and
each Rating Agency and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
Certificate Owner, access to any documentation regarding the Mortgage Loans or
the other assets of the Trust Fund that are in its possession or within its
control. Such access shall be afforded without charge but only upon reasonable
prior written request and during normal business hours at the offices of the
Trustee designated by it.
(b) The Trustee shall maintain at its offices and, upon
reasonable prior written request and during normal business hours, shall make
available for review by the Depositor, the Rating Agencies, the Controlling
Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein,
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originals and/or copies of the following items (to the extent such items were
prepared by or delivered to the Trustee): (i) the Prospectus, the Memorandum and
any other disclosure document relating to the Certificates, in the form most
recently provided to the Trustee by the Depositor or by any Person designated by
the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to
the Trustee since the Closing Date and any amendments hereto or thereto; (iii)
all Certificateholder Reports delivered to Certificateholders pursuant to
Section 4.02(a) since the Closing Date; (iv) all Annual Performance
Certifications delivered by the Servicer and the Special Servicer, respectively,
to the Trustee since the Closing Date; (v) all Annual Accountants' Reports
caused to be delivered by the Servicer and the Special Servicer, respectively,
to the Trustee since the Closing Date; (vi) the most recent inspection report
prepared by the Servicer or the Special Servicer and delivered to the Trustee in
respect of each Mortgaged Property pursuant to Section 3.12(a); (vii) the most
recent quarterly and annual operating statement and rent roll of each related
Mortgaged Property and financial statements of the related Mortgagor collected
by the Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.12(b); (viii) any and all notices and reports delivered to the Trustee
with respect to any Mortgaged Property as to which the environmental testing
contemplated by Section 3.09(c) revealed that neither of the conditions set
forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (ix)
all Unrestricted Servicer Reports and Restricted Servicer Reports delivered to
the Trustee since the Closing Date pursuant to Sections 4.02(b); (x) each of the
Mortgage Files, including any and all modifications, waivers and amendments of
the terms of a Mortgage Loan entered into or consented to by the Servicer or the
Special Servicer and delivered to the Trustee pursuant to Section 3.20; (xi) the
most recent Appraisal for each Mortgage Loan and REO Property that has been
delivered to the Trustee (all Appraisals of Mortgaged Properties and/or REO
Properties to be delivered to the Trustee by the Servicer or Special Servicer,
as applicable, promptly following their having been obtained or formulated); and
(xii) any and all Officer's Certificates and other evidence delivered to or by
the Trustee to support its, the Servicer's, the Special Servicer's or any Fiscal
Agent's, as the case may be, determination that any Advance was (or, if made,
would be) a Nonrecoverable Advance. The Trustee shall provide copies of any and
all of the foregoing items upon request of any of the parties set forth in the
previous sentence; however, except in the case of the Rating Agencies, the
Trustee shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 8.12(b), the
Trustee shall require: (a) in the case of Certificate Owners, a confirmation
executed by the requesting Person substantially in the form of Exhibit L-1
hereto (or such other form as may be reasonably acceptable to the Trustee)
generally to the effect that such Person is a beneficial holder of Book-Entry
Certificates and, subject to the last sentence of this paragraph, will keep such
information confidential (except that such Certificate Owner may provide such
information to any other Person that holds or is contemplating the purchase of
any Certificate or interest therein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential); and (b) in the case of a prospective
purchaser of a Certificate or an interest therein, confirmation executed by the
requesting Person substantially in the form of Exhibit L-2 hereto (or such other
form as may be reasonably acceptable to the Trustee) generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and, subject to the last sentence of this paragraph,
will otherwise keep such information confidential. The Holders of the
Certificates, by their acceptance thereof, will be deemed to have agreed,
subject to the last sentence of this paragraph, to keep such information
confidential (except that any Holder may provide any such information obtained
by it to any other Person that holds or is contemplating the purchase of any
Certificate or interest therein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such
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information confidential). Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner need
keep confidential any information received from the Trustee pursuant to this
Section 8.12(b) that has previously been filed with the Commission, and the
Trustee shall not require either of the certifications contemplated by the
second preceding sentence in connection with providing any information pursuant
to this Section 8.12(b) that has previously been filed with the Commission.
(c) The Trustee shall not be liable for providing or
disseminating information in accordance with Section 8.12(a) or Section 8.12(b).
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "AA" from each
of S&P and Fitch (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by such
Rating Agency)). Any Person so appointed by the Trustee pursuant to this Section
8.13(a) shall become the Fiscal Agent on the date as of which the Trustee and
the Depositor have received: (i) if the long-term unsecured debt of the
designated Person is not rated as least "AA" by each of S&P and Fitch, written
confirmation from each Rating Agency that the appointment of such designated
Person will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates; (ii) a written agreement whereby the designated Person is
appointed as, and agrees to assume and perform the duties of, Fiscal Agent
hereunder, executed by such designated Person and the Trustee (such agreement,
the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which shall be
paid for by the designated Person or the Trustee) substantially to the effect
that (A) the appointment of the designated Person to serve as Fiscal Agent is in
compliance with this Section 8.13, (B) the designated Person is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (C) the related Fiscal Agent Agreement has been duly authorized,
executed and delivered by the designated Person and (D) upon execution and
delivery of the related Fiscal Agent Agreement, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any Person that acts as Fiscal
Agent shall, for so long as it so acts, be deemed a party to this Agreement for
all purposes hereof. Pursuant to the related Fiscal Agent Agreement, each Fiscal
Agent, if any, shall make representations and warranties with respect to itself
that are comparable to those made by the Trustee pursuant to Section 2.07.
Notwithstanding anything contained in this Agreement to the contrary, any Fiscal
Agent shall be entitled to all limitations on liability, rights of reimbursement
and indemnities to which the Trustee is entitled hereunder (including pursuant
to Sections 8.05(b) and 8.05(c)) as if it were the Trustee.
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor Servicer or
otherwise, and has failed to do so in accordance with the terms hereof, the
Fiscal Agent (if any) shall make such Advance when and as required by the terms
of this Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that the Fiscal Agent (if any) makes an Advance
pursuant to this Section 8.13 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
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(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the Trustee is entitled
hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the
Trustee, except that all fees and expenses of any Fiscal Agent (other than
interest owed to such Fiscal Agent in respect of unreimbursed Advances) incurred
by such Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor such Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section
8.13 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. Any Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that any Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent in accordance with this Section 8.13(a) shall belong to
the successor Trustee insofar as such appointment is necessary for such
successor Trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto
and the Certificateholders in writing of the appointment, resignation or removal
of any Fiscal Agent.
SECTION 8.14 Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement (any or all of the foregoing, individually and collectively, an
"Advance Security Arrangement") for purposes of supporting its back-up advancing
obligations hereunder; provided that any Advance Security Arrangement shall be
in such form and amount, and shall be maintained in such manner, as (i) would
permit the Trustee to act in such capacity without an Adverse Rating Event in
respect of any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by each Rating Agency) and (ii) would not result in an
Adverse REMIC Event (as evidenced by an Opinion of Counsel addressed and
delivered to the Trustee, the Depositor and the REMIC Administrator). The
Trustee may terminate any Advance Security Arrangement established by it only if
and when (i) the existence of such Advance Security Arrangement is no longer
necessary for the Trustee to satisfy the eligibility requirements of Section
8.06 or (ii) when such Trustee resigns or is removed as Trustee hereunder.
SECTION 8.15. Filings with the Securities and Exchange
Commission.
For so long as it is required under the Exchange Act, the Trustee
shall prepare for filing, execute and properly file with the Commission,
monthly, a Current Report on form 8-K with copies of the Trustee Reports and the
Unrestricted Servicer Reports attached as exhibits, and periodically upon
direction of the Depositor, any other reports, statements and information
respecting the Trust Fund and/or the Certificates that has been furnished to the
Trustee; provided that such items shall have been received by the Trustee (to
the extent not generated by the Trustee) in the format required for electronic
filing via the EDGAR system; and provided, further, that any such items that are
required to be delivered by the Servicer or the Special Servicer to the Trustee
shall be so delivered in the format required for electronic filing via the EDGAR
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system (in addition to any other required format); and provided further, that
the Depositor shall be responsible for preparing, executing and filing the
Current Report on Form 8-K whereby a form of this Agreement is to be filed with
the Commission within 15 days following the Closing Date. The Trustee shall have
no responsibility to file any such items that have not been received in such
EDGAR-compatible format nor shall it have any responsibility to convert any
items to such format. The Depositor shall promptly file, and exercise reasonable
efforts to obtain a favorable response to, no-action requests to, or requests
for other appropriate exemptive relief from, the Commission regarding the usual
and customary exemption from certain reporting requirements granted to issuers
of securities similar to the Certificates.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the parties hereto (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of (i) the purchase by the Servicer, the
Special Servicer or the Majority Controlling Class Certificateholder of all
Mortgage Loans and each REO Property remaining in the Trust Fund at a price (the
"Termination Price") equal to (A) the aggregate Purchase Price of all the
Mortgage Loans remaining in the Trust Fund (exclusive of any REO Mortgage
Loan(s)), plus (B) the appraised value of each REO Property, if any, included in
the Trust Fund, such appraisal to be conducted by a Qualified Appraiser selected
by the Servicer and approved by the Trustee, minus (C) if the purchaser is the
Servicer or the Special Servicer, the aggregate amount of unreimbursed Advances
made by such Person, together with any unpaid Advance Interest in respect of
such unreimbursed Advances and any unpaid servicing compensation payable to such
Person (which items shall be deemed to have been paid or reimbursed to the
Servicer or the Special Servicer, as the case may be, in connection with such
purchase) and (ii) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the Court of St. James, living on the date hereof.
The Servicer, the Special Servicer or the Majority Controlling
Class Certificateholder, in that order of preference, may at its option elect to
purchase all the Mortgage Loans and each REO Property remaining in the Trust
Fund as contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto (and, in the case of an election by the
Servicer or Special Servicer, to the Majority Controlling Class
Certificateholder, if any) no later than 60 days prior to the anticipated date
of purchase; provided, however, that the aggregate Stated Principal Balance of
the Mortgage Pool at the time of such election is less than 1.0% of the Initial
Pool Balance; and provided, further, that within 30 days after written notice of
such election is so given, no Person with a higher right of priority to make
such an election does so. No Prepayment Premiums or Yield Maintenance Premiums
will be payable in connection with such a purchase. If the Trust is to be
terminated in connection with the purchase of all the Mortgage Loans and each
REO Property remaining in the Trust Fund by the Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder, such Person shall deliver
to the Servicer for deposit (or, if the Servicer is the purchaser, it shall
deposit) in the Collection Account (after the Determination Date, and prior to
the Servicer Remittance Date, relating to the anticipated Final Distribution
Date) an amount in immediately available funds equal to the Termination Price.
On the Servicer Remittance Date for the Final Distribution Date, the Servicer
shall transfer to the Distribution Account all amounts required to be
transferred thereto on such Servicer Remittance Date from the Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Collection Account that would otherwise be held for
future distribution. Upon confirmation that the deposit of the Termination Price
has been made to the Collection Account, the Trustee shall release or cause to
be released to the purchasing party (or its designee) the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other
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instruments furnished to it by the purchasing party as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties to the purchasing
party (or its designee).
Notice of any termination shall be given promptly by the Trustee
by letter to Certificateholders mailed (x) if such notice is given in connection
with the purchase of all the Mortgage Loans and each REO Property remaining in
the Trust Fund by the Servicer, the Special Servicer or the Majority Controlling
Class Certificateholder, not earlier than the 15th day and not later than the
25th day of the month next preceding the month of the final distribution on the
Certificates and (y) otherwise during the month of such final distribution on or
before the Servicer Remittance Date in such month, in any event specifying (i)
the Distribution Date upon which the Trust Fund will terminate and final payment
on the Certificates will be made, (ii) the amount of any such final payment in
respect of each Class of Certificates and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office or agency of
the Trustee therein designated. The Trustee shall give such notice to the other
parties hereto at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount that is allocable to payments on the relevant Class in
accordance with Sections 4.01(a) and 4.01(b).
Any funds not distributed to any Holder or Holders of
Certificates of any Class on the Final Distribution Date because of the failure
of such Holder or Holders to tender their Certificates shall, on such date, be
set aside and held uninvested in trust and credited to the account or accounts
of the appropriate non- tendering Holder or Holders. If any Certificates as to
which notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable escheat laws, the Trustee shall
distribute to the Class R-III Certificateholders all unclaimed funds and other
assets which remain subject hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If the Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder purchases all the Mortgage Loans and each
REO Property remaining in the Trust Fund as provided in Section 9.01, the Trust
and each REMIC created hereunder shall be terminated in accordance with the
following additional requirements, unless the purchasing party obtains at its
own expense and delivers to the Trustee and the REMIC Administrator an Opinion
of Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the failure of the Trust to comply with the requirements of this Section
9.02 will not result in an Adverse REMIC Event with respect to any REMIC Pool:
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(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final
Tax Return for each REMIC Pool, pursuant to Treasury regulation
Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any
regulations thereunder (as evidenced by an Opinion of Counsel to
such effect delivered on behalf and at the expense of the
purchasing party);
(ii) during such 90-day liquidation period and at or prior to
the time of making the final payment on the Certificates, the
Trustee shall sell all the Mortgage Loans and each REO Property
to the Servicer, the Special Servicer or the Majority Controlling
Class Certificateholder for cash in accordance with Section 9.01;
and
(iii) immediately following the making of the final payment on
the Certificates, the Trustee shall distribute or credit, or
cause to be distributed or credited, to the Holders of the
applicable Class of Residual Interest Certificates all remaining
cash on hand (other than cash retained to meet claims), and each
REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders hereby
authorize the REMIC Administrator to prepare and adopt, on behalf of the Trust,
a plan of complete liquidation of each REMIC Pool in accordance with the terms
and conditions of this Agreement, which authorization shall be binding upon all
successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The REMIC Administrator shall elect to treat each REMIC Pool
as a REMIC under the Code and, if necessary, under applicable state law. Each
such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state Tax Returns for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued.
(b) The applicable Plurality Residual Interest Certificateholder
is hereby designated as the Tax Matters Person of each REMIC Pool and, in such
capacity, shall be responsible to act on behalf of such REMIC Pool in relation
to any tax matter or controversy, to represent such REMIC Pool in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority, to request an administrative adjustment as to any
taxable year of such REMIC Pool, to enter into settlement agreements with any
governmental taxing agency with respect to such REMIC Pool, to extend any
statute of limitations relating to any tax item of such REMIC Pool and otherwise
to act on behalf of such REMIC Pool in relation to any tax matter or controversy
involving such REMIC Pool; provided that the REMIC Administrator is hereby
irrevocably appointed and agrees to act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such. The legal
expenses and costs of any action described in this Section 10.01(b) and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust payable out of amounts on deposit in the Distribution Account as provided
by Section 3.05(b) unless such legal expenses and costs are incurred by reason
of a Tax Matters Person's or the REMIC Administrator's misfeasance, bad faith or
negligence in the performance of, or such Person's reckless disregard of, its
obligations or are expressly provided by this Agreement to be borne by any party
hereto.
(c) The REMIC Administrator shall prepare or cause to be prepared
and file, and the Trustee shall sign, all of the Tax Returns in respect of each
REMIC Pool (other than Tax Returns required to be filed by the Servicer pursuant
to Section 3.09(g) and all of the applicable income tax and other information
returns for each of Grantor Trust D-1 and Grantor Trust D-2). The expenses of
preparing and filing such returns shall be borne by the REMIC Administrator
without any right of reimbursement therefor.
(d) The REMIC Administrator shall perform on behalf of each REMIC
Pool all reporting and other tax compliance duties that are the responsibility
of such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the REMIC Administrator shall provide: (i) to any Transferor
of a Residual Interest Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required); and (iii) to the IRS, the name, title, address and telephone number
of the Person who will serve as the representative of each REMIC Pool. The REMIC
Administrator shall also perform on behalf of each of Grantor Trust D-1 and
Grantor Trust D-2 all reporting and other tax compliance duties that are the
responsibility of such Grantor Trust under the Code or any compliance guidance
issued by the IRS or any state or local taxing authorities.
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(e) The REMIC Administrator shall take such action and shall
cause each REMIC Pool to take such action as shall be necessary to create or
maintain the status thereof as a REMIC under the REMIC Provisions (and the other
parties hereto shall assist it, to the extent reasonably requested by the REMIC
Administrator) to the extent that the REMIC Administrator has actual knowledge
that any particular action is required; provided that the REMIC Administrator
shall be deemed to have knowledge of relevant tax laws. The REMIC Administrator
shall not knowingly take or fail to take any action, or cause any REMIC Pool to
take or fail to take any action, that under the REMIC Provisions, if taken or
not taken, as the case may be, could result in an Adverse REMIC Event in respect
of any REMIC Pool, unless the REMIC Administrator has received an Opinion of
Counsel to the effect that the contemplated action or non-action, as the case
may be, will not result in an Adverse REMIC Event. None of the other parties
hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the REMIC Administrator has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any action
with respect to any REMIC Pool or the assets thereof, or causing any REMIC Pool
to take any action, which is not contemplated by the terms of this Agreement,
each of the other parties hereto will consult with the REMIC Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur, and no such other party shall take any such action or cause any REMIC
Pool to take any such action as to which the REMIC Administrator has advised it
in writing that an Adverse REMIC Event could occur. The REMIC Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the Code,
any tax on "net income from foreclosure property" as defined in Section 860G(c)
of the Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)), such tax, together with all incidental costs and expenses
(including penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the REMIC Administrator, if such tax arises out of or results from
a breach of any of its obligations under this Article X; (ii) the Trustee, if
such tax arises out of or results from a breach of any of its obligations under
Article IV, Article VIII or this Article X; (iii) any Fiscal Agent, if such tax
arises out of or results from a breach of any of its obligations under Article
IV or this Article X; (iv) the Servicer, if such tax arises out of or results
from a breach by the Servicer of any of its obligations under Article III or
this Article X; (v) the Special Servicer, if such tax arises out of or results
from a breach by the Special Servicer of any of its obligations under Article
III or this Article X; or (vi) the Trust, out of the Trust Fund (exclusive of
Grantor Trust D-1 and Grantor Trust D-2), in all other instances. If any tax is
imposed on Grantor Trust D-1 or Grantor Trust D-2, such tax, together with all
incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Article X; (ii) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under Article III or this Article X; (iii)
the Servicer, if such tax arises out of or results from a breach by the Servicer
of any of its obligations under Article III or this Article X; (iv) the Trustee,
if such tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Article X; or (v) the Trust,
out of the portion of the Trust Fund constituting such Grantor Trust, in all
other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a) shall be charged to and paid by the Trust. Any such
amounts payable by the Trust in respect of taxes shall be paid
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by the Trustee at the direction of the REMIC Administrator out of amounts on
deposit in the Distribution Account.
(g) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each REMIC Pool and each of Grantor Trust D-1 and
Grantor Trust D-2 on a calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee
shall not (except as contemplated by Section 2.03) accept any contributions of
assets to any REMIC Pool unless it shall have received an Opinion of Counsel (at
the expense of the party seeking to cause such contribution) to the effect that
the inclusion of such assets in such REMIC Pool will not result in an Adverse
REMIC Event in respect of such REMIC Pool.
(i) None of the REMIC Administrator, the Servicer, the Special
Servicer, the Trustee or any Fiscal Agent shall consent to or, to the extent it
is within the control of such Person, permit: (i) the sale or disposition of any
Mortgage Loan (except in connection with (A) a breach of any representation or
warranty regarding any Mortgage Loan set forth in or made pursuant to the
Mortgage Loan Purchase and Sale Agreement or, in the case of a Column Third
Party Mortgage Loan, the related Column Third Party Originator Agreement or as
otherwise contemplated by Section 2.02(e), (B) the foreclosure, default or
reasonably foreseeable material default of a Mortgage Loan, including the sale
or other disposition of a Mortgaged Property acquired by foreclosure, deed in
lieu of foreclosure or otherwise, (C) the bankruptcy of any REMIC Pool, or (D)
the termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Collection Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust (other
than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan, other than a
Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Collection Account or the REO Account); in any event unless it has received an
Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not result in an Adverse REMIC Event in respect of any REMIC
Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Servicer, the Special Servicer or the Trustee shall
enter into any arrangement by which any REMIC Pool will receive a fee or other
compensation for services or, to the extent it is within the control of such
Person, permit any REMIC Pool to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code. At all times as may
be required by the Code, each of the respective parties hereto (to the extent it
is within its control) shall ensure that substantially all of the assets of each
REMIC Pool will consist of "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the REMIC
Administrator shall prepare and file with the IRS, with respect to each REMIC
Pool, Form 8811 "Information Return for Real Estate Mortgage Investment Conduits
(REMICs) and Issuers of Collateralized Debt Obligations".
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(l) On or before April 15 of each calendar year, commencing April
15, 1999, unless the REMIC Administrator and the Trustee are the same Person,
the REMIC Administrator shall deliver to the Trustee an Officer's Certificate
from a Responsible Officer of the REMIC Administrator confirming the REMIC
Administrator's compliance with its obligations under this Agreement.
SECTION 10.02. Depositor, Servicer, Special Servicer, Trustee and
Fiscal Agent to Cooperate with REMIC
Administrator.
(a) The Depositor shall provide or cause to be provided to the
REMIC Administrator, within ten days after the Closing Date, all information or
data that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including
the price, yield, prepayment assumption and projected cash flow of the
Certificates.
(b) Each of the Servicer, the Special Servicer, the Trustee and
any Fiscal Agent shall furnish such reports, certifications and information in
its possession, and access to such books and records maintained thereby, as may
relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the REMIC Administrator in order to enable it to perform its duties
hereunder.
SECTION 10.03. Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the
same Person, the Trustee covenants and agrees to pay to the REMIC Administrator
from time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by the REMIC Administrator in the
exercise and performance of any of its obligations and duties hereunder.
SECTION 10.04. Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
approved by the Trustee (which approval shall not be unreasonably withheld);
provided that the REMIC Administrator will not be relieved of its obligations
hereunder by reason of the use of such agents or attorneys-in-fact.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the provisions
hereof, (iv) to relax or eliminate any requirement hereunder imposed by (A) the
REMIC Provisions (if the REMIC Provisions are amended or clarified such that any
such requirement may be relaxed or eliminated) or (B) the Securities Act or the
rules thereunder (if the Securities Act or such rules are amended or clarified
such that any such requirement may be relaxed or eliminated), (v) as evidenced
by an Opinion of Counsel delivered to the Trustee and the REMIC Administrator,
either (X) to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to any REMIC Pool or either of Grantor
Trust D-1 or Grantor Trust D-2 at least from the effective date of such
amendment, or (Y) to avoid the occurrence of a prohibited transaction or to
reduce the incidence of any tax that would arise from any actions taken with
respect to the operation of any REMIC Pool or either of Grantor Trust D-1 or
Grantor Trust D-2, (vi) as provided in Section 5.02(d)(iv), to modify, add to or
eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii); or (vii)
for any other purpose; provided that such amendment (other than any amendment
for any of the specific purposes described in clauses (v) and (vi) above) shall
not adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an Opinion of Counsel obtained by or
delivered to the Trustee to such effect; and provided, further, that any such
amendment covered solely by clause (vii) above shall not (as confirmed in
writing to the Trustee by each Rating Agency) result in an Adverse Rating Event
with respect to any Class of Rated Certificates.
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to not less than 662/3% of the Voting Rights allocated to
all of the affected Classes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received or advanced on Mortgage Loans and/or REO
Properties which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (i) above without the consent of the Holders
of all Certificates of such Class or (iii) modify the provisions of this Section
11.01 without the consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor shall
be entitled to the same Voting Rights with respect to the matters described
above as they would if registered in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of
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any power granted to any party hereto in accordance with such amendment will not
result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either of Grantor Trust D-1 or Grantor Trust
D-2.
(d) Promptly after the execution and delivery of any amendment by
all parties thereto, the Trustee shall send a copy thereof to each
Certificateholder and to each Rating Agency.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 11.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant
to Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes protects or is in furtherance of the rights and
interests of Certificateholders, the cost of any Opinion of Counsel required in
connection therewith pursuant to Section 11.01(a) or (c) shall be payable out of
the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Trust (payable out of the
Collection Account), but only upon written direction of the Depositor
accompanied by an Opinion of Counsel (the cost of which may be paid out of the
Collection Account) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
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Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of any other Holders of Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder (which priority
or preference is not otherwise provided for herein), or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the substantive laws of the State of New York applicable to
agreements made and to be performed entirely in said State, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws. The parties hereto intend that the provisions of Section 5-1401
of the New York General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be
in writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given when delivered to: (i) in the case of the Depositor, DLJ
Commercial Mortgage Corp., 277 Park Avenue, 9th Floor, New York, New York 10172,
attention: N. Dante LaRocca, telecopy number: (212) 892-2003; (ii) in the case
of the Servicer, GE Capital Loan Services, Inc., 363 North Sam Houston Parkway
East, Suite 1200, Houston, Texas 77060, telecopy number: (281) 405-7145,
Attention: Legal Department; (iii) in the case of the Special Servicer, Midland
Loan Services, Inc., 210 West 10th Street, 6th Floor, Kansas City, Missouri,
64105, Attention: President, telecopy number: (816) 435-2326, with a copy to
Morrison & Hecker L.L.P., 2600 Grand Avenue, Kansas City, Missouri 64108,
Attention: William A. Hirsch, telecopy number: (816) 474-4208; (iv) in the case
of the Trustee and the REMIC Administrator, Norwest Bank Minnesota, National
Association, 11000 Broken Land Parkway, Columbia, Maryland 21044-3562,
attention: Corporate Trust Services (CMBS)-DLJ Commercial Mortgage Corp., Series
1998-CG1, telecopy number: (410) 884-2372; (v) in the case of the Rating
Agencies, (A) Standard & Poor's Ratings Services, a Division of the McGraw-
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Hill Companies, Inc., 26 Broadway, New York, New York 10004, attention:
Commercial Mortgage Surveillance Group, telecopy number: (212) 412-0539, and (B)
in the case of Fitch IBCA, Inc., One State Street Plaza, New York, New York
10004, attention: Commercial Mortgage Surveillance Department, telecopy number:
(212) 635-0295; (vi) in the case of GECA, GE Capital Access, Inc., 125 Park
Avenue, New York, New York, Attention: Director - Securitization, telecopy
number (212) 716-8911; and (vii) in the case of Column, Column Financial Inc.,
3414 Peachtree Road, N.E., Suite 1140, Atlanta, Georgia 30326-1113, Attention:
President, telecopy number (404) 239-0419; or as to each such Person such other
address and/or telecopy number as may hereafter be furnished by such Person to
the parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenant(s), agreement(s), provision(s) or term(s) shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto, their respective successors and assigns
and, as third party beneficiaries, the Underwriter and the non- parties referred
to in Sections 6.03 and 8.05, and all such provisions shall inure to the benefit
of the Certificateholders. No other person, including any Mortgagor, shall be
entitled to any benefit or equitable right, remedy or claim under this
Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies.
(a) The Trustee shall promptly provide notice to 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 resignation or termination of the Servicer, the
Special Servicer or the REMIC Administrator and the appointment
of a successor;
(iv) the appointment, resignation or removal of a Fiscal
Agent;
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(v) any change in the location of the Distribution Account;
(vi) any repurchase or substitution of a Mortgage Loan by
either Seller or any Column Third Party Originator as
contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) The Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the
appointment of a successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Servicer and the Special Servicer, as the case
may be, shall furnish each Rating Agency such information with respect to the
Mortgage Loans as such Rating Agency shall reasonably request and which the
Servicer or the Special Servicer, as the case may be, can reasonably provide to
the extent consistent with applicable law and the related Mortgage Loan
documents. In any event, the Servicer and the Special Servicer shall notify each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) any change in the lien priority of the Mortgage securing
any Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a
tenant representing more than 20% of the total net rentable
square feet of space) at any Mortgaged Property used for retail
purposes or any change in the term of the lease for an anchor
tenant at any such Mortgaged Property; and
(iii) any assumption of, or release or substitution of
collateral for, a Mortgage Loan that represents greater than 2%
of the then Stated Principal Balance of the Mortgage Pool;
(iv) any notice of exercise by a Mortgagor of its right (if
any) to transfer the related Mortgaged Property (without
acceleration of such Mortgage Loan), if such Mortgage Loan,
together with all other Mortgage Loans, if any, that are in the
same Cross-Collateralized Group as such Mortgage Loan or have the
same Mortgagor as such Mortgage Loan or have Mortgagors that are
known to be affiliated with the Mortgagor under such Mortgage
Loan, represents 2% or more of the Initial Pool Balance.
(d) Each of the Servicer and the Special Servicer, as the case
may be, shall promptly furnish each Rating Agency copies of the following items
(in each case, at or about the same time that it delivers or causes the delivery
of such item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e) and
Section 3.12.
-175-
<PAGE>
(e) The Trustee shall promptly deliver to each Rating Agency
(either in hard copy format or, except in the case of Fitch, through use of the
Trustee's Internet Website) a copy of each Trustee Report, Unrestricted Servicer
Report and Restricted Servicer Report forwarded to the Holders of the
Certificates (in each case, at or about the same time that it delivers such
Certificateholder Report to such Holders). Any Restricted Servicer Reports
delivered electronically as aforesaid shall be accessible on the Trustee's
Internet Website only with the use of a password, which shall be provided by the
Trustee to each Rating Agency.
(f) The parties intend that each Rating Agency provide to the
Trustee, upon request, a listing of the then-current rating (if any) assigned by
such Rating Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Servicer or the Special Servicer, as the case
may be, shall deliver to the Controlling Class Representative a copy of each
notice or other item of information such Person is required to deliver to the
Rating Agencies pursuant to Section 11.09, in each case simultaneously with the
delivery thereof to the Rating Agencies.
SECTION 11.11. Information Requested by GECA.
The Trustee shall provide to GECA promptly following any written
request therefor submitted by GECA any Certificateholder Reports theretofore or
simultaneously delivered or made available by the Trustee to Certificateholders.
Such reports shall be provided or made available in electronic format or, if
requested by GECA, by first class mail.
SECTION 11.12. Complete Agreement.
This Agreement embodies the complete agreement among the parties
and may not be varied or terminated except by a written agreement conforming to
the provisions of Section 11.01. All prior negotiations or representations of
the parties are merged into this Agreement and shall have no force or effect
unless expressly stated herein.
-176-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
DLJ COMMERCIAL MORTGAGE CORP.
Depositor
By: /s/
--------------------------------
Name:
Title:
GE CAPITAL LOAN SERVICES, INC.
Servicer
By: /s/
--------------------------------
Name:
Title:
MIDLAND LOAN SERVICES, INC.
Special Servicer
By: /s/
--------------------------------
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
solely in its capacity as
Trustee and REMIC Administrator
By: /s/
--------------------------------
Name:
Title:
<PAGE>
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the ______ day of June 1998, before me, a notary public in and
for said State, personally appeared ____________________, personally known to me
to be a ____________________ of DLJ COMMERCIAL MORTGAGE CORP., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
<PAGE>
STATE OF _____________ )
) ss.:
COUNTY OF ___________ )
On this _____ day of June 1998, before me, a notary public in and
for said State, personally appeared Edgar L. Smith II, personally known to me to
be the _____________________ of GE CAPITAL LOAN SERVICES, INC., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF _____________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of June 1998, before me, a notary public in and
for said State, personally appeared ____________________, personally known to me
to be a ____________________ of MIDLAND LOAN SERVICES, INC, one of the entities
that executed the within instrument and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF _____________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of June 1998, before me, a notary public in and
for said State, personally appeared ____________________, personally known to me
to be a ____________________ of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS S CERTIFICATES
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Notional Amount of the Class S
Variable Certificates as of the Closing Date:
$1,564,253,433
Cut-off Date: June 1, 1998 Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
Closing Date: June 24, 1998 $_________________
First Distribution Date: Aggregate Stated Principal Balance of the
July 10, 1998 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,564,253,433
Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Midland Loan Services, Inc.
Certificate No. S-_ CUSIP No.: ____________
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., MIDLAND LOAN
SERVICES, INC., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS JUNE 24, 1998. ASSUMING THAT
THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY PREPAYMENT OF
PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $______ OF OID PER $100,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $100,000 OF INITIAL
CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION
IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY
WILL PREPAY AT ANY PARTICULAR RATE.
A-1-2
<PAGE>
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional amount
of this Certificate (its "Certificate Notional Amount") as of the Closing Date
by the aggregate notional amount of all the Class S Certificates (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the Class S Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among DLJ Commercial Mortgage Corp. (the "Depositor", which term
includes any successor entity under the Agreement), GE Capital Loan Services,
Inc. (the "Servicer", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc. (the "Special Servicer", which term
includes any successor entity under the Agreement) and Norwest Bank Minnesota,
National Association (the "Trustee" and "REMIC Administrator", depending upon
the capacity in which it is acting, each of which terms includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the 10th day of such month (or, if
such 10th day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class S Certificates on the
applicable Distribution Date pursuant to the Agreement. The "Determination Date"
in each month, commencing in July 1998, will be the 5th day of such month or, if
such 5th day is not a Business Day, then the immediately preceding Business Day.
All distributions made under the Agreement on this Certificate will be made by
the Trustee by wire transfer of immediately available funds to the account of
the Person entitled thereto at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like
A-1-3
<PAGE>
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
A-1-4
<PAGE>
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right may effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Special Servicer, the REMIC Administrator, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent with the consent of the
Holders of Certificates entitled to not less than 66 2/3% of the Voting Rights
allocated to all of the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the within-mentioned
Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________
Authorized Officer
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
------------------------------------
Signature by or on behalf of Assignor
------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by _____________________________, the Assignee
named above, or ____________________, as its agent.
A-1-7
<PAGE>
A-1-8
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1A AND CLASS A-1B CERTIFICATES
CLASS [A-1A] [A-1B] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1998-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class
____% [A-1A][A-1B] Certificates as of the Closing
Date: $_____________________
Cut-off Date: June 1, 1998 Initial Certificate Principal Balance of
Closing Date: June 24, 1998 this Certificate as of the Closing Date:
$__________________
First Distribution Date: Aggregate Stated Principal Balance of the
July 10, 1998 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,564,253,433
Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Midland Loan Services, Inc.
Certificate No. [A-1A][A-1B]-___ CUSIP No.: ________________
A-2-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., MIDLAND LOAN
SERVICES, INC., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 2, 1998. ASSUMING THAT
THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY PREPAYMENT OF
PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $______ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO
PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
A-2-2
<PAGE>
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
A-2-3
<PAGE>
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal amount of all the Class [A-1A] [A-1B]
Certificates (their "Class Principal Balance") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class [A-1A] [A-1B]Certificates. The Trust Fund was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as of the
Cutoff Date specified above (the "Agreement"), among DLJ Commercial Mortgage
Corp. (the "Depositor", which term includes any successor entity under the
Agreement), GE Capital Loan Services, Inc. (the "Servicer", which term includes
any successor entity under the Agreement), Midland Loan Services, Inc. (the
"Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association (the "Trustee" and
"REMIC Administrator", depending upon the capacity in which it is acting, each
of which terms includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the 10th day of such month (or, if
such 10th day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [A-1A] [A-1B]
Certificates on the applicable Distribution Date pursuant to the Agreement. The
"Determination Date" in each month, commencing in July 1998, will be the 5th day
of such month or, if such 5th day is not a Business Day, then the immediately
preceding Business Day. All distributions made under the Agreement on this
Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
A-2-4
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
A-2-5
<PAGE>
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right may effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Special Servicer, the REMIC Administrator, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent with the consent of the
Holders of Certificates entitled to not less than 662/3% of the Voting Rights
allocated to all of the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-2-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By: _______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1A] [A-1B] Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________
Authorized Officer
A-2-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
------------------------------------
Signature by or on behalf of Assignor
------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by _____________________________, the Assignee
named above, or ____________________, as its agent.
A-2-8
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-1C, CLASS A-2, CLASS A-3, CLASS A-4, CLASS B-1,
CLASS B-2 AND CLASS B-3 CERTIFICATES
CLASS [A-1C] [A-2] [A-3] [A-4] [B-1] [B-2] [B-3]
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1998-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class [A-1C]
[___% per annum [FOR CLASS A-1C, [A-2] [A-3] [A-4] [B-1] [B-2] [B-3]
CLASS A-2, CLASS A-3 and CLASS A-4 Certificates as of the Closing Date:
CERTIFICATES]] $_________________
[Variable [FOR CLASS B-1, CLASS B-2
and CLASS B-3 CERTIFICATES]]
Cut-off Date: June 1, 1998 Initial Certificate Principal Balance of
Closing Date: June 24, 1998 this Certificate as of the Closing Date:
$_________________
First Distribution Date: Aggregate Stated Principal Balance of the
July 10, 1998 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,564,253,433
Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Midland Loan Services, Inc.
Certificate No. [A-1C] [A-2] [A-3] CUSIP No.: ________________
[A-$] [B-1] [B-2] [B-3]-__
A-3-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., MIDLAND LOAN
SERVICES, INC., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES
OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT
A-3-2
<PAGE>
("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS MARCH
2, 1998. ASSUMING THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT OF PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE
PAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE
HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF
THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal amount of all the Class [A-1C] [A-2]
[A-3] [A-4] [B-1] [B-2] [B-3] Certificates (their "Class Principal Balance") as
of the Closing Date) in that certain beneficial ownership interest in the Trust
Fund evidenced by all the Class [A-1C] [A-2] [A-3] [A-4] [B-1] [B-2] [B-3]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date
specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. (the
"Depositor", which term includes any successor entity under the Agreement), GE
Capital Loan Services, Inc. (the "Servicer", which term includes any successor
entity under the Agreement), Midland Loan Services, Inc. (the "Special
Servicer", which term includes any successor entity under the Agreement) and
Norwest Bank Minnesota, National Association (the "Trustee" and "REMIC
Administrator", depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the 10th day of such month (or, if
such 10th day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month
A-3-3
<PAGE>
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-1C] [A-2] [A-3] [A-4] [B-1] [B-2] [B-3] Certificates on the applicable
Distribution Date pursuant to the Agreement. The "Determination Date" in each
month, commencing in July 1998, will be the 5th day of such month or, if such
5th day is not a Business Day, then the immediately preceding Business Day. All
distributions made under the Agreement on this Certificate will be made by the
Trustee by wire transfer of immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest therein shall be made (A)
to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing this Certificate or any interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this
A-3-4
<PAGE>
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 of ERISA or Section 4975 of the Code or would
result in the imposition of an excise tax under Section 4975 of the Code. Except
in connection with the initial issuance of the Certificates or any transfer of
this Certificate or any interest herein by the Depositor, Donaldson, Lufkin &
Jenrette Securities Corporation (the "Underwriter") or any of their respective
Affiliates or any transfer of this Certificate to a successor Depository or to
the applicable Certificate Owner in accordance with Section 5.03 of the
Agreement, the Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee either
(i) a certification to the effect that such prospective Transferee is not a Plan
and is not directly or indirectly purchasing this Certificate on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transactions Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the preceding
paragraph.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
A-3-5
<PAGE>
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right may effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Special Servicer, the REMIC Administrator, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent with the consent of the
Holders of Certificates entitled to not less than 662/3% of the Voting Rights
allocated to all of the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including
A-3-6
<PAGE>
any amendment necessary to maintain the status of any REMIC Pool as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-3-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1C] [A-2] [A-3] [A-4] [B-1] [B-2] [B-3]
Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________________
Authorized Officer
A-3-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
------------------------------------
Signature by or on behalf of Assignor
------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by _____________________________, the Assignee
named above, or ____________________, as its agent.
A-3-9
<PAGE>
EXHIBIT A-4
FORM OF CLASS B-4, CLASS B-5,
CLASS B-6, CLASS B-7 AND CLASS C CERTIFICATES
CLASS [B-4] [B-5] [B-6] [B-7] [C] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1998-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class
[Variable [FOR CLASS B-4 [B-4] [B-5] [B-6] [B-7] [C] Certificates as
CERTIFICATES] of the Closing Date:
[_______% per annum [FOR CLASS B-5, $_____________________
B-6, CLASS B-7 AND CLASS C
CERTIFICATES]
Cut-off Date: June 1, 1998 Initial Certificate Principal Balance of
Closing Date: June 24, 1998 this Certificate as of the Closing Date:
$_____________________
First Distribution Date: Aggregate Stated Principal Balance of the
July 10, 1998 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,564,253,433
Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Midland Loan Services, Inc.
Certificate No. [B-4] [B-5] [B-6] CUSIP No.: ___________
[B-7] [C]----
A-4-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., MIDLAND LOAN
SERVICES, INC., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
A-4-2
<PAGE>
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 2, 1998. ASSUMING THAT
THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY PREPAYMENT OF
PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $______ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO
PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [B-4] [B-5]
[B-6] [B-7] [C] Certificates (their "Class Principal Balance") as of the Closing
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Class [B-4] [B-5] [B-6] [B-7] [C] Certificates. The Trust Fund was
created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), GE Capital Loan Services, Inc. (the
"Servicer", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc. (the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (the "Trustee" and "REMIC Administrator", depending upon the
capacity in which it is acting, each of which terms includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the
A-4-3
<PAGE>
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the 10th day of such month (or, if
such 10th day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [B-4] [B-5] [B-6]
[B-7] [C] Certificates on the applicable Distribution Date pursuant to the
Agreement. The "Determination Date" in each month, commencing in July 1998, will
be the 5th day of such month or, if such 5th day is not a Business Day, then the
immediately preceding Business Day. All distributions made under the Agreement
on this Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is
A-4-4
<PAGE>
exchangeable for new Certificates of the same Class in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Donaldson,
Lufkin & Jenrette Securities Corporation (the "Underwriter") or any of their
respective Affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (ii) of the preceding sentence or the Opinion of Counsel
described in clause (iii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. Any Certificateholder
desiring to effect a transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Underwriter, the Trustee, any Fiscal Agent, the Servicer, the
Special Servicer, the REMIC Administrator and the Certificate Registrar against
any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer or an Instituional Accredited Investor. The
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee a certification,
substantially in the form attached as Annex 1 or Annex 2 to Exhibit F-2A to the
Agreement,. to the effect that such prospective Transferee is a Qualified
Institutional Buyer or a certification from the prospective Transferee to the
effect that such prospective Transferee is an Institutional Accredited Investor.
A-4-5
<PAGE>
No transfer of this Certificate or any interest herein shall be made (A) to
any employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, Keogh plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, the Underwriter or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transactions Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the two preceding
paragraphs.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the
A-4-6
<PAGE>
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right may effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Special Servicer, the REMIC Administrator, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent with the consent of the
Holders of Certificates entitled to not less than 662/3% of the Voting Rights
allocated to all of the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including
A-4-7
<PAGE>
any amendment necessary to maintain the status of any REMIC Pool as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-4-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B-4] [B-5] [B-6] [B-7] [C] Certificates referred
to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________________
Authorized Officer
A-4-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
------------------------------------
Signature by or on behalf of Assignor
------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by _____________________________, the Assignee
named above, or ____________________, as its agent.
A-4-10
<PAGE>
EXHIBIT A-5
FORM OF CLASS D-1 AND CLASS D-2 CERTIFICATES
CLASS [D-1] [D-2] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1998-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: June 1, 1998 Percentage Interest evidenced by this Class
[D-1] [D-2] Certificate: ______%
Closing Date: June 24, 1998
First Distribution Date: Aggregate Stated Principal Balance of the
July 10, 1998 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,564,253,433
Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Midland Loan Services, Inc.
Certificate No. [D-1] [D-2]-___
A-5-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., MIDLAND LOAN
SERVICES, INC., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-5-2
<PAGE>
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by evidenced
by all the Class [D-1] [D-2] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. (the "Depositor", which term includes any successor entity under
the Agreement), GE Capital Loan Services, Inc. (the "Servicer", which term
includes any successor entity under the Agreement), Midland Loan Services, Inc.
(the "Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association (the "Trustee" and
"REMIC Administrator", depending upon the capacity in which it is acting, each
of which terms includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the 10th day of such month (or, if
such 10th day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [D-1] [D-2]
Certificates on the applicable Distribution Date pursuant to the Agreement. The
"Determination Date" in each month, commencing in July 1998, will be the 5th day
of such month or, if such 5th day is not a Business Day, then the immediately
preceding Business Day. All distributions made under the Agreement on this
Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
A-5-3
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Donaldson,
Lufkin & Jenrette Securities Corporation (the "Underwriter") or any of their
respective Affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (ii) of the preceding sentence or the Opinion of Counsel
described in clause (iii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the
A-5-4
<PAGE>
subject transfer, true and correct. Any Certificateholder desiring to effect a
transfer, sale, pledge or other disposition of this Certificate or any interest
herein shall, and does hereby agree to, indemnify the Depositor, the
Underwriter, the Trustee, any Fiscal Agent, the Servicer, the Special Servicer,
the REMIC Administrator and the Certificate Registrar against any liability that
may result if such transfer, sale, pledge or other disposition is not exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee a certification to the effect that such prospective
Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A) to
any employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, Keogh plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, the Underwriter or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA
A-5-5
<PAGE>
and Section 4975 of the Code under Sections I and III of Prohibited Transactions
Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the two preceding
paragraphs.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such
A-5-6
<PAGE>
right may effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Special Servicer, the REMIC Administrator, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent with the consent of the
Holders of Certificates entitled to not less than 662/3% of the Voting Rights
allocated to all of the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-5-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [D-1] [D-2] Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________________
Authorized Officer
A-5-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
------------------------------------
Signature by or on behalf of Assignor
------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by _____________________________, the Assignee
named above, or ____________________, as its agent.
A-5-9
<PAGE>
EXHIBIT A-6
FORM OF CLASS R-I, CLASS R-II AND CLASS R-III CERTIFICATES
CLASS [R-I] [R-II] [R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1998-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: June 1, 1998 Percentage Interest evidenced by
this Certificate: ___%
Closing Date: June 24, 1998 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,564,253,433
First Distribution Date: Trustee and REMIC Administrator:
July 10, 1998 Norwest Bank Minnesota, National
Association
Servicer:
GE Capital Loan Services, Inc.
Special Servicer:
Midland Loan Services, Inc.
Certificate No. [R-I] [R-II] [R-III] -__
A-6-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., MIDLAND LOAN
SERVICES, INC., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
A-6-2
<PAGE>
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE. CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT
TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY
PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH
TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE
OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS, IF ANY, ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class [R-I] [R-II ][R-III] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. (the "Depositor", which term includes any successor entity under
the Agreement), GE Capital Loan Services, Inc. (the "Servicer", which term
includes any successor entity under the Agreement) and Midland Loan Services,
Inc. (the "Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association (the "Trustee" and
"REMIC Administrator", depending upon the capacity in which it is acting, each
of which terms includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the 10th day of such month (or, if
such 10th day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [R-I] [R-II] [R-III]
Certificates on the applicable Distribution Date pursuant to the Agreement. The
"Determination Date" in each month, commencing in July 1998, will be the 5th day
of such month or, if such 5th day is not a Business Day, then the immediately
preceding Business Day. All distributions made under the Agreement on this
Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having
A-6-3
<PAGE>
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Donaldson,
Lufkin & Jenrette Securities Corporation (the "Underwriter") or any of their
respective Affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F- 1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the
A-6-4
<PAGE>
Certificate Registrar one of the certifications described in clause (ii) of the
preceding sentence or the Opinion of Counsel described in clause (iii) of the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in either Exhibit F-2A or
Exhibit F-2B attached to the Agreement are, with respect to the subject
transfer, true and correct. Any Certificateholder desiring to effect a transfer,
sale, pledge or other disposition of this Certificate or any interest herein
shall, and does hereby agree to, indemnify the Depositor, the Underwriter, the
Trustee, any Fiscal Agent, the Servicer, the Special Servicer, the REMIC
Administrator and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition is not exempt from
the registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee a certification to the effect that such prospective
Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A) to
any employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, Keogh plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, the Underwriter or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
A-6-5
<PAGE>
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transactions Class Exemption 95-60.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
Transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the REMIC Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the REMIC
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
A-6-6
<PAGE>
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the four preceding
paragraphs.
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
and the REMIC Administrator the following: (a) written confirmation from each
Rating Agency to the effect that the modification of, addition to or elimination
of such provisions will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the REMIC Administrator, to the effect
that such modification of, addition to or elimination of such provisions will
not cause any REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of a Residual Interest Certificate to a
Person that is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a Person that is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States or a possession thereof, any State or political
subdivision thereof or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its activities
are subject to tax and, except for FHLMC, a majority of its board of directors
is not selected by such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Interest Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or
A-6-7
<PAGE>
any political subdivision thereof, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent, the Certificate Registrar and any agent of the
Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
A-6-8
<PAGE>
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Special Servicer, the REMIC Administrator, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent with the consent of the
Holders of Certificates entitled to not less than 662/3% of the Voting Rights
allocated to all of the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-6-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] Certificates referred to in
the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________________
Authorized Officer
A-6-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
------------------------------------
Signature by or on behalf of Assignor
------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by _____________________________, the Assignee
named above, or ____________________, as its agent.
A-6-11
<PAGE>
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
<PAGE>
- --------------------------------------------------------------------------------
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 1998-CG1
<TABLE>
<CAPTION>
# Property Name Address City
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2 Raritan Plaza I (1A) 100 Fieldcrest Avenue Edison
3 Raritan Center Industrial Portfolio (1A) Various Locations Within Raritan Center Edison
8 Holiday Inn - Jacksonville Airport (1B) 14670 Duval Road Jacksonville
9 Courtyard by Marriott (1B) 14668 Duval Road Jacksonville
13 Embassy Square Suites 2000 N Street, N.W. Washington
14 101 Commerce Drive 101 Commerce Drive Silver Spring
15 Courtyard by Marriott - Pensacola (1C) 451 Creighton Road Pensacola
16 Courtyard by Marriott - Tuscaloosa (1C) 4115 Courtney Drive Tuscaloosa
17 Fairfield Inn - Pensacola (1C) 7325 North Davis Highway Pensacola
18 Fairfield Inn - Birmingham (1C) 707 Key Drive Birmingham
19 Fairfield Inn - Tuscaloosa (1C) 4101 Courtney Drive Tuscaloosa
22 Summer Cove Apartments (2) 7887 North Lockwood Ridge Road Sarasota
26 BLN Office Park II 2051 Killebrew Drive Bloomington
27 Royal Plaza Hotel - Marlborough (1D) 181 Boston Post Road Marlborough
28 Royal Plaza Hotel - Fitchburg (1D) 150 Royal Plaza Drive Fitchburg
33 Ventura Libbit Building 16311 Ventura Boulevard Encino
34 Carroll Park Industrial Center 1900 - 2100 Washington Blvd Baltimore
35 Randall Lane, Park Place I & II and Park Newport 3700-3900 Seven Mile Lane/7219 Park Heights A Baltimore
37 Town & Country Shopping Center 2301-2445 South MacArthur Boulevard Springfield
41 Dominick's Food Store & Multi-Tenant Retail 111, 261-289 N. Randall Road Lake in the Hills
42 Suncrest Plaza Shopping Center 8141-8182 Sunset Boulevard Los Angeles
43 Fabyan Crossing Shopping Center 1900 - 2000 S Randall Road Geneva
47 Breckenridge Apartments 1699 Shanley Drive Columbus
51 Elmwood Regal Center 1963-2023 Elmwood Avenue Buffalo
52 520 Franklin Avenue Medical Building 520 Franklin Avenue Garden City
55 Parkway Towers Apartments 7171 W Gunniso Street Harwood Heights
56 BLN Office Park I 2001 Killebrew Drive Bloomington
57 Garden Plaza Shopping Center 217 and 219 Gutierrez Street Santa Barbara
58 One Phillips Drive 1 Phillips Drive Wright
59 Comfort Inn - Hollywood 2520 Stirling Road Hollywood
63 Cabot Lodge - Gainesville 3726 SW 40th Boulevard Gainesville
64 Hampton Inn & Suites 2500 Stirling Road Hollywood
65 Mercado Del Rancho Shopping Center 10315 North 92nd Street Scottsdale
70 West Garrett Place 275 West Street Annapolis
75 Mount Kisco Square Shopping Center 360 North Bedford Road Mount Kisco
80 Young Circle Shopping Center 1701 - 1735 East Young Circle Hollywood
85 Flower Hill Professional Center (1F) Route 124 & Flower Hill Way Gaithersburg
86 Flower Hill McDonald's (1F) Route 124 and Flower Hill Way Gaithersburg
88 Ultra Plaza Shopping Center (3) 8401-8501 Indianapolis Boulevard Highland
91 Olde Mill Shopping Center Old Canton Road & NWC Upper Roswell Road Marietta
92 Regal Cinemas Center-Lancaster 2262 Transit & Wehrle Drive Lancaster
93 Temescal Business Center 2810 - 2850 7th Street & 745 - 829 Heinz Avenue Berkeley
94 Houston Centre 3850 West Main Street Dothan
95 Pellcare Nursing Home - Winston-Salem (1G) 5941 Old Walkertown Road Winston-Salem
96 Pellcare Nursing Home - Hickory (1G) 1125 10th Street Blvd. NW Hickory
97 Vista Mar Apartments 8514 Lazy Acres Circle Dallas
99 Super 8 Geary Street 1015 Geary Street San Francisco
100 Cabot Lodge - Tallahassee 2735 N. Monroe Street Tallahassee
101 Kessel Foods 5249 Corunna, 1906 Davison, 3838 Richfield Flint
103 Wyoming-Enzie Properties (1H) Wyoming Avenue & Enzie Drive Las Cruces
104 Mesa Properties (1H) 2301 Kent,1132 &1430 Mesa, 2520 Hagarty, 112 Las Cruces
106 Bartlett Commons NWC Route 59 & Stearns Road Bartlett
107 Crowley Village Shopping Center 2008 North Parkerson Avenue Crowley
108 Tivoli Condominiums (1I) 285 Scandia Circle Athens
109 Cross Creek Apartments (1I) 600 Riverbend Parkway Athens
110 Tamara Hills Townhomes (1I) 102-110 and 119-142 Tamara Court Athens
111 The Bell Rock Inn 6246 Highway 179 Sedona
112 Howard Johnson Hotel 2401 West Hundred Road Chester
113 Camelot Apartments 2840 Robinson Road Jackson
118 Constitution Square 2186 Shattuck Avenue Berkley
121 Sierra Point Apartments 3800 Portland Street Irving
122 Menlo Avenue Office Building 800 - 830 Menlo Avenue Menlo Park
123 Henderson Marketplace 901 Beckford Drive Henderson
124 Stone Creek Apartments 11500 Huebner Road San Antonio
125 Florida Avenue Apartments 1107 - 1209 E. Flordia Avenue Urbana
128 Sunrise Square Shopping Center 6721 North Blackstone Avenue Fresno
130 1500 Plaza Office Building 1500 NE Irving Street Portland
<CAPTION>
Original
Term to
Original 6/1/98 Stated
Zip Principal Cut-off Date Monthly Mortgage Maturity
# County State Code Balance Balance P&I Rate (months)(7)
- ----- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
2 Middlesex NJ 08818 $ 27,500,000 $ 27,484,832 $ 190,404 7.400% 120
3 Middlesex NJ 08818 $ 24,500,000 $ 24,486,486 $ 169,633 7.400% 120
8 Duval FL 32218 $ 17,400,000 $ 17,361,592 $ 124,985 7.180% 120
9 Duval FL 32218 $ 4,600,000 $ 4,589,846 $ 33,042 7.180% 120
13 District of Columbia DC 20036 $ 18,000,000 $ 17,899,848 $ 133,018 7.500% 120
14 Cumberland PA 17055 $ 17,000,000 $ 16,944,006 $ 113,444 7.030% 120
15 Escambia FL 32504 $ 5,200,000 $ 5,194,990 $ 37,922 7.350% 120
16 Tuscaloosa AL 35405 $ 3,870,000 $ 3,866,230 $ 28,097 7.300% 120
17 Escambia FL 32504 $ 3,120,000 $ 3,116,994 $ 22,753 7.350% 120
18 Shelby AL 35242 $ 2,380,000 $ 2,377,707 $ 17,356 7.350% 120
19 Tuscaloosa AL 35405 $ 1,930,000 $ 1,928,120 $ 14,012 7.300% 120
22 Manatee FL 34243 $ 15,250,000 $ 15,250,000 $ 104,949 7.130% 120
26 Hennepin MN 55425 $ 13,600,000 $ 13,548,266 $ 92,131 7.180% 180
27 Middlesex MA 01752 $ 10,500,000 $ 10,478,542 $ 78,210 7.590% 120
28 Worcester MA 01420 $ 2,600,000 $ 2,594,687 $ 19,366 7.590% 120
33 Los Angeles CA 91436 $ 12,200,000 $ 12,180,479 $ 98,208 7.490% 240
34 Baltimore MD 21230 $ 11,905,000 $ 11,905,000 $ 82,428 7.400% 120
35 Baltimore MD 21208 $ 11,500,000 $ 11,464,221 $ 78,997 7.320% 120
37 Sangamon IL 62704 $ 11,150,000 $ 11,135,647 $ 77,810 7.480% 120
41 McHenry IL 60102 $ 10,350,000 $ 10,317,352 $ 70,605 7.250% 120
42 Los Angeles CA 90046 $ 10,000,000 $ 9,968,518 $ 68,285 7.260% 120
43 Kane IL 60134 $ 9,840,000 $ 9,826,481 $ 66,926 7.220% 180
47 Franklin OH 43224 $ 9,425,000 $ 9,347,127 $ 74,888 8.860% 120
51 Erie NY 14207 $ 8,500,000 $ 8,450,782 $ 79,328 7.610% 180
52 Nassau NY 11530 $ 8,300,000 $ 8,300,000 $ 56,733 7.270% 120
55 Cook IL 60656 $ 8,000,000 $ 7,980,251 $ 53,278 7.010% 120
56 Henneoin MN 55425 $ 8,000,000 $ 7,969,568 $ 54,195 7.180% 180
57 Santa Barbara CA 93101 $ 7,600,000 $ 7,571,963 $ 54,622 7.530% 120
58 Luzerne PA 18707 $ 7,500,000 $ 7,475,299 $ 50,049 7.030% 120
59 Broward FL 33020 $ 7,340,000 $ 7,317,234 $ 53,623 7.370% 120
63 Alachua FL 32618 $ 7,000,000 $ 6,984,548 $ 50,281 7.180% 120
64 Broward FL 33020 $ 7,000,000 $ 6,977,329 $ 50,146 7.150% 120
65 Maricopa AZ 85258 $ 7,000,000 $ 6,976,628 $ 46,383 6.960% 120
70 Anne Arundel MD 21401 $ 6,850,000 $ 6,840,307 $ 46,034 7.100% 120
75 Mid-Westchester NY 10549 $ 6,600,000 $ 6,585,159 $ 46,985 7.080% 120
80 Broward FL 33020 $ 6,100,000 $ 6,086,963 $ 40,175 6.900% 120
85 Montgomery MD 20879 $ 5,000,000 $ 5,000,000 $ 35,338 7.610% 120
86 Montgomery MD 20879 $ 800,000 $ 800,000 $ 6,499 7.610% 120
88 Lake IN 46112 $ 5,680,000 $ 5,680,000 $ 39,731 7.300% 120
91 Cobb GA 30062 $ 5,500,000 $ 5,487,972 $ 39,684 7.230% 240
92 Erie NY 14221 $ 5,500,000 $ 5,466,243 $ 46,834 7.610% 216
93 Alameda CA 94707 $ 5,350,000 $ 5,330,124 $ 36,642 7.290% 120
94 Houston AL 36622 $ 5,200,000 $ 5,200,000 $ 34,352 6.930% 120
95 Forsyth NC 27105 $ 3,068,000 $ 3,061,017 $ 22,732 7.530% 120
96 Catawba NC 28601 $ 2,132,000 $ 2,127,148 $ 15,797 7.530% 120
97 Dallas TX 75240 $ 5,200,000 $ 5,192,803 $ 35,262 7.190% 120
99 San Francisco CA 94124 $ 5,100,000 $ 5,100,000 $ 41,586 7.660% 240
100 Leon FL 32303 $ 5,000,000 $ 4,988,963 $ 35,915 7.180% 120
101 Genesee MI Various $ 4,980,000 $ 4,951,913 $ 36,543 7.420% 120
103 Dona Ana NM 88001 $ 3,100,000 $ 3,100,000 $ 20,854 7.110% 180
104 Dona Ana NM 88001 $ 1,800,000 $ 1,800,000 $ 12,849 7.110% 180
106 DuPage IL 60103 $ 4,850,000 $ 4,847,504 $ 34,278 7.610% 180
107 Acardia LA 70527 $ 4,800,000 $ 4,792,990 $ 31,838 6.970% 120
108 Clarke GA 30605 $ 2,100,000 $ 2,098,758 $ 14,226 7.180% 120
109 Clarke GA 30605 $ 1,480,000 $ 1,479,124 $ 10,026 7.180% 120
110 Clarke GA 30606 $ 1,070,000 $ 1,069,367 $ 7,249 7.180% 120
111 Yavapai AZ 86351 $ 4,650,000 $ 4,635,918 $ 34,333 7.490% 120
112 Chesterfield VA 23831 $ 4,600,000 $ 4,595,859 $ 34,444 7.650% 120
113 Hinds MS 39209 $ 4,600,000 $ 4,593,379 $ 30,697 7.030% 120
118 Alameda CA 94704 $ 4,400,000 $ 4,392,205 $ 31,246 7.340% 120
121 Dallas TX 75038 $ 4,350,000 $ 4,331,319 $ 29,822 7.300% 120
122 San Mateo CA 94025 $ 4,300,000 $ 4,297,527 $ 29,392 7.270% 120
123 Vance NC 27536 $ 4,300,000 $ 4,292,570 $ 33,312 6.990% 120
124 Bexar TX 78230 $ 4,270,000 $ 4,263,734 $ 28,265 6.950% 120
125 Champaign IL 61801 $ 4,200,000 $ 4,191,479 $ 28,225 7.100% 120
128 Fresno CA 93710 $ 4,200,000 $ 4,177,220 $ 31,449 7.650% 120
130 Multnomah OR 97232 $ 4,100,000 $ 4,084,996 $ 28,276 7.360% 120
<CAPTION>
Remaining
Term to Original Remaining
Stated Amortization Amortization
Maturity Maturity Term Term Mortgage Column Third
# (months)(7) Date (months) (months) Loan Seller Party Originator ARD (8)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
2 119 5/1/08 360 359 Column N/A
3 119 5/1/08 360 359 Column N/A
8 118 4/1/23 300 298 Column N/A 4/1/08
9 118 4/1/23 300 298 Column N/A 4/1/08
13 115 1/1/23 300 295 Column N/A 1/1/08
14 116 2/1/08 360 356 Column N/A
15 119 5/1/08 300 299 Column Union Capital
16 119 5/1/08 300 299 Column Union Capital
17 119 5/1/08 300 299 Column Union Capital
18 119 5/1/08 300 299 Column Union Capital
19 119 5/1/08 300 299 Column Union Capital
22 114 12/1/07 336 336 Column N/A
26 175 1/1/13 360 355 Column N/A
27 118 4/1/23 300 298 Column ITLA 4/1/08
28 118 4/1/23 300 298 Column ITLA 4/1/08
33 239 5/1/18 240 239 Column N/A
34 120 6/1/08 360 360 Column N/A
35 116 2/1/08 360 356 Column N/A
37 118 4/1/08 360 358 Column N/A
41 116 2/1/08 360 356 Column N/A
42 116 2/1/08 360 356 Column N/A
43 178 4/1/13 360 358 Column N/A
47 106 4/1/07 360 346 Column N/A
51 178 4/1/13 180 178 Column N/A
52 120 6/1/08 360 360 Column N/A
55 117 3/1/08 360 357 Column N/A
56 175 1/1/13 360 355 Column N/A
57 116 2/1/08 330 326 Column N/A
58 116 2/1/08 360 356 Column N/A
59 117 3/1/23 300 297 Column N/A 3/1/08
63 118 4/1/23 300 298 Column N/A 4/1/08
64 117 3/1/23 300 297 Column N/A 3/1/08
65 116 2/1/08 360 356 Column N/A
70 118 4/1/08 360 358 Column N/A
75 118 4/1/08 300 298 Column N/A
80 117 3/1/08 360 357 Column N/A
85 120 6/1/08 360 360 Column N/A
86 120 6/1/08 240 240 Column N/A
88 120 6/1/08 336 336 Column N/A
91 238 4/1/18 300 298 Column N/A
92 213 3/1/16 216 213 Column N/A
93 115 1/1/08 360 355 Column N/A
94 120 6/1/08 360 360 Column N/A
95 118 4/1/08 300 298 Column Union Capital
96 118 4/1/08 300 298 Column Union Capital
97 118 4/1/08 360 358 Column N/A
99 240 6/1/18 240 240 Column N/A
100 118 4/1/23 300 298 Column N/A 4/1/08
101 115 1/1/08 300 295 Column N/A
103 180 6/1/13 360 360 Column N/A
104 180 6/1/13 300 300 Column N/A
106 179 5/1/13 360 359 Column N/A
107 118 4/1/08 360 358 Column N/A
108 119 5/1/08 360 359 Column N/A
109 119 5/1/08 360 359 Column N/A
110 119 5/1/08 360 359 Column N/A
111 117 3/1/23 300 297 Column N/A 3/1/08
112 119 5/1/23 300 299 Column N/A 5/1/08
113 118 4/1/08 360 358 Column N/A
118 118 4/1/08 324 322 Column N/A
121 114 12/1/07 360 354 Column N/A
122 119 5/1/08 360 359 Column N/A
123 119 5/1/08 240 239 Column N/A
124 118 4/1/08 360 358 Column N/A
125 117 3/1/08 360 357 Column N/A
128 115 1/1/08 300 295 Column N/A
130 115 1/1/08 360 355 Column N/A
<CAPTION>
Defeasance Fee Simple/ Interest Calculation
# Option (9) Leasehold (30/360 / Actual/360)
- --------- -------------------------------------------------------------
<S> <C> <C> <C>
2 Yes Fee Actual/360
3 Yes Fee Actual/360
8 Yes Fee Actual/360
9 Yes Fee Actual/360
13 Yes Fee Actual/360
14 Yes Fee Actual/360
15 Yes Fee Actual/360
16 Yes Leasehold Actual/360
17 Yes Fee Actual/360
18 Yes Fee Actual/360
19 Yes Leasehold Actual/360
22 Yes Fee Actual/360
26 Yes Fee Actual/360
27 Yes Fee Actual/360
28 Yes Fee Actual/360
33 Yes Leasehold Actual/360
34 Yes Fee Actual/360
35 Yes Fee Actual/360
37 Yes Fee Actual/360
41 Yes Fee Actual/360
42 Yes Fee Actual/360
43 Yes Fee Actual/360
47 No Fee 30/360
51 Yes Fee/Leasehold Actual/360
52 Yes Fee Actual/360
55 Yes Fee 30/360
56 Yes Fee Actual/360
57 Yes Fee Actual/360
58 Yes Fee Actual/360
59 Yes Fee Actual/360
63 Yes Fee Actual/360
64 Yes Fee Actual/360
65 Yes Fee Actual/360
70 Yes Fee Actual/360
75 Yes Fee Actual/360
80 Yes Fee Actual/360
85 No Fee Actual/360
86 No Fee Actual/360
88 Yes Fee Actual/360
91 Yes Fee Actual/360
92 Yes Fee Actual/360
93 Yes Fee Actual/360
94 Yes Fee Actual/360
95 Yes Fee 30/360
96 Yes Fee 30/360
97 Yes Fee Actual/360
99 Yes Fee Actual/360
100 Yes Fee Actual/360
101 Yes Fee Actual/360
103 Yes Fee Actual/360
104 Yes Fee Actual/360
106 Yes Fee Actual/360
107 Yes Leasehold Actual/360
108 Yes Fee Actual/360
109 Yes Fee Actual/360
110 Yes Fee Actual/360
111 Yes Fee Actual/360
112 Yes Fee Actual/360
113 Yes Fee Actual/360
118 Yes Fee Actual/360
121 Yes Fee Actual/360
122 Yes Fee Actual/360
123 Yes Fee Actual/360
124 Yes Fee Actual/360
125 Yes Fee Actual/360
128 Yes Fee Actual/360
130 Yes Fee Actual/360
</TABLE>
<PAGE>
- --------------------------------------------------------------------------------
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 1998-CG1
<TABLE>
<CAPTION>
# Property Name Address City
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
131 New West Village Apartments 238 East Oates Road Garland
134 Hidden Bay Village Apartments 1485 Ash Circle Casselberry
135 Raintree Apartments 3500 Fernandina Road Columbia
136 The Office Centre at Dunwoody Village 1530 - 1536 Dunwoody Village Pky Atlanta
137 Seminary Plaza 2807-2851 Homer Adams Parkway Alton
140 Comfort Inn - Dothan 3593 Ross Clark Circle Dothan
141 Wind River Office Building 405 Briarwood Drive Jackson
143 Marriott Courtyard - Dothan 3040 Ross Clark Circle Dothan
144 Tivoli Apartments 1029 Tivoli Cresecent Virginia Beach
146 Holiday Inn Express - Washington 9220 E. Mission Avenue Spokane
147 Mariner Crossing Shopping Center 4221 Mariner Boulevard Spring Hill
150 Sherman Oaks 14144 Ventura Blvd. Los Angeles (Sherman Oaks)
151 South Plains Apartments 5520 58th Street Lubbock
152 Royal Oaks Apartments 5420 NW 27th Street Lauderhill
153 Northwinds Apartment Complex 2561 Fassitt Road North Charleston
155 Lloyd Office Plaza 1425 NE Irving Street Portland
156 Bridge Street Lodge (1J) 278 Hanson Ranch Road Vail
157 P & R Building (1J) 228 Bridge Street Vail
158 Holiday Inn - Dothan 2195 Ross Clark Circle Dothan
159 Hampton North Townhomes & Apartments 12324 Starcrest Drive San Antonio
160 Holiday Inn - Lake Havasu 245 London Bridge Road Lake Havasu City
162 Galleria Mall 1208 & 1214 South University Ave Ann Arbor
164 One Energy Square 3100-3300 Andrews Highway Odessa
165 Orchard Plaza Shopping Center East Main Street/ Highway 550 & Farmington Ave Farmington
166 The Mark Mobile Home Park 3200 13th Street St. Cloud
167 Rivershores Apartments 1305 W. Vistula Bristol
169 Governor's Palace, Ridgmar Americana & West A Ridgmar Boulevard North of IH-30 (West Freeway) Fort Worth
170 Brookhollow Apartments 1431 David Ave. Desoto
171 Cedarfield Plaza (1K) 496 Long Pond Road and Cedarfield Commons Rochester
172 Greece Mini Storage (1K) 45 Cedarfield Commons Rochester
173 Gander Mountain / JoAnn Fabrics Center 14100 & 14110 Pardee Road Taylor
174 The Colonnade at Turtle Creek Apartments 3311 Blackburn Street Dallas
175 601 Franklin Avenue Medical Building 601 Franklin Avenue Garden City
178 Brea Center 720-796 N. Brea Boulevard Brea
179 Holiday Inn Express 2532 Castro Valley Blvd Castro Valley
181 Park Central Office Park 110, 130, 150 & 190 Linden Oaks Pittsford
183 Langley Place 10 Langley Road Newton
185 The Woodlands Shopping Center 13492 Research Boulevard Austin
186 St. Marys Plaza 1529 West St. Mary's Road Tucson
187 Mountain Park Pavilions II 3820 East Ray Road Phoenix
188 Shady Banks Shopping Center 2900 Hampton Highway Yorktown
190 Riverview Business Plaza 276 -294, 314-330, 334-346 Chester Street St Paul
191 Cumberland Station Shopping Center 768 South Jefferson Avenue Cookeville
193 Westover Pointe Center 2700 Dawson Road Albany
194 Towne East Village Apartments 9060 F.M. 78 Converse
195 Super Crown Books & LaJolla Patio 1092 El Camino Real Encinitas
196 Bent Oak Apartments 200 Old Boiling Springs Road Greenville
197 Summit Apartments 1348 Thorpe Lane San Marcos
198 Jefferson Square Mall 2704-2900 South Sixth Street Klamath Falls
202 4 Hartwell Place 4 Hartwell Place Lexington
204 Stewart Creek Shopping Center 6803 Preston Road Frisco
206 Lookout Ridge Apartments 201 Lookout Ridge Blvd. Harker Heights
207 Orangethorpe Beach Shopping Center 7802-7814 Orangethorpe Avenue Buena Park
209 Waterford Village Shopping Center 5570-5640 Dixie Highway Waterford Twp.
212 Sterling Industrial Park 201 Davis Drive Sterling
214 Woodlawn Village Shopping Center 282 Deacon Road Fredricksburg
215 Bolton-Moore's Mill Shopping Center 2271-2581 Marietta Boulevard Atlanta
216 Omni Plaza Shopping Center 2815-35 Jerusalem Avenue North Bellmore
217 Shield Street Plaza 138-162 Shield Street West Hartford
220 Penninsula Professional Building 11818 Rock Landing Drive Newport News
221 Creekside Mobile Estates 5101 NE 121st Avenue Vancouver
222 Alexandria Square 949-59 East Aurora Road Macedonia
223 Advo Building 102 South Wynstone Park Drive North Barrington
226 River's Edge Apartments 1425 LeForge Ypsilanti
227 109-111 Grant Avenue 109 -111 Grant Avenue Endicott
228 Royal Oaks Senior Community Park 750 Wood Sorrell Drive Petaluma
229 Parker Marketplace Phase II 18721 - 18741 East Ponderosa Drive Parker
230 Summer Creek Apartments 5055 Harbour Lake Drive Goose Creek
<CAPTION>
Original
Term to
Original 6/1/98 Stated
Zip Principal Cut-off Date Monthly Mortgage Maturity
# County State Code Balance Balance P&I Rate (months)(7)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
131 Dallas TX 75043 $ 4,100,000 $ 4,084,931 $ 28,220 7.340% 84
134 Seminole FL 32707 $ 4,000,000 $ 4,000,000 $ 26,451 6.940% 120
135 Lexington SC 29210 $ 4,000,000 $ 4,000,000 $ 26,451 6.940% 120
136 DeKalb GA 30338 $ 4,000,000 $ 3,997,648 $ 27,152 7.200% 120
137 Madison IL 62002 $ 4,000,000 $ 3,994,825 $ 27,859 7.460% 120
140 Houston AL 36303 $ 3,900,000 $ 3,891,660 $ 28,441 7.350% 120
141 Hinds MS 39206 $ 3,875,000 $ 3,875,000 $ 27,015 7.470% 120
143 Houston AL 36302 $ 3,710,000 $ 3,702,066 $ 27,056 7.350% 120
144 N/A VA 23456 $ 3,700,000 $ 3,700,000 $ 24,467 6.940% 120
146 Spokane WA 99206 $ 3,650,000 $ 3,646,752 $ 27,450 7.700% 120
147 Hernando FL 34609 $ 3,600,000 $ 3,592,658 $ 24,145 7.080% 120
150 Los Angeles CA 91403 $ 3,600,000 $ 3,587,886 $ 23,758 6.920% 120
151 Lubbock TX 79414 $ 3,525,000 $ 3,513,458 $ 23,594 7.060% 84
152 Broward FL 33313 $ 3,520,000 $ 3,506,589 $ 24,444 7.430% 120
153 Charleston SC 29406 $ 3,500,000 $ 3,500,000 $ 26,184 7.640% 120
155 Multnomah OR 97232 $ 3,500,000 $ 3,487,192 $ 24,138 7.360% 120
156 Eagle CO 81657 $ 2,550,000 $ 2,534,536 $ 23,624 7.490% 180
157 Eagle CO 81657 $ 900,000 $ 894,542 $ 8,338 7.490% 180
158 Houston AL 36302 $ 3,400,000 $ 3,392,729 $ 24,795 7.350% 120
159 Bexar TX 78216 $ 3,400,000 $ 3,386,446 $ 22,529 6.960% 120
160 Mohave AZ 86403 $ 3,400,000 $ 3,381,338 $ 25,303 7.580% 120
162 Washtenaw MI 48104 $ 3,300,000 $ 3,294,578 $ 26,223 7.320% 120
164 Ector TX 79762 $ 3,189,354 $ 3,187,768 $ 23,256 7.890% 114
165 Farmington NM 87401 $ 3,200,000 $ 3,185,813 $ 23,280 7.910% 120
166 Osceola FL 34769 $ 3,200,000 $ 3,182,250 $ 24,446 6.810% 84
167 Elkhart IN 46507 $ 3,180,000 $ 3,175,356 $ 21,093 6.970% 120
169 Tarrant TX 76116 $ 3,100,000 $ 3,095,825 $ 21,253 7.300% 120
170 Dallas TX 75115 $ 3,100,000 $ 3,088,680 $ 21,400 7.370% 120
171 Monroe NY 14612 $ 1,550,000 $ 1,547,923 $ 10,647 7.320% 120
172 Monroe NY 14612 $ 1,500,000 $ 1,496,774 $ 10,910 7.320% 120
173 Wayne MI 48180 $ 3,050,000 $ 3,039,569 $ 24,552 7.490% 120
174 Dallas TX 75204 $ 3,030,000 $ 3,025,575 $ 20,098 6.970% 120
175 Nassau NY 11530 $ 3,000,000 $ 3,000,000 $ 20,506 7.270% 120
178 Orange CA 92621 $ 3,000,000 $ 2,994,596 $ 21,059 7.540% 120
179 Alameda CA 94546 $ 3,000,000 $ 2,991,274 $ 22,542 7.690% 120
181 Monroe NY 14625 $ 2,950,000 $ 2,944,341 $ 20,244 7.310% 120
183 Middlesex MA 02159 $ 2,900,000 $ 2,892,843 $ 19,862 7.080% 120
185 Williamson TX 78750 $ 2,850,000 $ 2,839,795 $ 19,850 7.460% 120
186 Pima AZ 85745 $ 2,840,000 $ 2,831,233 $ 19,586 7.360% 120
187 Maricopa AZ 85044 $ 2,800,000 $ 2,800,000 $ 25,702 7.340% 180
188 York VA 23693 $ 2,800,000 $ 2,798,390 $ 19,139 7.270% 120
190 Ramsey MN 55107 $ 2,750,000 $ 2,748,656 $ 19,720 7.760% 120
191 Putnam TN 38501 $ 2,750,000 $ 2,748,609 $ 19,531 7.660% 120
193 Dougherty GA 31707 $ 2,700,000 $ 2,698,620 $ 19,120 7.630% 120
194 Bexar TX 78109 $ 2,700,000 $ 2,690,205 $ 18,694 7.400% 120
195 San Diego CA 92024 $ 2,700,000 $ 2,674,866 $ 24,663 7.260% 180
196 Greenville SC 29650 $ 2,650,000 $ 2,650,000 $ 17,524 6.940% 120
197 Hays TX 78666 $ 2,610,000 $ 2,606,458 $ 17,840 7.270% 120
198 Klamath OR 97603 $ 2,600,000 $ 2,600,000 $ 19,281 7.540% 120
202 Middlesex MA 02173 $ 2,550,000 $ 2,547,543 $ 18,596 7.350% 120
204 Collin TX 75034 $ 2,550,000 $ 2,541,450 $ 18,286 7.760% 180
206 Bell TX 76548 $ 2,500,000 $ 2,500,000 $ 16,801 7.100% 120
207 Orange CA 90621 $ 2,500,000 $ 2,498,679 $ 17,532 7.530% 120
209 Oakland MI 48329 $ 2,500,000 $ 2,492,246 $ 18,264 7.370% 120
212 Loudoun VA 20164 $ 2,400,000 $ 2,400,000 $ 17,533 7.370% 120
214 Stafford VA 22405 $ 2,320,000 $ 2,318,602 $ 15,622 7.120% 120
215 Fulton GA 30318 $ 2,300,000 $ 2,298,796 $ 16,177 7.560% 120
216 Nassau NY 11710 $ 2,300,000 $ 2,298,698 $ 15,799 7.320% 120
217 Hartford CT 06110 $ 2,300,000 $ 2,287,333 $ 17,087 7.560% 120
220 Newport News VA 23612 $ 2,200,000 $ 2,198,775 $ 15,187 7.370% 120
221 Clark WA 98682 $ 2,200,000 $ 2,196,864 $ 14,740 7.070% 120
222 Summit OH 44056 $ 2,180,000 $ 2,167,012 $ 19,974 7.310% 120
223 Lake IL 60010 $ 2,150,000 $ 2,148,841 $ 14,989 7.470% 120
226 Washtenaw MI 48198 $ 2,100,000 $ 2,096,004 $ 14,454 7.340% 120
227 Broome NY 13760 $ 2,100,000 $ 2,095,796 $ 14,184 7.150% 120
228 Sonoma CA 94952 $ 2,100,000 $ 2,093,271 $ 14,212 7.170% 120
229 Douglas CO 80134 $ 2,080,000 $ 2,078,819 $ 14,274 7.310% 120
230 Berkeley SC 29445 $ 2,060,000 $ 2,060,000 $ 13,622 6.940% 120
<CAPTION>
Remaining
Term to Original Remaining
Stated Amortization Amortization
Maturity Maturity Term Term Mortgage Column Third
# (months)(7) Date (months) (months) Loan Seller Party Originator ARD (8)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
131 79 1/1/05 360 355 Column N/A
134 120 6/1/08 360 360 Column N/A
135 120 6/1/08 360 360 Column N/A
136 119 5/1/08 360 359 Column N/A
137 118 4/1/08 360 358 Column N/A
140 118 4/1/08 300 298 Column Union Capital
141 120 6/1/08 360 360 Column N/A
143 118 4/1/08 300 298 Column Union Capital
144 120 6/1/08 360 360 Column N/A
146 119 5/1/08 300 299 Column ITLA
147 117 3/1/08 360 357 Column N/A
150 116 2/1/08 360 356 Column ITLA
151 80 2/1/05 360 356 Column N/A
152 115 1/1/08 360 355 Column N/A
153 120 6/1/08 300 300 Column N/A
155 115 1/1/08 360 355 Column N/A
156 178 4/1/13 180 178 Column N/A
157 178 4/1/13 180 178 Column N/A
158 118 4/1/08 300 298 Column Union Capital
159 115 1/1/08 360 355 Column N/A
160 115 1/1/23 300 295 Column N/A 1/1/08
162 119 5/1/08 240 239 Column N/A
164 113 11/1/07 354 353 Column N/A
165 113 11/1/07 360 353 Column N/A
166 81 3/1/05 240 237 Column N/A
167 118 4/1/08 360 358 Column N/A
169 118 4/1/08 360 358 Column N/A
170 115 1/1/08 360 355 Column N/A
171 118 4/1/08 360 358 Column N/A
172 118 4/1/08 300 298 Column N/A
173 118 4/1/08 240 238 Column N/A
174 118 4/1/08 360 358 Column N/A
175 120 6/1/08 360 360 Column N/A
178 117 3/1/08 360 357 Column N/A
179 117 3/1/23 300 297 Column N/A 3/1/08
181 117 3/1/08 360 357 Column N/A
183 117 3/1/08 336 333 Column N/A
185 115 1/1/08 360 355 Column N/A
186 116 2/1/08 360 356 Column N/A
187 180 6/1/13 180 180 Column N/A
188 119 5/1/08 360 359 Column N/A
190 119 5/1/08 360 359 Column N/A
191 119 5/1/08 360 359 Column N/A
193 119 5/1/08 360 359 Column N/A
194 115 1/1/08 360 355 Column N/A
195 177 3/1/13 180 177 Column N/A
196 120 6/1/08 360 360 Column N/A
197 118 4/1/08 360 358 Column N/A
198 120 6/1/08 300 300 Column N/A
202 119 5/1/08 300 299 Column Union Capital
204 175 1/1/13 360 355 Column N/A
206 120 6/1/08 360 360 Column N/A
207 119 5/1/08 360 359 Column N/A
209 117 3/1/08 300 297 Column N/A
212 120 6/1/08 300 300 Column N/A
214 119 5/1/08 360 359 Column N/A
215 119 5/1/08 360 359 Column N/A
216 119 5/1/08 360 359 Column N/A
217 115 1/1/08 300 295 Column N/A
220 119 5/1/08 360 359 Column N/A
221 118 4/1/08 360 358 Column Union Capital
222 118 4/1/08 180 178 Column N/A
223 119 5/1/08 360 359 Column N/A
226 117 3/1/08 360 357 Column N/A
227 117 3/1/08 360 357 Column N/A
228 116 2/1/08 360 356 Column N/A
229 119 5/1/08 360 359 Column N/A
230 120 6/1/08 360 360 Column N/A
<CAPTION>
Defeasance Fee Simple/ Interest Calculation
# Option (9) Leasehold (30/360 / Actual/360)
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
131 Yes Fee Actual/360
134 Both Fee Actual/360
135 Both Fee Actual/360
136 Yes Fee Actual/360
137 Yes Fee Actual/360
140 Yes Fee Actual/360
141 Yes Fee Actual/360
143 Yes Fee Actual/360
144 Both Fee Actual/360
146 Yes Fee Actual/360
147 Yes Fee Actual/360
150 Yes Fee Actual/360
151 Yes Fee Actual/360
152 Yes Fee 30/360
153 Yes Fee Actual/360
155 Yes Fee Actual/360
156 Yes Fee 30/360
157 Yes Fee 30/360
158 Yes Fee Actual/360
159 Yes Fee Actual/360
160 Yes Fee Actual/360
162 Yes Fee Actual/360
164 No Fee Actual/360
165 No Fee Actual/360
166 Yes Fee Actual/360
167 Yes Fee Actual/360
169 Yes Fee Actual/360
170 Yes Fee Actual/360
171 Yes Fee Actual/360
172 Yes Fee Actual/360
173 Yes Fee Actual/360
174 Yes Fee Actual/360
175 Yes Fee Actual/360
178 Yes Fee Actual/360
179 Yes Fee Actual/360
181 Yes Fee Actual/360
183 Yes Fee Actual/360
185 Yes Fee Actual/360
186 Yes Fee Actual/360
187 Yes Fee 30/360
188 Both Fee Actual/360
190 Yes Fee Actual/360
191 Yes Fee Actual/360
193 Yes Fee Actual/360
194 Yes Fee Actual/360
195 Yes Fee 30/360
196 Both Fee Actual/360
197 Yes Fee Actual/360
198 Yes Fee Actual/360
202 Yes Fee Actual/360
204 No Fee Actual/360
206 Yes Fee Actual/360
207 Yes Fee Actual/360
209 Yes Fee Actual/360
212 Yes Fee Actual/360
214 Both Fee Actual/360
215 Yes Fee Actual/360
216 Yes Fee Actual/360
217 Yes Fee Actual/360
220 Both Fee Actual/360
221 Yes Fee Actual/360
222 No Fee Actual/360
223 Yes Fee Actual/360
226 No Fee Actual/360
227 Yes Fee Actual/360
228 Yes Fee Actual/360
229 Yes Fee Actual/360
230 Both Fee Actual/360
</TABLE>
<PAGE>
- --------------------------------------------------------------------------------
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 1998-CG1
<TABLE>
<CAPTION>
# Property Name Address City
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
232 Woodcrest Townhome Apartments 1628 Woodcrest Drive Daytona Beach
234 Stone Oak Apartments 3151 Jennings Road Independence
235 Hidden Hills Mobile Home Park 4190 North Spring Garden Avenue DeLand
236 Tiger Mart 1001 Highway 67 Alvarado
237 Quail Hollow Business Park 6548 Carmel Road & 7523 Little Avenue Charlotte
238 Campus Square Apartments 316 Fry Street Denton
239 Bridgeport Professional Building 7424 Bridgeport Way West Tacoma
240 Park Lane Terrace Apartments 6830 Larmanda Street Dallas
241 Brigham's Landing Shopping Center 200 West University Parkway Provo
243 The Clusters Apartments 3130; 3220-46 Webb Chapel Ext., 3203-03 Norw Dallas
244 Fairfield Inn - Dothan 3038 Ross Clark Circle Dothan
245 Valley Manor 856 S. Central Avenue Kent
246 Sunrise Village Apartments 48 West 2nd South Rexburg
249 Ramada Limited 21598 Foothill Blvd Hayward
250 Secluded Oaks Villas Apartments 8642 Fredericksburg Road San Antonio
251 Colonial Mobile Home Park 2600 East Division Street Mt. Vernon
252 Plaza North Medical Building 3385 Burns Road Palm Beach Gardens
254 Northlake Quadrangle 2200 Northlake Parkway Atlanta
257 Sepulveda Crest Apartments 6640 Sepulveda Boulevard Los Angeles (Van Nuys)
259 Chateaux Verde Apartments 13050 West Cedar Drive Lakewood
260 Homestead Corner Shopping Center 13540 - 13670 Grove Drive Maple Grove
261 Lake Villa Apartments 3500 Watkins Lake Road Waterford
262 F & H Warehouse 470 Commack Road Deer Park
263 Avian Plaza Shopping Center SWC Evesham Road & Brendenwood Drive Voorhees Township
266 The Miller Center 1224 Ellis Avenue Jackson
267 Emerald Park Apartments 2200 Flower Tree Circle Melbourne
269 French Quarters East Apartments 808 East 100th Terrace Kansas City
270 The Forest Apartments 6756 103rd Street Jacksonville
272 STOR-N-LOCK 7840 Wayne Road Westland
275 Savoy Condominiums 303 Detroit Avenue Lubbock
278 Courtyard Plaza 349 - 351 North Main Street Andover
279 Tradewinds Apartments 5717 Timuquana Road Jacksonville
280 Regency Manor Apartments 5042 Wildflower San Antonio
282 Mauna Kea Apartments 3601 W. Orange Avenue Anaheim
284 Evergreen Place Condominiums 3860 Evergreen Street Irving
285 Autumn Creek Apartments 10749 - 10765 East Northwest Highway Dallas
286 Midtown at Main 1100 Main Avenue Moorhead
289 Villa Catalina Apartments 440 South Catalina Street Los Angeles
291 Rancho Villa 10302 Lakeview Avenue SW Lakewood
292 Timberline Mobile Home Park 19625 East Wellesley Otis Ochards
293 Timberland Ridge Apartments 7501 & 7511 Greenfield Avenue Mounds View
294 Leewood Apartments 1000 Northwood Drive Houston
295 Glen Mark Apartments 1709 Martin Bluff Road Gautier
296 Pinecroft Mobile Home Park 11920 East Mansfield Avenue Spokane
297 Eckerds Drugstore 5120 34th Street and Slide Road Lubbock
298 Eastern Promenade Apartments 250 - 256 Eastern Promenade Portland
299 Belle Meade Apartments 2930 Fountainview Drive Houston
300 Riverview Plaza II 3200 Cobb Parkway Atlanta
301 Westmoreland Warehouse 4803 - 4809 S. Westmoreland Road Dallas
<CAPTION>
Original
Term to
Original 6/1/98 Stated
Zip Principal Cut-off Date Monthly Mortgage Maturity
# County State Code Balance Balance P&I Rate (months)(7)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
232 Volusia FL 32119 $ 2,000,000 $ 2,000,000 $ 15,446 6.950% 120
234 Jackson MO 64055 $ 2,000,000 $ 1,997,044 $ 13,199 6.920% 120
235 Volusia FL 32720 $ 2,000,000 $ 1,995,626 $ 13,052 6.810% 120
236 Johnson TX 76009 $ 2,000,000 $ 1,995,037 $ 19,895 8.670% 180
237 Mecklenburg NC 28226 $ 2,000,000 $ 1,993,967 $ 14,793 7.510% 120
238 Denton TX 76201 $ 2,000,000 $ 1,993,907 $ 14,728 7.460% 180
239 Pierce WA 98467 $ 2,000,000 $ 1,993,797 $ 14,611 7.370% 120
240 Dallas TX 75231 $ 2,000,000 $ 1,993,270 $ 13,199 6.920% 84
241 Utah UT 84604 $ 2,000,000 $ 1,990,665 $ 14,676 7.420% 120
243 Dallas TX 75220 $ 2,000,000 $ 1,987,627 $ 17,876 6.910% 120
244 Houston AL 36302 $ 1,990,000 $ 1,983,803 $ 14,512 7.350% 120
245 King WA 98032 $ 1,950,000 $ 1,946,172 $ 14,793 7.800% 120
246 Madison ID 83440 $ 1,950,000 $ 1,940,855 $ 14,271 7.390% 120
249 Alameda CA 94541 $ 1,900,000 $ 1,898,305 $ 14,276 7.690% 120
250 Bexar TX 78240 $ 1,900,000 $ 1,897,403 $ 12,948 7.240% 120
251 Skagit WA 98274 $ 1,900,000 $ 1,891,033 $ 13,856 7.350% 120
252 Palm Beach FL 33410 $ 1,825,000 $ 1,823,190 $ 13,156 7.220% 120
254 DeKalb GA 30084 $ 1,800,000 $ 1,797,991 $ 13,454 7.630% 120
257 Los Angeles CA 91411 $ 1,800,000 $ 1,794,060 $ 12,000 7.020% 120
259 Jefferson CO 80228 $ 1,750,000 $ 1,741,516 $ 12,570 7.180% 180
260 Hennepin MN 55369 $ 1,710,000 $ 1,707,952 $ 12,262 7.760% 180
261 Oakland MI 48328 $ 1,700,000 $ 1,697,606 $ 11,447 7.120% 120
262 Suffolk NY 11729 $ 1,700,000 $ 1,685,255 $ 15,788 7.530% 180
263 Camden NJ 08003 $ 1,650,000 $ 1,648,718 $ 11,739 7.360% 120
266 Hinds MS 39209 $ 1,600,000 $ 1,597,515 $ 13,066 7.680% 120
267 Brevard FL 32935 $ 1,600,000 $ 1,597,369 $ 10,645 7.000% 120
269 Jackson MO 64131 $ 1,550,000 $ 1,550,000 $ 10,385 7.070% 120
270 Duval FL 32210 $ 1,540,000 $ 1,540,000 $ 10,184 6.940% 120
272 Wayne MI 48185 $ 1,500,000 $ 1,498,503 $ 10,784 7.190% 120
275 Lubbock TX 79415 $ 1,425,000 $ 1,419,683 $ 9,740 7.270% 120
278 Essex MA 01810 $ 1,400,000 $ 1,400,000 $ 10,092 7.220% 120
279 Duval FL 32210 $ 1,400,000 $ 1,400,000 $ 9,258 6.940% 120
280 Bexar TX 78228 $ 1,400,000 $ 1,399,208 $ 9,617 7.320% 120
282 Orange CA 92804 $ 1,400,000 $ 1,395,627 $ 9,598 7.300% 120
284 Dallas TX 75061 $ 1,317,500 $ 1,315,730 $ 9,041 7.310% 120
285 Dallas TX 75238 $ 1,270,000 $ 1,267,850 $ 9,107 7.760% 120
286 Clay MN 56560 $ 1,240,000 $ 1,234,417 $ 9,824 7.550% 120
289 Los Angeles CA 90020 $ 1,170,000 $ 1,170,000 $ 7,879 7.120% 120
291 Pierce WA 98499 $ 1,100,000 $ 1,100,000 $ 8,115 7.480% 120
292 Spokane WA 99027 $ 1,100,000 $ 1,100,000 $ 7,923 7.210% 120
293 Ramsey MN 55112 $ 1,100,000 $ 1,097,522 $ 7,824 7.070% 120
294 Harris TX 77521 $ 1,100,000 $ 1,095,913 $ 7,534 7.290% 120
295 Jackson MS 39553 $ 1,025,000 $ 1,024,376 $ 6,881 7.090% 120
296 Spokane WA 99206 $ 1,000,000 $ 1,000,000 $ 7,202 7.210% 120
297 Lubbock TX 79414 $ 1,000,000 $ 993,623 $ 8,331 7.300% 216
298 Cumberland ME 04101 $ 960,000 $ 957,861 $ 6,865 7.130% 120
299 Harris TX 75231 $ 880,000 $ 878,803 $ 6,009 7.260% 120
300 Cobb GA 30339 $ 785,000 $ 783,232 $ 5,583 7.070% 120
301 Dallas TX 75237 $ 575,000 $ 573,042 $ 4,639 7.520% 120
Total/Weighted Average: $ 1,567,791,349 $ 1,564,253,441 $ 100,755 7.210% 135
=============================================================================
<CAPTION>
Remaining
Term to Original Remaining
Stated Amortization Amortization
Maturity Maturity Term Term Mortgage Column Third
# (months)(7) Date (months) (months) Loan Seller Party Originator ARD (8)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
232 120 6/1/08 240 240 Column N/A
234 118 4/1/08 360 358 Column N/A
235 117 3/1/08 360 357 Column N/A
236 179 5/1/13 180 179 Column N/A
237 117 3/1/08 300 297 Column N/A
238 177 3/1/13 300 297 Column N/A
239 117 3/1/08 300 297 Column Union Capital
240 80 2/1/05 360 356 Column N/A
241 116 2/1/08 300 296 Column N/A
243 118 4/1/08 180 178 Column N/A
244 117 3/1/08 300 297 Column Union Capital
245 118 4/1/08 300 298 Column Union Capital
246 116 2/1/08 300 296 Column ITLA
249 119 5/1/23 300 299 Column N/A 5/1/08
250 118 4/1/08 360 358 Column N/A
251 116 2/1/08 300 296 Column Union Capital
252 119 5/1/08 300 299 Column N/A
254 119 5/1/08 300 299 Column Union Capital
257 116 1/14/08 360 356 Column ARCS
259 176 2/1/13 300 296 Column N/A
260 178 4/1/13 360 358 Column N/A
261 118 4/1/08 360 358 Column N/A
262 177 3/1/13 180 177 Column N/A
263 119 5/1/08 324 323 Column N/A
266 119 5/1/08 240 239 Column N/A
267 118 4/1/08 360 358 Column Union Capital
269 120 6/1/08 360 360 Column N/A
270 120 6/1/08 360 360 Column N/A
272 119 5/1/08 300 299 Column N/A
275 115 12/23/07 360 355 Column ARCS
278 120 6/1/08 300 300 Column N/A
279 120 6/1/08 360 360 Column N/A
280 119 5/1/08 360 359 Column N/A
282 116 2/1/08 360 356 Column N/A
284 118 4/1/08 360 358 Column N/A
285 117 3/1/08 360 357 Column N/A
286 117 3/1/08 252 249 Column N/A
289 120 6/1/08 360 360 Column N/A
291 120 6/1/08 300 300 Column Union Capital
292 120 6/1/08 300 300 Column Union Capital
293 118 4/1/08 300 298 Column N/A
294 115 1/1/08 360 355 Column N/A
295 119 5/1/08 360 359 Column N/A
296 120 6/1/08 300 300 Column Union Capital
297 213 3/1/16 216 213 Column N/A
298 118 4/1/08 300 298 Column N/A
299 118 4/1/08 360 358 Column N/A
300 118 4/1/08 300 298 Column N/A
301 118 4/1/08 240 238 Column N/A
Total/Weighted Average: 133 11/29/18 337 334
===================================================
<CAPTION>
Defeasance Fee Simple/ Interest Calculation
# Option (9) Leasehold (30/360 / Actual/360)
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
232 Yes Fee Actual/360
234 Yes Fee Actual/360
235 Yes Fee Actual/360
236 Yes Fee Actual/360
237 Yes Fee Actual/360
238 Yes Fee Actual/360
239 Yes Fee Actual/360
240 Yes Fee Actual/360
241 Yes Fee Actual/360
243 No Fee Actual/360
244 Yes Fee Actual/360
245 Yes Fee Actual/360
246 No Fee Actual/360
249 Yes Fee Actual/360
250 Yes Fee Actual/360
251 Yes Fee Actual/360
252 Yes Fee Actual/360
254 Yes Fee 30/360
257 Yes Fee Actual/360
259 Yes Fee Actual/360
260 Yes Fee Actual/360
261 Yes Fee Actual/360
262 Yes Fee Actual/360
263 Yes Fee Actual/360
266 Yes Fee Actual/360
267 Yes Fee 30/360
269 Yes Fee Actual/360
270 Both Fee Actual/360
272 Yes Fee Actual/360
275 Yes Fee Actual/360
278 Yes Fee Actual/360
279 Both Fee Actual/360
280 Yes Fee Actual/360
282 Yes Fee Actual/360
284 Yes Fee Actual/360
285 Yes Fee Actual/360
286 Yes Fee Actual/360
289 Yes Fee Actual/360
291 Yes Fee Actual/360
292 Yes Fee Actual/360
293 Yes Fee Actual/360
294 Yes Fee Actual/360
295 Yes Fee Actual/360
296 Yes Fee Actual/360
297 Yes Fee Actual/360
298 Yes Fee Actual/360
299 Yes Fee Actual/360
300 Yes Fee Actual/360
301 Yes Fee Actual/360
</TABLE>
(1A) The Mortgage Loans secured by Raritan Plaza I and Raritan Center Industrial
Portfolio, respectively, are cross-collateralized and cross-defaulted.
(1B) The Mortgage Loans secured by Holiday Inn - Jacksonville Airport and
Courtyard by Marriott, respectively, are cross-collateralized and
cross-defaulted.
(1C) The Mortgage Loans secured by Courtyard by Marriott - Pensacola, Courtyard
by Marriott - Tuscaloosa, Fairfield Inn - Pensacola, Fairfield Inn -
Birmingham and Fairfield Inn - Tuscaloosa, respectively, are
cross-collateralized and cross-defaulted.
(1D) The Mortgage Loans secured by Royal Plaza Hotel - Marlborough and Royal
Plaza Hotel- Fitchburg, respectively, are cross-collateralized and
cross-defaulted.
(1F) The Mortgage Loans secured by Flower Hill Professional Center and Flower
Hill McDonald's, respectively, are cross-collateralized and
cross-defaulted.
(1G) The Mortgage Loans secured by Pellcare Nursing Home - Winston-Salem and
Pellcare Nursing Home - Hickory, respectively, are cross-collateralized and
cross-defaulted.
(1H) The Mortgage Loans secured by Wyoming-Enzie Properties and Mesa Properties,
respectively, are cross-collateralized and cross-defaulted.
(1I) The Mortgage Loans secured by Tivoli Condominiums, Cross Creek Apartments
and Tamara Hills Townhomes, respectively, are cross-collateralized and
cross-defaulted.
(1J) The Mortgage Loans secured by Bridge Street Lodge and P&R Building,
respectively, are cross-collateralized and cross-defaulted.
(1K) The Mortgage Loans secured by Cedarfield Plaza and Greece Mini Storage,
respectively, are cross-collateralized and cross-defaulted.
(2) Summer Cove Apartments has an interest only period of 24 months and will
begin to amortize over a 336 month term.
(3) Ultra Plaza Shopping Center has an interest only period of 24 months and
will begin to amortize over a 336 month term.
(7) In the case of the Anticipated Repayment Date loans, the Anticipated
Repayment Date is assumed to be the maturity date for the purposes of the
indicated column.
(8) Anticipated Repayment Date.
<PAGE>
- --------------------------------------------------------------------------------
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 1998-CG1
(9) "Yes" means that defeasance is permitted (as otherwise described in this
Prospectus Supplement) notwithstanding the Lockout Period. "Both" means
that the Mortgage Loan provides for a Lockout Period followed by a period
during which defeasance is permitted and, for purposes of the "Prepayment
Provision" set forth in this table and described in this Prospectus
Supplement, the two periods are together presented as a "Lockout Period"
during which defeasance is permitted (as otherwise described in this
Prospectus Supplement).
<PAGE>
EXHIBIT B-1B
SCHEDULE OF GECA MORTGAGE LOANS
B-1B-1
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 1998-CG1
<TABLE>
<CAPTION>
# Property Name Address
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 The Rivergate Apartments 401 E. 34th Street
4 Resurgens Plaza 945 East Paces Ferry Road
5 The Camargue 303 E. 83rd Street
6 Casa Arroyo Apartments 405 Rancho Arroyo Parkway
7 Ballena Village Apartments 1375 Ballena Boulevard
10 Magnolia Lake Apartments 2401 Windy Hill Road
11 Park Terrace 7400 Sugar Bend Drive
12 Autumn Chase Apartments 725 Bode Circle
29 Hannaford Plaza AKA Rotterdam Mall 1400 Altomount Ave.
30 Highland Pavilion Shopping Center (1E) 6700 Middle Fiskville Rd.
31 Highland Pavilion Cinema (1E) 6700 Middle Fiskville Rd.
32 Plumtree Apartments 229 Parkwood Drive
36 Plaza Mobile Village 3101 South Fairview
38 Golden Triangle Shopping Center West side of Lititz Pike at the intersection of Oreg
39 Jasper Mall Shopping Center 300 U. S. Highway # 78
40 Lincoln Village Shopping Center 6406 North Interstate Highway 35
44 Forest Glen Apartments 493 Beaumont Glen
45 Legacy Drive Village Shopping Center 7000-7224 Independence Parkway
46 Friendly Village MHC 27696 Oregon Road
48 Days Inn - Inner Harbor 100 Hopkins Place
49 Courtyard by Marriott Richmond 3150 Garrity Way
50 Barnes Crossing 4300 Mall Drive
53 Holiday Inn & Suites 707 Route 46 East
54 Aspen Ridge Apartments 13719 SE 18th Street
60 Ideal Professional Park 2333 Morris Avenue
61 Cypress Pointe Apartments 4861 College Acres Drive
62 The Shops at Lionville Station 501 East Uwchlan Avenue
66 Bancroft Hall Apartments 1870 Enterprise Court
67 Padonia Commerce Building 9603 Deereco Road
68 Anaheim Shores Estates 1919 Coronet Avenue
69 Tower Square Shopping Center 566-582 Prairie Center Drive
71 Elmonica Court Apartments 1120 SW Kiley Way
72 Chesterfield Commons 34720-35000 23 Mile Road
73 Plum Tree Apartments 1097 Maywood Court
74 Meadow Central Market 10455 North Central Expressway
76 Las Brisas Apartments 150 - 210 Chambers Street
77 Freedom Village Shopping Center SWC Liberty Rd. & Georgetown Blvd.
78 Waldan Pond & Waldan Chase Apts 450 Waldan Circle & 150 Dupree Road
79 Aspen Park Apartments 5152 Mack Road
81 Sherwood Knoll Comfort Inn 500 Centerville Road
82 Bridgepoint Apartments 2200 Brown Street
83 Holiday Inn Center City 230 North College Street
84 Rainbow Design Center 1200 to 1250 South Rainbow Boulevard
87 Blue Ash Hotel & Conference Center 5901 Pfeiffer Road
89 Sinagua Plaza 320 N. Highway 89A
90 Holiday Plaza 2256 N. Haverhill Road
98 Cherokee Shopping Center 430-580 Cherokee Lane
102 South Pointe Apartments 6220 Murray Drive
105 Mervyn's Plaza 3333 184th Street SW
114 Canyon Ridge MHP 5150 Airport Road
115 Westlake Crossing Shopping Center 10301 Westlake Drive
116 Days Hotel Timonium 9615 & 9635 Deereco Road
117 Heritage Square Apartments 9111 White Bluff Road
119 Oxford Square 246 SR-436
120 Spring Villas 8768 Jamacha Road
126 Homewood Village Shopping Center 2415 Jefferson Road
127 Commonwealth Avenue Apartments 1114-1132 Commonwealth Avenue
129 Stein Mart Plaza 300 Grapevine Highway
132 Brookside Apartments 6131 W. Thomas Road
133 Vinyard Gardens 160 Dalewood Dr
138 Longbranch Apartments 2175 62nd Street North
139 The Market at Merrill Shopping Center 1506 Merrill Drive
142 Pass Christian Village US Hwy 90
145 Sun Plaza Shopping Center 2549-2569 South King Road
148 Mt. Dora Marketplace SWC US Highway 441-and SR-44B
149 Aspen Village Apartments 3510 Kebil Drive
154 The Park Shopping Center 2141 Loch Rane Blvd
<CAPTION>
Original 6/1/98
Zip Principal Cut-off Date
# City County State Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 New York New York NY 10016 $ 95,000,000 $ 94,602,208
4 Atlanta Fulton GA 30303 $ 33,000,000 $ 32,859,589
5 New York New York NY 10028 $ 30,000,000 $ 29,900,164
6 Fremont Alameda CA 94536 $ 24,000,000 $ 23,984,720
7 Alameda Alameda CA 94501 $ 22,000,000 $ 21,954,541
10 Atlanta Cobb GA 30067 $ 20,500,000 $ 20,500,000
11 Orlando Orange FL 32819 $ 20,000,000 $ 19,966,398
12 Hoffman Estates Cook IL 60194 $ 19,500,000 $ 19,472,137
29 Rotterdam Schenectady NY 12303 $ 13,000,000 $ 12,993,015
30 Austin Travis TX 78752 $ 6,332,000 $ 6,332,000
31 Austin Travis TX 78752 $ 6,250,000 $ 6,250,000
32 Lansing Eaton MI 48917 $ 12,500,000 $ 12,500,000
36 Santa Ana Orange CA 92704 $ 11,350,000 $ 11,308,631
38 Manheim Township Lancaster PA 17601 $ 10,800,000 $ 10,777,077
39 Jasper Walker AL 35501 $ 10,550,000 $ 10,535,181
40 Austin Travis TX 78752 $ 10,500,000 $ 10,456,137
44 Escondido San Diego CA 92026 $ 9,750,000 $ 9,743,548
45 Plano Collin TX 75025 $ 9,750,000 $ 9,711,786
46 Perrysburg Wood OH 46551 $ 9,500,000 $ 9,494,274
48 Baltimore Baltimore MD 21201 $ 9,400,000 $ 9,329,684
49 Richmond Contra Costa CA 94806 $ 8,900,000 $ 8,891,690
50 Tupelo Lee MS 38801 $ 8,500,000 $ 8,500,000
53 Parsippany-Troy Hills Morris NJ 7054 $ 8,300,000 $ 8,300,000
54 Vancouver Clark WA 98684 $ 8,101,000 $ 8,074,631
60 Union Union NJ 7083 $ 7,200,000 $ 7,196,080
61 Wilmington New Hanover NC 28403 $ 7,200,000 $ 7,189,837
62 Uwchlan Chester PA 19341 $ 7,000,000 $ 6,995,755
66 Virginia Beach N/A VA 23454 $ 6,960,000 $ 6,953,647
67 Timonium Baltimore MD 21093 $ 7,000,000 $ 6,951,446
68 Anaheim Orange CA 92801 $ 6,950,000 $ 6,945,641
69 Eden Prairie Hennepin MN 55344 $ 6,950,000 $ 6,939,016
71 Beaverton Washington OR 97006 $ 6,800,000 $ 6,795,592
72 Chesterfield Township Macomb MI 48047 $ 6,800,000 $ 6,790,307
73 Martinez Contra Costa CA 94553 $ 6,700,000 $ 6,695,709
74 Dallas Dallas TX 75231 $ 6,600,000 $ 6,585,700
76 El Cajon San Diego CA 92020 $ 6,570,000 $ 6,564,310
77 Eldersburg Caroll MD 21784 $ 6,500,000 $ 6,495,849
78 Acworth & Woodstock Cherokee GA 30188 $ 6,450,000 $ 6,446,089
79 Sacramento Sacramento CA 94203 $ 6,220,000 $ 6,192,234
81 Lancaster Lancaster PA 17601 $ 6,022,525 $ 6,017,066
82 Waxahachie Ellis TX 75165 $ 6,000,000 $ 5,996,406
83 Charlotte Mecklenburg NC 28202 $ 6,000,000 $ 5,994,245
84 Las Vegas Clark NV 89102 $ 5,865,000 $ 5,846,572
87 Blue Ash Hamilton OH 45242 $ 5,750,000 $ 5,736,510
89 Sedona Coconino AZ 86336 $ 5,650,000 $ 5,646,823
90 West Palm Beach Palm Beach FL 33417 $ 5,600,000 $ 5,596,800
98 Lodi San Joaquin CA 95240 $ 5,150,000 $ 5,139,049
102 Hanahan Berkeley SC 29406 $ 4,920,000 $ 4,917,198
105 Lynnwood Snohomish WA 98037 $ 4,900,000 $ 4,883,862
114 Colorado Springs El Paso CO 80916 $ 4,600,000 $ 4,582,726
115 Bethesda Montgomery MD 20817 $ 4,500,000 $ 4,482,137
116 Timonium Baltimore MD 21030 $ 4,450,000 $ 4,416,712
117 Savannah Chatham GA 31406 $ 4,400,000 $ 4,397,549
119 Casselberry Seminole FL 32707 $ 4,400,000 $ 4,390,837
120 Spring Valley San Diego CA 91977 $ 4,360,000 $ 4,356,224
126 Athens Clarke GA 30607 $ 4,200,000 $ 4,187,035
127 Allston Suffolk MA 2134 $ 4,200,000 $ 4,179,055
129 Hurst Tarrant TX 76054 $ 4,160,000 $ 4,157,391
132 Phoenix Maricopa AZ 85033 $ 4,080,000 $ 4,061,787
133 Winston Salem Forsyth NC 27104 $ 4,020,470 $ 4,017,872
138 Clearwater Pinellas FL 34608 $ 4,000,000 $ 3,993,973
139 Little Rock Pulaski AR 72211 $ 3,950,000 $ 3,950,000
142 Pass Christian Harrison MS 39571 $ 3,850,000 $ 3,828,469
145 San Jose Santa Clara CA 95122 $ 3,700,000 $ 3,678,412
148 Mt. Dora Lake FL 32757 $ 3,600,000 $ 3,592,405
149 Indianapolis Marion IN 46224 $ 3,613,000 $ 3,590,501
154 Orange Park Clay FL 32073 $ 3,500,000 $ 3,497,949
<CAPTION>
Original Remaining
Term to Term to Original Remaining
Stated Stated Amortization Amortization
Monthly Mortgage Maturity Maturity Maturity Term Term Mortgage
# P&I Rate (months)(7) (months)(7) Date (months) (months) Loan Seller
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 $ 628,851 6.950% 120 115 1/1/28 360 355 GE Capital Access
4 $ 211,848 6.650% 120 115 1/1/28 360 355 GE Capital Access
5 $ 212,225 7.010% 300 297 3/1/23 300 297 GE Capital Access
6 $ 158,707 6.940% 120 119 5/1/28 360 359 GE Capital Access
7 $ 146,810 7.030% 120 117 3/1/28 360 357 GE Capital Access
10 $ 134,465 6.860% 120 120 6/1/28 360 360 GE Capital Access
11 $ 131,586 6.890% 120 118 4/1/28 360 358 GE Capital Access
12 $ 130,521 7.060% 180 178 4/1/28 360 358 GE Capital Access
29 $ 90,720 7.480% 120 119 5/1/28 360 359 GE Capital Access
30 $ 43,540 7.330% 180 180 6/1/28 360 360 GE Capital Access
31 $ 42,976 7.330% 180 180 6/1/28 360 360 GE Capital Access
32 $ 82,827 6.960% 120 120 6/1/28 360 360 GE Capital Access
36 $ 78,433 7.380% 84 79 1/1/28 360 355 GE Capital Access
38 $ 79,040 7.390% 120 118 4/1/23 300 298 GE Capital Access
39 $ 71,113 7.130% 120 118 4/1/28 360 358 GE Capital Access
40 $ 72,843 7.420% 120 114 12/1/27 360 354 GE Capital Access
44 $ 63,628 6.810% 120 119 5/1/28 360 359 GE Capital Access
45 $ 65,129 7.040% 120 115 1/1/28 360 355 GE Capital Access
46 $ 63,971 7.120% 120 119 5/1/28 360 359 GE Capital Access
48 $ 66,617 7.030% 120 114 12/1/22 300 294 GE Capital Access
49 $ 65,712 7.490% 120 119 5/1/08 300 299 GE Capital Access
50 $ 60,402 7.060% 120 120 6/1/23 300 300 GE Capital Access
53 $ 60,636 7.370% 120 120 6/1/23 300 300 GE Capital Access
54 $ 54,387 7.090% 120 116 2/1/28 360 356 GE Capital Access
60 $ 50,048 7.440% 120 119 5/1/28 360 359 GE Capital Access
61 $ 48,435 7.110% 120 118 4/1/28 360 358 GE Capital Access
62 $ 47,042 7.100% 120 119 5/1/28 360 359 GE Capital Access
66 $ 51,842 7.590% 120 119 5/1/23 300 299 GE Capital Access
67 $ 51,775 7.510% 300 294 12/1/22 300 294 GE Capital Access
68 $ 46,192 6.990% 120 119 5/1/08 360 359 GE Capital Access
69 $ 47,176 7.200% 120 118 4/1/28 360 358 GE Capital Access
71 $ 44,694 6.880% 120 119 5/1/28 360 359 GE Capital Access
72 $ 45,561 7.070% 120 118 4/1/28 360 358 GE Capital Access
73 $ 44,216 6.920% 120 119 5/1/28 360 359 GE Capital Access
74 $ 47,833 7.280% 300 298 4/1/23 300 298 GE Capital Access
76 $ 42,482 6.720% 120 119 5/1/28 360 359 GE Capital Access
77 $ 42,940 6.930% 60 59 5/1/03 360 359 GE Capital Access
78 $ 43,346 7.100% 144 143 5/1/28 360 359 GE Capital Access
79 $ 41,926 7.130% 120 114 12/1/27 360 354 GE Capital Access
81 $ 44,977 7.620% 180 179 5/1/23 300 299 GE Capital Access
82 $ 40,484 7.140% 120 119 5/1/28 360 359 GE Capital Access
83 $ 43,833 7.370% 120 119 5/1/23 300 299 GE Capital Access
84 $ 40,089 7.270% 120 116 2/1/28 360 356 GE Capital Access
87 $ 41,895 7.340% 120 118 4/1/23 300 298 GE Capital Access
89 $ 38,888 7.340% 120 119 5/1/28 360 359 GE Capital Access
90 $ 38,354 7.290% 120 119 5/1/28 360 359 GE Capital Access
98 $ 37,657 7.380% 300 298 4/1/23 300 298 GE Capital Access
102 $ 33,730 7.300% 120 119 5/1/28 360 359 GE Capital Access
105 $ 32,699 7.030% 120 116 2/1/28 360 356 GE Capital Access
114 $ 31,349 7.240% 120 115 1/1/28 360 355 GE Capital Access
115 $ 29,878 6.980% 180 175 1/1/28 360 355 GE Capital Access
116 $ 31,537 7.030% 120 114 12/1/22 300 294 GE Capital Access
117 $ 30,375 7.370% 300 299 5/1/23 360 359 GE Capital Access
119 $ 29,273 7.000% 120 117 3/1/28 360 357 GE Capital Access
120 $ 28,192 6.720% 120 119 5/1/28 360 359 GE Capital Access
126 $ 28,965 7.360% 120 116 2/1/28 360 356 GE Capital Access
127 $ 29,685 7.000% 120 116 2/1/23 300 296 GE Capital Access
129 $ 27,649 6.990% 120 119 5/1/28 360 359 GE Capital Access
132 $ 27,501 7.130% 120 114 12/1/27 360 354 GE Capital Access
133 $ 26,452 6.890% 120 119 5/1/28 360 359 GE Capital Access
138 $ 26,184 6.840% 120 118 4/1/28 360 358 GE Capital Access
139 $ 29,242 7.520% 240 240 6/1/23 300 300 GE Capital Access
142 $ 28,376 7.470% 120 115 1/1/23 300 295 GE Capital Access
145 $ 34,363 7.530% 180 178 4/1/13 180 178 GE Capital Access
148 $ 23,830 6.950% 120 117 3/1/28 360 357 GE Capital Access
149 $ 26,461 7.980% 120 111 9/1/27 360 351 GE Capital Access
154 $ 23,781 7.210% 120 119 5/1/28 360 359 GE Capital Access
<CAPTION>
Column Third Defeasance Fee Simple/ Interest Calculation
# Party Originator ARD (8) Option (9) Leasehold (30/360 / Actual/360)
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 N/A 1/1/08 Yes Fee 30/360
4 N/A 1/1/08 Yes Fee/Leasehold Actual/360
5 N/A Yes Fee Actual/360
6 N/A 5/1/08 No Fee Actual/360
7 N/A 3/1/08 Yes Fee Actual/360
10 N/A 6/1/08 Yes Fee Actual/360
11 N/A 4/1/08 Yes Fee 30/360
12 N/A 4/1/13 Yes Fee Actual/360
29 N/A 5/1/08 Yes Fee Actual/360
30 N/A 6/1/13 No Fee Actual/360
31 N/A 6/1/13 No Fee Actual/360
32 N/A 6/1/08 Yes Fee Actual/360
36 N/A 1/1/05 No Fee Actual/360
38 N/A 4/1/08 Yes Fee Actual/360
39 N/A 4/1/08 No Fee Actual/360
40 N/A 12/1/07 No Leasehold Actual/360
44 N/A 5/1/08 Yes Fee Actual/360
45 N/A 1/1/08 No Fee Actual/360
46 N/A 5/1/08 Yes Fee Actual/360
48 N/A 12/1/07 Yes Fee 30/360
49 N/A Yes Fee Actual/360
50 N/A 6/1/08 No Fee Actual/360
53 N/A 6/1/08 Yes Fee Actual/360
54 N/A 2/1/08 No Fee Actual/360
60 N/A 5/1/08 Yes Fee Actual/360
61 N/A 4/1/08 No Fee Actual/360
62 N/A 5/1/08 No Fee Actual/360
66 N/A 5/1/08 Yes Fee Actual/360
67 N/A Yes Fee 30/360
68 N/A No Leasehold Actual/360
69 N/A 4/1/08 No Fee 30/360
71 N/A 5/1/08 Yes Fee Actual/360
72 N/A 4/1/08 Yes Fee Actual/360
73 N/A 5/1/08 Yes Fee Actual/360
74 N/A No Fee Actual/360
76 N/A 5/1/08 No Fee 30/360
77 N/A No Fee Actual/360
78 N/A 5/1/10 No Fee Actual/360
79 N/A 12/1/07 No Fee Actual/360
81 N/A 5/1/13 No Fee Actual/360
82 N/A 5/1/08 No Fee Actual/360
83 N/A 5/1/08 No Leasehold Actual/360
84 N/A 2/1/08 No Fee Actual/360
87 N/A 4/1/08 Yes Fee 30/360
89 N/A 5/1/08 No Fee Actual/360
90 N/A 5/1/08 No Fee Actual/360
98 N/A No Fee Actual/360
102 N/A 5/1/08 No Fee Actual/360
105 N/A 2/1/08 No Fee Actual/360
114 N/A 1/1/08 No Fee Actual/360
115 N/A 1/1/13 No Fee Actual/360
116 N/A 12/1/07 Yes Fee 30/360
117 N/A Yes Fee Actual/360
119 N/A 3/1/08 No Fee Actual/360
120 N/A 5/1/08 No Fee 30/360
126 N/A 2/1/08 No Fee Actual/360
127 N/A 2/1/08 Yes Fee Actual/360
129 N/A 5/1/08 No Fee Actual/360
132 N/A 12/1/07 No Fee Actual/360
133 N/A 5/1/08 No Fee Actual/360
138 N/A 4/1/08 No Fee Actual/360
139 N/A 6/1/18 No Fee Actual/360
142 N/A 1/1/08 No Fee Actual/360
145 N/A No Fee Actual/360
148 N/A 3/1/08 No Fee Actual/360
149 N/A 9/1/07 No Fee 30/360
154 N/A 5/1/08 No Fee Actual/360
</TABLE>
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 1998-CG1
<TABLE>
<CAPTION>
# Property Name Address
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
161 University Shoppes 4938-4998 North University Drive
163 Park 219 Business Park 2900 SW 219th Avenue
168 Perry Hall Mini-Storage 7750 Rossville Boulevard
176 Valdosta Storage Rollup 412 Connell Road & 1416 Baytree Road
177 All Aboard Mini-Storage 2801 Thornton Avenue
180 Seaport Villas 180 Canyon Drive
182 Drug Emporium Shopping Center 9912-9952 Katella/11101-3 Brookhurst
184 Red Lion Apartments 6100 Waters Avenue
189 Pavilion in the Park Shopping Center 8201 Cantrell Rd.
192 509-511 Amsterdam Avenue 509-511 Amsterdam Avenue
199 Sandalwood Center 2400 S. Jones Boulevard
200 Encino Village Center 16650-16664 Ventura Blvd.
201 Willamette Terrace 1709 S.W. Blankenship Road
203 79 Worth Street 79 Worth Street
205 Plantation Village Shopping Center 401 This Way Street
208 Orchard Supply 360 Cherokee Lane
210 Governor's Terrace 1401 P Street
211 Esplanade Mini-Storage 2180 Craig Drive
213 Mabelvale Plaza Shopping Center 10101 Mabelvale Plaza Drive
218 Viewmont Estates Mobile Home Park 1120 South 25th Street
219 1731, 1741 and 1751 Washington Street 1731, 1741 and 1751 Washington Street
224 White Pines Plaza 100 East Main Street
225 North Shore Estates 3777 Addy Street
231 Robarts Mobile Home Park 2000 Maine St.
233 Planters Trace Apartments 2222 Ashley River Road
242 Boulevard Shoppes II 5200-5400 North University Drive
247 Ridgewood Apartments 2190 Higdon Ferry Road
248 Bella Vista Terrace 500-510 E. Los Angeles Drive and 415 E. Indian
253 Camelot Apartments 1 Guenevere Court
255 Gordon Street Apartments 91-99 Gordon Street
256 Northgate Apartments 5801-5939 North Fessenden Street
258 Morningstar Mini-Storage 920 West Chatham Street
264 Port Orchard Mini Storage 3282 SE Lund Avenue
265 Sequoia Grove Apartments 13001 SE 28th Place
268 Rancho San Diego Town & Country 12098 Fury Lane
271 Oakhill Apartments 825 Beaty Street
273 Autumn Ridge Apartments 90 Gerrish Avenue
274 701 Franklin Center 701 State of Franklin Road
276 Meriden East Apartments 657 East Main Street
277 Hyde Park Mobile Estates 2934 W. 1st Street
281 Hood Chalet Mobile Estates 17655 S. Bluff Road
283 Deer Creek Apartments 950 North Allumbaugh Street
287 Park Place Center State of Franklin Road at Sells Avenue
288 International Self Storage 6119 Oakdale Road
290 Loc-'N-Stor Self-Storage 1020 Lakeville Street
Total/Weighted Average:
<CAPTION>
Original 6/1/98
Zip Principal Cut-off Date
# City County State Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
161 Lauderhill Broward FL 33321 $ 3,350,000 $ 3,333,091
163 Hillsboro Washington OR 97123 $ 3,300,000 $ 3,289,375
168 Baltimore Baltimore MD 21236 $ 3,175,000 $ 3,138,857
176 Valdosta Lowndes GA 31602 $ 3,000,000 $ 2,997,249
177 Burbank Los Angeles CA 91504 $ 3,000,000 $ 2,996,503
180 Oceanside San Diego CA 92054 $ 2,950,000 $ 2,948,178
182 Garden Grove Orange CA 92641 $ 2,900,000 $ 2,898,252
184 Savannah Chatham GA 31406 $ 2,880,000 $ 2,877,238
189 Little Rock Pulaski AR 72227 $ 2,775,000 $ 2,775,000
192 New York Manhattan NY 10024 $ 2,750,000 $ 2,748,244
199 Las Vegas Clark NV 89102 $ 2,600,000 $ 2,594,767
200 Encino Los Angeles CA 91436 $ 2,600,000 $ 2,585,729
201 West Linn Clackamas OR 97203 $ 2,560,000 $ 2,551,182
203 New York New York NY 10013 $ 2,550,000 $ 2,544,466
205 Lake Jackson Brazoria TX 77566 $ 2,550,000 $ 2,536,796
208 Lodi San Joaquin CA 95240 $ 2,500,000 $ 2,492,636
210 Sacramento Sacramento CA 95814 $ 2,466,000 $ 2,464,481
211 Oxnard Ventura CA 93003 $ 2,450,000 $ 2,442,371
213 Little Rock Pulaski AR 72209 $ 2,400,000 $ 2,400,000
218 Mt. Vernon Skagit WA 98273 $ 2,250,000 $ 2,248,614
219 Braintree Norfolk MA 2184 $ 2,200,000 $ 2,200,000
224 Cherryville Gaston NC 28021 $ 2,123,000 $ 2,115,925
225 Washougal Clark WA 98671 $ 2,100,000 $ 2,098,711
231 Frostproof Polk FL 33843 $ 2,050,000 $ 2,046,984
233 Charleston Charleston SC 29414 $ 2,000,000 $ 1,998,661
242 Lauderhill Broward FL 33351 $ 2,000,000 $ 1,989,905
247 Hot Springs Garland AR 71913 $ 1,900,000 $ 1,900,000
248 Vista San Diego CA 92084 $ 1,900,000 $ 1,898,826
253 Newport News Newport News VA 23602 $ 1,810,000 $ 1,808,982
255 Allston Suffolk MA 2134 $ 1,800,000 $ 1,797,346
256 Portland Washington OR 97203 $ 1,800,000 $ 1,795,862
258 Cary Wake NC 27511 $ 1,750,000 $ 1,743,781
264 Port Orchard Kitsap WA 98366 $ 1,650,000 $ 1,648,445
265 Bellevue King WA 98005 $ 1,630,000 $ 1,626,426
268 Rancho San Diego San Diego CA 92019 $ 1,600,000 $ 1,594,320
271 Davidson Mecklenburg NC 28036 $ 1,520,000 $ 1,520,000
273 East Haven New Haven CT 6512 $ 1,500,000 $ 1,491,294
274 Johnson City Washington TN 37604 $ 1,462,500 $ 1,454,307
276 Meriden New Haven CT 6450 $ 1,425,000 $ 1,416,840
277 Santa Ana Orange CA 92702 $ 1,472,000 $ 1,403,387
281 Sandy Clackamas OR 97055 $ 1,400,000 $ 1,398,630
283 Boise Ada ID 83704 $ 1,330,000 $ 1,329,283
287 Johnson City Washington TN 37604 $ 1,232,000 $ 1,225,099
288 Riverbank Stanislaus CA 95367 $ 1,200,000 $ 1,197,443
290 Petaluma Sonoma CA 94952 $ 1,125,000 $ 1,123,969
Total/Weighted Average: $ 1,567,791,349 $ 1,564,253,441
===========================================
<CAPTION>
Original Remaining
Term to Term to Original Remaining
Stated Stated Amortization Amortization
Monthly Mortgage Maturity Maturity Maturity Term Term Mortgage
# P&I Rate (months)(7) (months)(7) Date (months) (months) Loan Seller
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
161 $ 26,946 7.480% 240 237 3/1/18 240 237 GE Capital Access
163 $ 23,704 7.180% 120 117 3/1/23 300 297 GE Capital Access
168 $ 25,037 7.220% 120 114 12/1/17 240 234 GE Capital Access
176 $ 22,307 7.570% 120 119 5/1/23 300 299 GE Capital Access
177 $ 21,897 7.360% 120 119 5/1/23 300 299 GE Capital Access
180 $ 19,706 7.040% 120 119 4/30/28 360 359 GE Capital Access
182 $ 19,528 7.120% 121 120 5/1/28 360 359 GE Capital Access
184 $ 21,040 7.370% 300 299 5/1/23 300 299 GE Capital Access
189 $ 20,543 7.520% 240 240 6/1/23 300 300 GE Capital Access
192 $ 18,167 6.930% 120 119 5/1/23 360 359 GE Capital Access
199 $ 19,502 7.670% 120 118 4/1/23 300 298 GE Capital Access
200 $ 19,349 7.580% 120 115 1/1/23 300 295 GE Capital Access
201 $ 16,689 6.800% 120 116 2/1/28 360 356 GE Capital Access
203 $ 16,692 6.840% 120 117 3/1/28 360 357 GE Capital Access
205 $ 19,546 7.920% 84 79 1/1/23 300 295 GE Capital Access
208 $ 22,541 7.050% 180 179 5/1/13 180 179 GE Capital Access
210 $ 16,492 7.050% 180 179 5/1/13 360 359 GE Capital Access
211 $ 17,867 7.350% 120 117 3/1/23 300 297 GE Capital Access
213 $ 17,316 7.230% 120 120 6/1/23 300 300 GE Capital Access
218 $ 15,045 7.050% 180 179 5/1/28 360 359 GE Capital Access
219 $ 15,662 7.080% 120 120 6/1/23 300 300 GE Capital Access
224 $ 14,082 6.970% 120 116 2/1/28 360 356 GE Capital Access
225 $ 14,056 7.060% 120 119 5/1/28 360 359 GE Capital Access
231 $ 13,556 6.940% 120 118 4/1/28 360 358 GE Capital Access
233 $ 12,999 6.770% 120 119 5/1/28 360 359 GE Capital Access
242 $ 16,087 7.480% 240 237 3/1/18 240 237 GE Capital Access
247 $ 12,858 7.170% 240 240 6/1/28 360 360 GE Capital Access
248 $ 12,692 7.040% 120 119 4/30/28 360 359 GE Capital Access
253 $ 12,458 7.340% 120 119 5/1/28 360 359 GE Capital Access
255 $ 11,891 6.930% 120 118 4/1/28 360 358 GE Capital Access
256 $ 12,676 6.960% 120 118 4/1/23 300 298 GE Capital Access
258 $ 13,789 7.210% 240 238 4/1/18 240 238 GE Capital Access
264 $ 12,140 7.450% 120 119 5/1/23 300 299 GE Capital Access
265 $ 10,626 6.800% 120 117 3/1/08 360 357 GE Capital Access
268 $ 11,187 7.500% 144 139 1/1/28 360 355 GE Capital Access
271 $ 10,041 6.930% 120 120 6/1/28 360 360 GE Capital Access
273 $ 10,842 7.250% 60 55 1/1/23 300 295 GE Capital Access
274 $ 10,770 7.460% 120 115 1/1/23 300 295 GE Capital Access
276 $ 10,374 7.330% 60 55 1/1/23 300 295 GE Capital Access
277 $ 16,699 8.370% 144 128 2/1/09 144 128 GE Capital Access
281 $ 10,146 7.280% 180 179 5/1/23 300 299 GE Capital Access
283 $ 9,272 7.470% 300 299 5/1/23 360 359 GE Capital Access
287 $ 9,072 7.460% 120 115 1/1/23 300 295 GE Capital Access
288 $ 8,767 7.370% 120 118 4/1/23 300 298 GE Capital Access
290 $ 8,365 7.570% 120 119 5/1/23 300 299 GE Capital Access
$ 100,755 7.210% 135 133 11/29/18 337 334
================================================================================================
<CAPTION>
Column Third Defeasance Fee Simple/ Interest Calculation
# Party Originator ARD (8) Option (9) Leasehold (30/360 / Actual/360)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
161 N/A No Fee Actual/360
163 N/A 3/1/08 No Fee Actual/360
168 N/A 12/1/07 Yes Fee 30/360
176 N/A 5/1/08 No Fee Actual/360
177 N/A 5/1/08 No Fee 30/360
180 N/A 5/1/08 Yes Fee Actual/360
182 N/A 6/1/08 No Fee Actual/360
184 N/A Yes Fee Actual/360
189 N/A 6/1/18 No Fee Actual/360
192 N/A 5/1/08 No Fee Actual/360
199 N/A 4/1/08 No Fee Actual/360
200 N/A 1/1/08 No Fee Actual/360
201 N/A 2/1/08 No Fee Actual/360
203 N/A 3/1/08 No Leasehold Actual/360
205 N/A 1/1/05 No Fee Actual/360
208 N/A No Fee Actual/360
210 N/A No Leasehold Actual/360
211 N/A 3/1/08 No Fee Actual/360
213 N/A 6/1/08 No Fee Actual/360
218 N/A 5/1/13 No Fee Actual/360
219 N/A 6/1/08 Yes Fee Actual/360
224 N/A 2/1/08 No Fee Actual/360
225 N/A 5/1/08 No Fee Actual/360
231 N/A 4/1/08 No Fee Actual/360
233 N/A 5/1/08 No Fee Actual/360
242 N/A No Fee Actual/360
247 N/A 6/1/18 Yes Fee Actual/360
248 N/A 5/1/08 Yes Fee Actual/360
253 N/A 5/1/08 Yes Fee Actual/360
255 N/A 4/1/08 Yes Fee Actual/360
256 N/A 4/1/08 No Fee Actual/360
258 N/A No Fee Actual/360
264 N/A 5/1/08 No Fee Actual/360
265 N/A No Fee Actual/360
268 N/A 1/1/10 No Fee Actual/360
271 N/A 6/1/08 No Fee Actual/360
273 N/A 1/1/03 No Fee Actual/360
274 N/A 1/1/08 No Fee Actual/360
276 N/A 1/1/03 No Fee Actual/360
277 N/A No Leasehold Actual/360
281 N/A 5/1/13 No Fee Actual/360
283 N/A No Fee Actual/360
287 N/A 1/1/08 No Fee Actual/360
288 N/A 4/1/08 No Fee Actual/360
290 N/A 5/1/08 No Fee Actual/360
</TABLE>
(1E) The Mortgage Loans secured by Highland Pavilion Shopping Center and
Highland Pavilion Cinema, respectively, are cross-collateralized and
cross-defaulted.
(7) In the case of the Anticipated Repayment Date loans, the Anticipated
Repayment Date is assumed to be the maturity date for the purposes of the
indicated column.
(8) Anticipated Repayment Date.
(9) "Yes" means that defeasance is permitted (as otherwise described in this
Prospectus Supplement) notwithstanding the Lockout Period. "Both" means
that the Mortgage Loan provides for a Lockout Period followed by a period
during which defeasance is permitted and, for purposes of the "Prepayment
Provision" set forth in this table and described in this Prospectus
Supplement, the two periods are together presented as a "Lockout Period"
during which defeasance is permitted (as otherwise described in this
Prospectus Supplement).
<PAGE>
EXHIBIT B-2
SCHEDULE OF EXCEPITIONS TO
MORTGAGE FILE DELIVERY
B-2-1
<PAGE>
EXHIBIT C
LETTER OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITORY
C-1-1
<PAGE>
EXHIBIT D-1
FORM OF SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Series 1998-CG1
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of June 1, 1998 (the "Pooling and Servicing Agreement"), among DLJ Commercial
Mortgage Corp. as depositor, the undersigned as servicer (the "Servicer"),
Midland Loan Services, Inc. as special servicer and you as trustee (in such
capacity, the "Trustee") and REMIC administrator, the undersigned as Servicer
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by or on behalf of you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts
received in connection with the Mortgage Loan that
are required to be credited to the Collection Account
pursuant to the Pooling and Servicing Agreement, have
been or will be so credited.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the
D-1-1
<PAGE>
Pooling and Servicing Agreement and will be returned to you or your designee
within ten (10) days of our receipt thereof, unless the Mortgage Loan has been
paid in full, in which case the Mortgage File (or such portion thereof) will be
retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
GE CAPITAL LOAN SERVICES, INC.
as Servicer
By:________________________________________
Name:
Title:
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Series 1998-CG1
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of June 1, 1998 (the "Pooling and Servicing Agreement"), among DLJ Commercial
Mortgage Corp. as depositor, GE Capital Loan Services, Inc., as servicer, the
undersigned as special servicer (the "Special Servicer") and you as trustee (in
such capacity, the "Trustee") and REMIC administrator, the undersigned as
Special Servicer hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
D-2-1
<PAGE>
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
MIDLAND LOAN SERVICES, INC.
as Special Servicer
By:________________________________________
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E-1
FORM OF TRUSTEE REPORT
E-1-1
<PAGE>
EXHIBIT E-2A
FORM OF CSSA LOAN FILE REPORT
E-2-1
<PAGE>
EXHIBIT E-2B
FORM OF CSSA PROPERTY FILE REPORT
E-2-2
<PAGE>
EXHIBIT E-3
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
E-3-1
<PAGE>
EXHIBIT E-4
FORM OF DELINQUENT LOAN STATUS REPORT
E-4-1
<PAGE>
EXHIBIT E-5
FORM OF HISTORICAL LOAN MODIFICATION REPORT
E-5-1
<PAGE>
EXHIBIT E-6
FORM OF HISTORICAL LOSS ESTIMATE REPORT
E-6-1
<PAGE>
EXHIBIT E-7
FORM OF NOI ADJUSTMENT WORKSHEET
E-7-1
<PAGE>
EXHIBIT E-8
FORM OF OPERATING STATEMENT ANALYSIS
E-8-1
<PAGE>
EXHIBIT E-9
FORM OF REO STATUS REPORT
E-9-1
<PAGE>
EXHIBIT E-10
FORM OF WATCH LIST
E-10-1
<PAGE>
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
_____________, 19__
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1, Class ____,
[having an initial aggregate Certificate Principal Balance
as of June 24, 1998 (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related
Class]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ____________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 1998, among DLJ
Commercial Mortgage Corp., as Depositor, GE Capital Loan Services, Inc., as
Servicer, Midland Loan Services, Inc., as Special Servicer, and Norwest Bank
Minnesota, National Association, as Trustee and REMIC Administrator. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Non-Registered Certificate, any interest in a Non-Registered Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Non-Registered Certificate, any interest in a Non-Registered Certificate or
any other similar security from any person in any manner, (c) otherwise
F-1A-1
<PAGE>
approached or negotiated with respect to any Non-Registered Certificate,
any interest in a Non-Registered Certificate or any other similar security
with any person in any manner, (d) made any general solicitation with
respect to any Non-Registered Certificate, any interest in a Non-Registered
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Non-Registered Certificate, any interest in a Non-Registered Certificate or
any other similar security, which (in the case of any of the acts described
in clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), or would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state
securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act (a "Qualified Institutional Buyer") purchasing for
its own account or for the account of another person that is itself a
Qualified Institutional Buyer. In determining whether the Transferee is a
Qualified Institutional Buyer, the Transferor and any person acting on
behalf of the Transferor in this matter has relied upon the following
method(s) of establishing the Transferee's ownership and discretionary
investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser;
or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state, or
local governmental agency or self-regulatory organization, or
with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16 months
preceding the date of sale of the Transferred Certificates in the
case of a U.S. purchaser and within 18 months preceding such date
of sale in the case of a foreign purchaser; or
___ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser;
or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of
the Transferee, specifying the amount of securities owned and
invested on a discretionary basis by the Transferee as of a
specific date on or since the
F-1A-2
<PAGE>
close of the Transferee's most recent fiscal year, or, in the
case of a Transferee that is a member of a "family of investment
companies," as that term is defined in Rule 144A, a certification
by an executive officer of the investment adviser specifying the
amount of securities owned by the "family of investment
companies" as of a specific date on or since the close of the
Transferee's most recent fiscal year.
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
securities that are part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer; securities of issuers
that are part of the Transferee's "family of investment companies," if
the Transferee is a registered investment company; bank deposit notes
and certificates of deposit; loan participations; repurchase
agreements; securities owned but subject to a repurchase agreement;
and currency, interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the cost of
such securities, except where the entity reports its securities
holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those
securities has been published, in which case the securities may be
valued at market; and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under the
direction of the entity, except that, unless the entity is a reporting
company under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, securities owned by such subsidiaries may not be
included if the entity itself is a majority-owned subsidiary that
would be included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor
is relying on the exemption from the provisions of Section 5 of the
Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Transferred Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement, (d) any credit enhancement mechanism associated with
the Transferred Certificates, and (e) all related matters, that the
Transferee has requested.
Very truly yours,
- -------------------------------------
F-1A-3
<PAGE>
(Transferor)
By:
- ----------------------------------
Name:
- ----------------------------------
Title:
- ----------------------------------
F-1A-4
<PAGE>
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
_____________, 19__
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1, Class _______,
[having an initial aggregate Certificate Principal Balance
as of June 24, 1998 (the "Closing Date") of $__________]
[evidencing a ___% Percentage Interest in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _______________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 1998, among DLJ
Commercial Mortgage Corp., as Depositor, GE Capital Loan Services, Inc., as
Servicer, Midland Loan Services, Inc. as Special Servicer, and Norwest Bank
Minnesota, National Association, as Trustee and REMIC Administrator. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Non-Registered Certificate, any interest in a Non-Registered Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Non-Registered Certificate, any interest in a Non-Registered Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Non-Registered Certificate,
any interest in a Non-Registered Certificate or any other similar security
with any person in any manner, (d) made any general solicitation with
respect to any Non-Registered Certificate, any interest in a Non-Registered
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Non-Registered Certificate, any interest in a Non-Registered Certificate or
any other similar security, which (in the case of any of the acts described
in clauses
F-1B-1
<PAGE>
(a) through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "Securities
Act"), would render the disposition of the Transferred Certificates a
violation of Section 5 of the Securities Act or any state securities laws,
or would require registration or qualification of the Transferred
Certificates pursuant to the Securities Act or any state securities laws.
Very truly yours,
- ----------------------------------
(Transferor)
By:
- ----------------------------------
Name:
- ----------------------------------
Title:
- ----------------------------------
F-1B-2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
_____________, 19__
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1, Class _______,
[having an initial aggregate Certificate Principal Balance
as of June 24, 1998 (the "Closing Date") of $__________]
[evidencing a ___% Percentage Interest in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 1998, among DLJ
Commercial Mortgage Corp., as Depositor, GE Capital Loan Services, Inc., as
Servicer, Midland Loan Services, Inc., as Special Servicer, and Norwest Bank
Minnesota, National Association, as Trustee and REMIC Administrator. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has
requested.
F-2A-1
<PAGE>
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
___________________________________________
(Transferee)
By:________________________________________
Name:___________________________________
Title:__________________________________
F-2A-2
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
(Nominee)
By:________________________________________
Name:___________________________________
Title:__________________________________
F-2A-3
<PAGE>
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________1 in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the case
of a U.S. bank, and not more than 18 months preceding such date of
sale in the case of a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a state or federal authority having supervision over any
such institutions, or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements,
a
- --------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
F-2A-4
<PAGE>
copy of which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the case
of a U.S. savings and loan association, and not more than 18 months
preceding such date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a state, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the
F-2A-5
<PAGE>
Transferee's direction. However, such securities were not included if the
Transferee is a majority-owned, consolidated subsidiary of another enterprise
and the Transferee is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
Print Name of Transferee
By:________________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
F-2A-6
<PAGE>
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or
F-2A-7
<PAGE>
owned by the Transferee's Family of Investment Companies, the securities
referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
---- -----
Yes No Will the Transferee be purchasing the
Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
Print Name of Transferee or Adviser
By:________________________________________
Name:________________________________
Title:_______________________________
IF AN ADVISER:
___________________________________________
Print Name of Transferee
Date:______________________________________
F-2A-8
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
_____________, 19__
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-
Through Certificates, Series 1998-CG1, Class _______,
[having an initial aggregate Certificate Principal Balance
as of June 24, 1998 (the "Closing Date") of $__________]
[evidencing a ___% Percentage Interest in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to ________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 1998, among DLJ
Commercial Mortgage Corp., as Depositor, GE Capital Loan Services, Inc., as
Servicer, Midland Loan Services, Inc., as Special Servicer, and Norwest Bank
Minnesota, National Association, as Trustee and REMIC Administrator. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own account
for investment and not with a view to or for sale or transfer in connection with
any distribution thereof, in whole or in part, in any manner which would violate
the Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received (A) a certificate from
the prospective transferor substantially in the form attached as Exhibit F-1A to
the Pooling and Servicing Agreement, (B) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1B to Pooling and
Servicing Agreement and a certificate from the prospective transferee
substantially in the form attached either as Exhibit F-2A or Exhibit F-2B to the
Pooling and Servicing Agreement, or (C) an Opinion of Counsel satisfactory to
the Certificate Registrar that the transfer may be made without registration
under the Securities
F-2B-1
<PAGE>
Act, together with the written certification(s) as to the facts surrounding the
transfer from the prospective transferor and/or prospective transferee upon
which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY,
THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER")
OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2),
(3) OR (7) OF RULE 501(a) OF REGULATION D UNDER THE SECURITIES ACT OR
AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY SUCH
PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any
F-2B-2
<PAGE>
person in any manner, (d) made any general solicitation by means of general
advertising or in any other manner, or (e) taken any other action, that (in the
case of any of the acts described in clauses (a) through (e) above) would
constitute a distribution of the Transferred Certificates under the Securities
Act, would render the disposition of the Transferred Certificates a violation of
Section 5 of the Securities Act or any state securities law or would require
registration or qualification of the Transferred Certificates pursuant thereto.
The Transferee will not act, nor has it authorized nor will it authorize any
person to act, in any manner set forth in the foregoing sentence with respect to
the Transferred Certificates, any interest in the Transferred Certificates or
any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
___________________________________________
(Transferee)
By:________________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
___________________________________________
(Nominee)
By:________________________________________
Name:______________________________________
F-2B-3
<PAGE>
Title: ____________________________________
F-2B-4
<PAGE>
EXHIBIT G
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
[Date]
Norwest Bank Minnesota, National Association
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-
Through Certificates, Series 1998-CG1, Class ___, [having an
initial aggregate Certificate Principal Balance as of June
24, 1998 (the "Closing Date") of $______________]
[evidencing a ____% Percentage Interest in the related
Class]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 1, 1998, among DLJ Commercial Mortgage Corp. as
depositor, GE Capital Loan Services, Inc., as servicer, Midland Loan Services,
Inc., as special servicer, and Norwest Bank Minnesota, National Association, as
trustee and REMIC administrator. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, as follows (check the applicable paragraph):
___ The Transferee is not an employee benefit plan or other retirement
arrangement, including an individual retirement account or annuity, a Keogh
plan or a collective investment fund or separate account in which such
plans, accounts or arrangements are invested, including an insurance
company general account, that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or the Internal Revenue Code of
1986, as amended (the "Code"; and each such employee benefit plan or other
retirement arrangement, a "Plan"), and the Transferee is not directly or
indirectly purchasing the Transferred Certificates on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
G-1
<PAGE>
___ The Transferee is using funds from an insurance company general account to
acquire the Transferred Certificates, however, the purchase and holding of
such Certificates by such Person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under
Sections I and III of Prohibited Transaction Class Exemption 95-60.
Very truly yours,
___________________________________________
(Transferee)
By:________________________________________
Name:
Title:
G-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1998-CG1, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Interest Certificates")), a _________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Interest Certificates, and (ii) is acquiring
the Residual Interest Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax (unless such organization is subject to the tax on unrelated business
taxable income).
3. The Transferee is aware (i) of the tax that would be imposed under the
Code on transfers of the Residual Interest Certificates to non-Permitted
Transferees; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Interest
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
H-1-1
<PAGE>
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Interest Certificates if at any time during the taxable
year of the pass-through entity a non-Permitted Transferee is the record holder
of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Interest Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Interest Certificates will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Interest Certificates (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificates to a Person other than the Transferee and clause (ii)(B)
of Section 5.02(d) which authorizes the Trustee to negotiate a mandatory
disposition of the Residual Interest Certificates, in either case, in the event
that the Transferee holds such Residual Interest Certificates in violation of
Section 5.02(d)); and the Transferee expressly agrees to be bound by and to
comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Interest Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Interest Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Interest Certificates.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Interest Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit H-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Interest Certificates to impede
the assessment or collection of any tax and that it has at the time of such
transfer conducted a reasonable investigation of the financial condition of the
proposed transferee as contemplated by Treasury regulation Section
1.860E-1(c)(4)(i) and has satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to
H-1-2
<PAGE>
control all substantial decisions of the trust, all within the meaning of
Section 7701(a)(30) of the Code.
H-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this day of ____, ____.
[NAME OF TRANSFEREE]
By:________________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
____________________________________
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee
Subscribed and sworn before me this day of _____________________, ________.
NOTARY PUBLIC
COUNTY OF__________________________________
STATE OF __________________________________
My Commission expires the _________ day of
___________, 19__.
H-1-4
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF RESIDUAL CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Interest Certificates"). The
Certificates, including the Residual Interest Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of June 1, 1998 (the "Pooling
and Servicing Agreement"), among DLJ Commercial Mortgage Corp., as depositor, GE
Capital Loan Services, Inc., as servicer, Midland Loan Services, Inc., as
special servicer, and Norwest Bank Minnesota, National Association, as trustee
and REMIC administrator. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Interest Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
H-2-1
<PAGE>
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Interest Certificates may not be respected for United States income
tax purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
____________________________________________
(Transferor)
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
H-2-2
<PAGE>
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
[RATING AGENCIES]
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of the Pooling and
Servicing Agreement, dated as of June 1, 1998 and relating to DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series 1998-CG1
(the "Agreement"). Capitalized terms used but not otherwise defined herein shall
have respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will become final
if certain conditions are met and each Rating Agency delivers to Norwest Bank
Minnesota, National Association, the trustee under the Agreement (the
"Trustee"), written confirmation that if the person designated to become the
Special Servicer were to serve as such, such event would not result in the
qualification, downgrade or withdrawal of the rating or ratings assigned to one
or more Classes of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
I-1-1
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________________
Name:
Title:
Receipt acknowledged:
STANDARD & POOR'S RATINGS SERVICES, A DIVISION
OF THE MCGRAW-HILL COMPANIES, INC.
By:_________________________________________
Name:
Title:
Date:
FITCH IBCA, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
I-1-2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[SERVICER]
[DEPOSITOR]
[REMIC ADMINISTRATOR]
Re: DLJ Commercial Mortgage Corp., Series 1998-CG1
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing Agreement, dated as
of June 1,1998 and relating to DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-CG1 (the "Agreement"), the
undersigned hereby agrees with all the other parties to the Agreement that the
undersigned shall serve as Special Servicer under, and as defined in, the
Agreement. The undersigned hereby acknowledges that, as of the date hereof, it
is and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of Special Servicer. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 2.06 of the Agreement, with the following corrections with respect to
type of entity and jurisdiction of organization: ____________________.
___________________________________________
By:________________________________________
Name:
Title:
I-2-1
<PAGE>
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
J-1-1
<PAGE>
EXHIBIT 1 to EXHIBIT J
This Exhibit 1 is attached to and incorporated in a financing statement
pertaining to DLJ Commercial Mortgage Corp. as depositor (referred to as the
"Debtor" for the purpose of this financing statement only), and Norwest Bank
Minnesota, National Association as trustee for the holders of the Series
1998-CG1 Certificates (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of June 1, 1998 (the "Pooling and Servicing Agreement"), among the
Debtor as depositor, the Secured Party as trustee and REMIC administrator, GE
Capital Loan Services, Inc. as servicer (the "Servicer"), and Midland Loan
Services, Inc. as special servicer (the "Special Servicer"), relating to the
issuance of the Debtor's Commercial Mortgage Pass-Through Certificates, Series
1998-CG1 (collectively, the "Series 1998-CG1 Certificates"). Capitalized terms
used herein and not defined shall have the respective meanings given to them in
the Pooling and Servicing Agreement. The attached financing statement covers all
of the Debtor's right (including the power to convey title thereto), title and
interest in and to the Trust Fund created pursuant to the Pooling and Servicing
Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a
borrower (the "Mortgage Notes") with respect to the mortgage
loans (the "Mortgage Loans") listed on the Mortgage Loan Schedule
to the Pooling and Servicing Agreement, which Mortgage Loan
Schedule is attached hereto as Exhibit B;
2. The related mortgages, deeds of trust or other similar
instruments securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each other
legal, credit and servicing document related to such Mortgage
Note and Mortgage (collectively, with such related Mortgage Note
and Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by the Servicer pursuant to
the Pooling and Servicing Agreement, (b) all funds from time to
time on deposit in the Collection Account, (c) the investments of
any such funds consisting of securities, instruments or other
obligations, and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the
right to payments of principal and interest and the right to
enforce the related payment obligations, arising from or under
any such investments;
5. All REO Property;
6. (a) the REO Account required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b) all
funds from time to time on deposit in the REO Account, (c) the
investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles
consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and
interest and the right to enforce the related payment
obligations, arising from or under any such investments;
7. (a) the Servicing Account(s) and Reserve Account(s) required to
be maintained by the Servicer or Special Servicer pursuant to the
Pooling and
J-1-2
<PAGE>
Servicing Agreement, (b) all funds from time to time on deposit
in the Servicing Account(s) and Reserve Account(s), (c) the
investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles
consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and
interest and the right to enforce the related payment
obligations, arising from or under any such investments;
8. (a) the Distribution Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement,
(b) all funds from time to time on deposit in the Distribution
Account, (c) the investments of any such funds consisting of
securities, instruments or other obligations, and (d) the general
intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal
and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
9. All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be
maintained pursuant to the Mortgage Loan Documents and the
Pooling and Servicing Agreement, transferred to the Trust and to
be serviced by the Servicer or Special Servicer; and
10. The rights of the Debtor under Sections 2, 3(a), 3(b), 3(d), 4
and 8(f) (and, to the extent related to the foregoing, under
Sections 9, 10, 12, 13, 14, 15, 16, 17 and 19) of the Mortgage
Loan Purchase and Sale Agreement dated as of February 20, 1998,
between the Debtor and Column Financial, Inc.
11. Any rights of the Debtor, as assignee, under the Third Party
Originator Agreements; and
12. All income, payments, products and proceeds of any of the
foregoing, together with any additions thereto or substitutions
therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS (INCLUDING WITHOUT LIMITATION, PERMITTED
INVESTMENTS) SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SUCH SECURITY,
INSTRUMENT OR OTHER OBLIGATION (INCLUDING WITHOUT LIMITATION, ANY PERMITTED
INVESTMENT) IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED
SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY
APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A
CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY
INTEREST OF THE SECURED PARTY IN THE
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<PAGE>
CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER
OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT). WITH
RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY
ASSERTIONS BY THIRD PARTIES.
J-1-4
<PAGE>
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income" shall mean
for each fiscal year or portion thereof, (i) the related Operating Income
allocable to such period, less (ii) the related Operating Expenses allocable to
such period, and less (iii) any Contractual Recurring Replacement Reserve for
such Mortgaged Property as indicated in the Prospectus Supplement dated February
___, 1998 relating to DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1 (the amounts described in this clause
(iii) to be prorated if "Net Operating Income" is being calculated for less than
a full fiscal year).
With respect to any Mortgaged Property "Operating Income" shall mean, for
each fiscal year or portion thereof, all revenue derived by the related
Mortgagor arising from the Mortgaged Property, including, without limitation,
rental revenues (whether denominated as basic rent, additional rent, percentage
rent, escalation payments, electrical payments or otherwise) and other fees and
charges payable pursuant to leases or otherwise in connection with the Mortgaged
Property, and rent insurance proceeds. Operating Income shall not include (a)
insurance proceeds (other than proceeds of business interruption or other
similar insurance allocable to the applicable period) and condemnation awards
(other than awards arising from a temporary taking or the use and occupancy of
all or part of the applicable Mortgaged Property allocable to the applicable
period), or interest accrued on such proceeds or awards, (b) proceeds of any
financing, (c) proceeds of any sale, exchange or transfer of the Mortgaged
Property or any part thereof or interest therein, (d) capital contributions or
loans to the Mortgagor or an Affiliate of the Mortgagor, (e) any item of income
otherwise includible in Operating Income but paid directly by any tenant to a
Person other than the Mortgagor except for real estate taxes paid directly to
any taxing authority by any tenant, (f) any other extraordinary, non-recurring
revenues, (g) rent paid by or on behalf of any lessee under space lease which is
the subject of any proceeding or action relating to its bankruptcy,
reorganization or other arrangement pursuant to federal bankruptcy law or any
similar federal or state law or which has been adjudicated a bankrupt or
insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses" shall mean, for
each fiscal year or portion thereof, all expenses directly attributable to the
operation, repair and/or maintenance of the Mortgaged Property, including,
without limitation, impositions, insurance premiums, management fees, payments
to third party suppliers, and costs attributable to the operation, repair and
maintenance of the systems for heating, ventilating and air conditioning, and
actually paid for by the Mortgagor. Operating Expenses shall not include
interest, principal and premium, if any, due under the Mortgage Note or
otherwise in connection with any other secured indebtedness, income taxes,
extraordinary capital improvements costs, or any non-cash charge or expense such
as depreciation.
K-1
<PAGE>
EXHIBIT L-1
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY BENEFICIAL HOLDER
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Series 1998-CG1
In accordance with Section 8.12(b) of the Pooling and Servicing Agreement,
dated as of June 1, 1998 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor (the "Depositor"), GE Capital Loan
Services, Inc., as servicer, Midland Loan Services, Inc., as special servicer,
and Norwest Bank Minnesota, National Association as trustee (in such capacity,
the "Trustee") and REMIC administrator, with respect to the DLJ Commercial
Mortgage Corp. Commercial Mortgage Pass-Through Certificates, Series 1998-CG1
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 8.12(b) of the
Pooling and Servicing Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting
it in evaluating the Information), and such Information will not,
without the prior written consent of the Trustee, be disclosed by
the undersigned or by its officers, directors, partners
employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part;
provided that the undersigned may provide all or any part of the
Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest
therein, but only if such person or entity confirms in writing
such ownership interest or prospective ownership interest and
agrees to keep it confidential. 4. The undersigned will not use
or disclose the Information in any manner which could result in a
violation of any provision of the Securities Act of 1933, as
amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall
indemnify the Depositor, the Trustee and the Trust for any loss,
liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
L-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By:________________________________________
Name:
Title:
L-1-2
<PAGE>
EXHIBIT L-2
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY PROSPECTIVE PURCHASER
[Date]
[TRUSTEE]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1 (the "Certificates")
In accordance with Section 8.12(b) of the Pooling and Servicing Agreement,
dated as of February __, 1998 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor (the "Depositor"), GE Capital Loan
Services, Inc., as servicer, Midland Loan Services, Inc., as special servicer,
and Norwest Bank Minnesota, National Association as trustee (in such capacity,
the "Trustee") and REMIC administrator, with respect to the DLJ Commercial
Mortgage Corp. Commercial Mortgage Pass-Through Certificates, Series 1998-CG1
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 8.12(b) of the
Pooling and Servicing Agreement (the "Information") for use in
evaluating such possible investment.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting
it in making the investment decision described in paragraphs 1
and 2), and such Information will not, without the prior written
consent of the Trustee, be disclosed by the undersigned or by its
officers, directors, partners employees, agents or
representatives (collectively, the "Representatives") in any
manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the
Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall
indemnify the Depositor, the Trustee and the Trust for any loss,
liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
L-2-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:________________________________________
Name:
Title:
L-2-2
<PAGE>
EXHIBIT M-1
FORM OF COLUMN MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of June 18, 1998
(this "Agreement"), is between DLJ Commercial Mortgage Corp., a Delaware
corporation (the "Purchaser"), and Column Financial, Inc., a Delaware
corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and otherwise convey
to the Purchaser, subject to the terms and conditions set forth below, certain
mortgage loans (collectively, the "Mortgage Loans") identified and more
particularly described on Schedule 1 attached hereto (the "Mortgage Loan
Schedule"). Unless otherwise indicated on the Mortgage Loan Schedule, the
Mortgage Loans were originated by the Seller. With respect to those Mortgage
Loans, if any, identified on the Mortgage Loan Schedule as having been
originated by a party other than the Seller (any such other party, a "Third
Party Originator"; and any such Mortgage Loan, a "Third Party Mortgage Loan"),
the Seller is the beneficiary, either directly or by way of assignment, of
certain representations and warranties made by the Third Party Originator(s)
with respect to its (their) respective Third Party Mortgage Loan(s) pursuant to
the agreement(s) identified on Schedule 2 hereto (each agreement so identified,
a "Third Party Originator Agreement"). The Seller also intends to assign to the
Purchaser all of its right, title and interest in, to and under each Third Party
Originator Agreement, as and to the extent set forth in Section 2 below.
Reference is made to the Pooling and Servicing Agreement, dated as of June
1, 1998 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, GE Capital Loan Services, Inc., as servicer (in such capacity, the
"Servicer"), Midland Loan Services, Inc., as special servicer (in such capacity,
the "Special Servicer"), and Norwest Bank Minnesota, N.A. as trustee (in such
capacity, the "Trustee") and as REMIC administrator (in such capacity, the
"REMIC Administrator"), relating to the issuance of the Purchaser's Commercial
Mortgage Pass-Through Certificates, Series 1998-CG1 (the "Certificates").
Capitalized terms used without definition herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement as in full
force and effect on the Closing Date (as defined below). The Seller acknowledges
that the Purchaser intends to transfer the Mortgage Loans, together with certain
other commercial and multifamily mortgage loans, to the Trustee in exchange for
the Certificates. The Purchaser has entered into an Underwriting Agreement,
dated the date hereof (the "Underwriting Agreement"), with Donaldson, Lufkin &
Jenrette Securities Corporation (the "Underwriter"), whereby the Purchaser will
sell to the Underwriter all of the Certificates that are to be registered under
the Securities Act of 1933, as amended (the "Securities Act"; and such
Certificates, the "Registered Certificates"). The Purchaser has also entered
into a Certificate Purchase Agreement, dated the date hereof (the "Certificate
Purchase Agreement"), with the Underwriter, whereby the Purchaser will sell to
the Underwriter all of the remaining Certificates (the "Non-Registered
Certificates").
1. Agreement to Purchase. The Seller agrees to sell, assign, transfer, set
over and otherwise convey, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on June 24,
1998 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The Mortgage Loans will have an aggregate Cut-off Date
Balance of approximately $1,564,253,441 (the "Initial Pool Balance"). The
purchase price for the Mortgage Loans shall be equal to _____% of the Initial
Pool Balance plus accrued interest thereon at the weighted average of the Net
Mortgage Rates for the Mortgage Loans from June 1, 1998 (the "Cut-off Date") to
but not including the Closing Date, and such purchase price shall be paid to the
Seller on the Closing Date by wire transfer in immediately available funds or by
such other method as shall be mutually acceptable to the parties hereto.
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<PAGE>
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 above, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser all the
Seller's right, title and interest in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans after
the Cut-off Date (other than scheduled payments of interest and principal due on
or before the Cut-off Date), together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans, and all of the Seller's right, title and interest in, to and
under the Third Party Originator Agreements; provided, however, that the
Seller's rights under the Third Party Originator Agreements, as assignee, and
the rights the Seller is conveying hereunder, do not include any rights of its
assignor to indemnification under Section 4 of each of such agreements. On the
Closing Date, the Seller shall transfer or cause to be transferred to the
Servicer the funds in such escrow, reserve or other comparable accounts related
to the Mortgage Loans, together with an amount equal to all collections on the
Mortgage Loans received prior to the Closing Date that represent scheduled
payments of principal and interest due and principal prepayments received after
the Cut-off Date.
(b) In connection with such transfer and assignment, the Purchaser hereby
directs the Seller to, and the Seller hereby agrees to, deliver to, and deposit
with, the Trustee (or a custodian appointed thereby (a "Custodian")) the
documents and/or instruments described on Exhibit A hereto with respect to each
Mortgage Loan (collectively as to each Mortgage Loan, the "Mortgage File");
provided that if all or any portion of the Mortgage File for any Mortgage Loan
is held as of the Closing Date by an Independent third party (an "Independent
Bailee"), the Seller may, in lieu of so delivering to the Trustee or a Custodian
appointed thereby the portion of such Mortgage File so held by an Independent
Bailee, deliver to the Trustee or a Custodian appointed thereby on or before the
Closing Date a trust receipt or comparable instrument (a "Trust Receipt") that
unconditionally entitles the bearer thereof (and only the bearer thereof) to
claim without payment of any outstanding debts, the portion of such Mortgage
File so held by an Independent Bailee (which the Trustee is required to do
promptly (and, in any event, within 15 days) following the Closing Date at the
expense and with the cooperation of the Seller). It shall be a breach of this
Section 2(b) if the Trustee or its designee is unable, upon properly submitting
any Trust Receipt to the applicable Independent Bailee, to promptly obtain the
portion of the Mortgage File purportedly covered by such Trust Receipt. In
addition, the Purchaser hereby directs the Seller to, and the Seller hereby
agrees to, deliver to, and deposit with, the Servicer all of the documents and
other items referred to in Section 2.01(f) of the Pooling and Servicing
Agreement with respect to the Mortgage Loans (collectively as to each Mortgage
Loan, the "Servicing File"), together with any and all unapplied escrows and
reserves in respect of the Mortgage Loans.
If the Seller cannot deliver on the Closing Date any original or certified
recorded document described on Exhibit A that is not covered by a Trust Receipt
or any original policy of title insurance described on Exhibit A that is not
covered by a Trust Receipt, the Seller shall use its best efforts, promptly upon
receipt thereof, to deliver such original or certified recorded documents and
such original policies of title insurance to the Trustee or Custodian, as the
case may be (unless the Seller is delayed in making such delivery by reason of
the fact that such original or certified recorded documents shall not have been
returned by the appropriate recording office or such original policy of title
insurance has not yet been issued, in which case it shall notify the Trustee
and, if applicable, the Custodian in writing of such delay and shall deliver
such documents to the Trustee or Custodian, as the case may be, promptly upon
the Seller's receipt thereof). In any event, if the Seller fails to deliver any
original or certified recorded document described on Exhibit A or any original
title policy described on Exhibit A to
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<PAGE>
the Trustee or Custodian within 180 days following the Closing Date, such
failure shall be deemed to constitute a breach of the representation set forth
in Item 39 of Exhibit C hereto with respect to the related Mortgage Loan. In
addition, upon delivery of each such original or certified recorded document,
and each original title policy, the representation set forth in Item 39 of
Exhibit C hereto shall be deemed to have been made (as of the Closing Date) by
the Seller as to such document.
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser and its successors and assigns (including, without limitation,
the Trustee for the benefit of the Certificateholders), each of the
representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders), each
of the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the Purchaser only, that the Seller has not dealt with
any broker, investment banker, agent or other person (other than the Purchaser
and the Underwriter) who may be entitled to any commission or compensation in
connection with the sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser and its successors and assigns (including, without
limitation, the Trustee for the benefit of the Certificateholders), as of the
date of substitution, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Defective Mortgage Loan
(as defined in Section 4(a) hereof), whether by the Seller pursuant to Section
4(a) or by a Third Party Originator pursuant to the related Third Party
Originator Agreement, each of the representations and warranties set forth in
Exhibit B and Exhibit C (other than, in the case of a Replacement Mortgage Loan
substituted by a Third Party Originator, the representations and warranties set
forth in the final clause of Paragraph (a) of Exhibit B and Paragraph 2 of
Exhibit C). From and after the date of substitution, each Replacement Mortgage
Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder for all
purposes.
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within ninety (90) days of receipt of notice by the Seller that there
has been a breach of any of the representations and warranties set forth in
Exhibit B or Exhibit C and made by the Seller pursuant to Section 3(a), Section
3(b) or Section 3(d), as the case may be, which breach materially and adversely
affects the value of any Mortgage Loan or the interests of the legal and/or
beneficial owner(s) thereof (any such breach, a "Material Breach"), the Seller
shall, subject to subsection (b) below, (i) cure such Material Breach in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price in accordance with the
directions of the owner(s) of such Defective Mortgage Loan(s); provided that if
(i) such Material Breach does not relate to whether the Defective Mortgage Loan
is a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
(a "Qualified Mortgage"), (ii) such Material Breach is capable of being cured
but not within such 90-day period, (iii) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach within such 90-day
period, and (iv) the
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<PAGE>
Seller shall have delivered to the owner(s) of the Defective Mortgage Loan a
certification executed on behalf of the Seller by an officer thereof setting
forth the reason that such Material Breach is not capable of being cured within
the initial 90-day period and what actions the Seller is pursuing in connection
with the cure thereof and stating that the Seller anticipates that such Material
Breach will be cured within an additional period not to exceed 90 more days,
then the Seller (except with respect to Third Party Mortgage Loans as provided
in Section 4(b)) shall have up to an additional 90 days to complete such cure,
in which event the Seller shall continue to proceed diligently to effect such
cure as early as practicable within such 90-day period; and provided, further,
that if the Seller's obligation to repurchase any Defective Mortgage Loan as a
result of a Material Breach arises within the three-month period commencing on
the Closing Date (or within the two-year period commencing on the Closing Date
if the Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), the Seller may, at its option, in lieu of repurchasing such
Defective Mortgage Loan (but, in any event, no later than such repurchase would
have to have been completed), (a) replace such Defective Mortgage Loan with one
or more substitute mortgage loans that individually and collectively satisfy the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement, and (b) pay any corresponding
Substitution Shortfall Amount, such substitution and payment to be effected in
accordance with the terms of the Pooling and Servicing Agreement (or, if the
Defective Mortgage Loan is no longer subject thereto, in accordance with the
reasonable instructions of the owner(s) thereof). Any such repurchase or
replacement of a Defective Mortgage Loan shall be on a whole loan, servicing
released basis. The Seller shall have no obligation to monitor the Mortgage
Loans regarding the existence of a Material Breach, but if the Seller discovers
a Material Breach with respect to a Mortgage Loan, it will notify the Purchaser.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(a), the Seller (i) shall deliver
the related Mortgage File to the owner(s) of the Defective Mortgage Loan, (ii)
certify that such substitute mortgage loan satisfies or such substitute mortgage
loans satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement and (iii) send such certification to such owner(s). No mortgage loan
may be substituted for a Defective Mortgage Loan as contemplated by this Section
4(a) if the Defective Mortgage Loan to be replaced was itself a Replacement
Mortgage Loan. Monthly Payments due with respect to each Replacement Mortgage
Loan (if any) after the related date of substitution, and Monthly Payments due
with respect to each Defective Mortgage Loan (if any) after the Cut-off Date and
on or prior to the related date of repurchase or substitution, shall belong to
the Purchaser and its successors and assigns. Monthly Payments due with respect
to each Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or substitution, shall belong
to the Seller (or, in the case of a Defective Mortgage Loan that is repurchased
or replaced by a Third Party Originator, to such Third Party Originator).
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the owner(s) of such Defective Mortgage
Loan.
Except as set forth in Section 8, it is understood and agreed that the
obligations of the Seller set forth in this Section 4(a) to cure a Material
Breach or repurchase or replace the related Defective Mortgage Loan(s)
constitute the sole remedies available to the Purchaser or
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any assignee respecting a breach of the representations and warranties set forth
on Exhibits B and C and made by the Seller pursuant to Sections 3(a), 3(b) and
3(d), respectively.
(b) It is hereby acknowledged that with respect to the Third Party Mortgage
Loans, if any, the rights of the Seller in respect of those certain
representations and warranties made by the Third Party Originators pursuant to
the Third Party Originator Agreements and assigned by the Seller to the
Purchaser pursuant hereto will, in turn, be assigned by the Purchaser to the
Trustee, as trustee under the Pooling and Servicing Agreement, for the benefit
of the Certificateholders. Accordingly, it is hereby agreed that if, in respect
of any such Third Party Mortgage Loan, there exists a breach of any of the
related Third Party Originator's representations and warranties for which such
Third Party Originator could be required to repurchase or (at its option, to the
extent of its substitution rights and subject to the Seller's right to approve
any Replacement Mortgage Loan delivered thereunder) replace such Third Party
Mortgage Loan, then notwithstanding that such Third Party Mortgage Loan may also
constitute a Defective Mortgage Loan for purposes of Section 4(a) by reason of a
Material Breach of any of the Seller's representations and warranties set forth
in Exhibits B and C made pursuant to Sections 3(a), 3(b) and 3(d), respectively,
the Seller shall be deemed not to have notice of such Material Breach (and,
correspondingly, not to be obligated to proceed with the cure of such Material
Breach or the repurchase of or substitution for such Third Party Mortgage Loan)
unless and until the related Third Party Originator shall have failed to cure
such Material Breach or repurchase or replace such Third Party Mortgage Loan
during the cure period for the breach of its representations and warranties set
forth in the related Third Party Originator Agreement; provided that this
sentence shall not apply in the event of a Material Breach that relates to
whether the Defective Mortgage Loan is a Qualified Mortgage. The foregoing
notwithstanding, if, as a result of the failure of a Third Party Originator to
cure a Material Breach with respect to a Third Party Mortgage Loan or repurchase
or replace such Third Party Mortgage Loan during the applicable cure period, the
Seller is obligated to cure such Material Breach or repurchase or replace such
Third Party Mortgage Loan, the Seller shall not be entitled to the additional
90-day cure period that is provided for in Section 4(a) with respect to Mortgage
Loans that are not Third Party Mortgage Loans. In addition, if the price at
which any Third Party Mortgage Loan is required to be repurchased by the related
Third Party Originator, or the additional cash amount to be paid together with
the delivery of one or more Replacement Mortgage Loans substituted by the
related Third Party Originator for any Third Party Mortgage Loan, in either case
in connection with a breach of such Third Party Originator's representations and
warranties as contemplated above, is less than the applicable Purchase Price or
Substitution Shortfall Amount, as the case may be, the Seller shall make-up the
difference out of its own funds (payment of such difference to be made in
accordance with the directions of the owner(s) of such Third Party Mortgage Loan
at the time it is repurchased or replaced by such Third Party Originator).
(c) It shall be a condition to any repurchase of or substitution for a
Defective Mortgage Loan by the Seller pursuant to Section 4(a) that the Trustee
as assignee of the Purchaser shall have executed and delivered such instruments
of transfer or assignment then presented to it by the Seller, in each case
without recourse, as shall be necessary to vest in the Seller (i) the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), to the extent that such ownership interest was transferred to the
Trustee under the Pooling and Servicing Agreement, and (ii) in the case of a
Third Party Mortgage Loan, the rights in respect of such Third Party Mortgage
Loan under the related Third Party Originator Agreement that were assigned to
the Trustee under the Pooling and Servicing Agreement.
(d) The Seller hereby acknowledges and consents to the assignment by the
Purchaser to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Certificateholders, of (i) the representations and
warranties set forth in Exhibits B and C
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and made by the Seller pursuant to Sections 3(a), 3(b) and 3(d), respectively,
(ii) the obligation of the Seller to repurchase or replace a Defective Mortgage
Loan in connection with a Material Breach pursuant to Section 4(a) and (iii) the
obligation of the Seller to deliver certain documentation, funds and other
assets relating to the Mortgage Loans pursuant to Section 2. The Trustee or its
designee may enforce such obligations as provided in Section 11(a) hereof or as
assignee.
5. Closing. The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley & Austin, 875 Third Avenue, New York, New
York 10022 at 10:00 a.m., New York City time (or at such other place and time as
may be determined by the Purchaser), on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller made
pursuant to Section 3 of this Agreement shall be true and correct as of the
Closing Date;
(ii) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee or a
Custodian and to the Servicer, respectively, all documents, funds and other
assets required to be delivered thereto pursuant to Section 2 of this
Agreement;
(iv) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date; and
(v) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of the following:
(i) This Agreement duly executed by the Purchaser and the Seller;
(ii) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by an executive officer of the Seller, in his or her
individual capacity, and dated the Closing Date, and upon which the
Purchaser, the Underwriter, their affiliates, the Trustee and the
Certificateholders (collectively, for purposes of this Section 6, the
"Interested Parties") may rely, attaching thereto as exhibits (A) the
resolutions of the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated by this Agreement and
(B) the certificate of incorporation and by-laws of the Seller;
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(iii) A certificate of good standing of the Seller issued by the
Secretary of State of the State of Delaware not earlier than thirty (30)
days prior to the Closing Date, and upon which the Interested Parties may
rely;
(iv) A Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller and dated the
Closing Date, and upon which the Interested Parties may rely;
(v) A written opinion of Long Aldridge & Norman, counsel for the
Seller, substantially in the form of Exhibit D-3 hereto, with any
modifications required by any rating agency (each, a "Rating Agency")
identified in the Prospectus Supplement or the Memorandum (each as defined
below), dated the Closing Date and addressed to the Purchaser, the
Underwriter, the Trustee and, if requested thereby, each Rating Agency,
together with such other written opinions as may be required by any Rating
Agency; and
(vi) A letter or letters obtained by the Purchaser and the Seller,
among others, from Arthur Andersen LLP, certified public accountants, dated
the dates of the Prospectus Supplement and the Memorandum, to the effect
that they have performed certain specified procedures as a result of which
they have determined that certain information of an accounting, financial
or statistical nature set forth in the Prospectus Supplement and the
Memorandum under the captions "Summary -- The Mortgage Pool," "Description
of the Mortgage Pool" and "Risk Factors -- The Mortgage Loans", Exhibit A-1
to the Prospectus Supplement and the Diskette (as defined below) agrees
with the records of the Seller; and
(vii) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
7. Costs. The Seller shall pay all expenses incidental to the performance
of its obligations under this Agreement, including without limitation, any
recording fees or fees for title policy endorsements and continuations and fees
and expenses of its counsel.
The Seller shall pay all out-of-pocket costs and expenses of the Purchaser
, the Trust and the representatives of the Trust reasonably incurred in
connection with the enforcement of any rights or remedies of the Purchaser or
the Trust provided for by this Agreement, including the performance of all of
the Seller's obligations hereunder: (a) in defending or protecting the
Purchaser's right, title and interest in the Mortgage Loans, including, without
limitation, the security interests and liens granted hereunder in the event that
the sale hereunder is deemed to constitute a loan secured by all or part of the
Mortgage Loans, or in defending or protecting the priority of any thereof; and
(b) in the enforcement or attempted enforcement of this Agreement or in the
collection or attempted collection of any obligation of the Seller hereunder;
provided, however that if the Seller is the prevailing party in any such
enforcement action (other than an enforcement action commenced by the Trust or
its representatives) against the Seller, then the Seller shall not be obligated
to pay any of the foregoing costs or expenses of the Purchaser , and the
Purchaser shall be obligated to pay such costs and expenses incurred by the
Seller.
8. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriter, their respective officers and directors, and each person, if any,
who controls the Purchaser or the Underwriter 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
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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) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (A) the Prospectus Supplement
(including Exhibit A-1 and Exhibit A-2 thereto and the Diskette) or the
Memorandum (including the Prospectus Supplement as attached as Exhibit A
thereto) or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment of or supplement to any of the foregoing or (B) any
items similar to Computational Materials or ABS Term Sheets forwarded to
prospective investors in the Non-Registered Certificates, or (ii) arise out of
or are based upon the omission or alleged omission to state in the printed
materials described in (i)A) and (B) a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; but, in the case of
(i) and (ii), only if and to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission (I) arises out of or is based
upon an untrue statement or omission with respect to the Mortgage Loans, the
related Mortgagors or the related Mortgaged Properties contained in the Master
Tape (it being acknowledged that the Master Tape was used to prepare the
Prospectus Supplement including without limitation Exhibit A-1 and Exhibit A-2
thereto, the Memorandum, the Diskette, the Computations Materials and ABS Term
Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (ii) is contained in the information
regarding the Mortgage Loans, the related Mortgagors, the related Mortgaged
Properties or the Seller set forth in the Prospectus Supplement and the
Memorandum under the headings "Summary of Prospectus Supplement -- The Mortgage
Loans", "Risk Factors" and "Description of the Mortgage Pool" or on Exhibit A-1
to the Prospectus Supplement; provided that the foregoing were provided to the
Seller for its review, or (III) 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 (such representations and warranties, together with the information
described in the preceding clauses (I) and (II), the "Seller Information";
provided that the indemnification provided by this Section 8 shall not apply to
the extent that such untrue statement or omission was made as a result of an
error in (x) the manipulation of, or (y) any calculations based upon, or (z) any
aggregate (other than an aggregation made in the Master Tape by the Seller) of,
the information regarding the Mortgage Loans, the related Mortgagors, the
related Mortgaged Properties or the Seller set forth in the Master Tape and
Exhibit A-2 to the Prospectus Supplement, including without limitation the
aggregation of such information with comparable information relating to the
mortgage loans conveyed to the Trust by GE Capital Access, Inc. (the "GECA
Mortgage Loans"). This indemnity agreement will be in addition to any liability
which the Seller may otherwise have. The obligation to indemnify does not
include or incorporate herein the cure or repurchase obligation of the Seller.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 333-32019 filed by the Purchaser on Form S-3,
including, without limitation, all exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated June 15,
1998, as supplemented by the prospectus supplement dated June 18, 1998 (the
"Prospectus Supplement"), relating to the Registered Certificates, including,
without limitation, all annexes and exhibits thereto; "Memorandum" shall mean
the private placement memorandum dated June 18, 1998, relating to the
Non-Registered Certificates, including, without limitation, all annexes and
exhibits thereto; "Computational Materials" shall have the meaning assigned
thereto in the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Securities and Exchange Commission (the "Commission")
to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
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Incorporated, and Kidder Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder letters, the "No-Action Letters"); "Diskette"
shall mean the diskette attached to each of the Prospectus and the Memorandum;
and "Master Tape" shall mean the compilation of information and data regarding
the Mortgage Loans and the GECA Mortgage Loans covered by the Independent
Accountants Report on Applying Agreed Upon Procedures dated June ___,1998 and
rendered by Arthur Anderson LLP.
(b) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under this Section 8, except to the extent that it has been prejudiced in any
material respect, or from any liability which it may have, otherwise than under
this Section 8. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party and the indemnifying
party and the indemnified party or parties shall have reasonably concluded that
there may be legal defenses available to it or them and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party for legal or other expenses incurred by the indemnified
party in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with one local counsel, if
applicable), approved by the Purchaser in the case of subsection (a),
representing the indemnified parties under subsection (a) of this Section 8 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 in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party;
and except that if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or (iii). Unless
it shall assume the defense of any proceeding, the indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
or parties from and against any loss or liability by reason of such settlement
or judgment. If the indemnifying party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the indemnified
party or parties in connection with all claims which have been asserted against
the indemnified party or parties in such proceeding by the other parties to such
settlement, and shall be entitled to settle such proceeding without the consent
of the indemnified party or parties, provided that the indemnified party or
parties
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receive a full and unconditional release of all claims asserted against it in
such proceeding by the other parties to such settlement.
(c) If the indemnification provided for in this Section 8 shall for any
reason be unavailable in accordance with its terms to an indemnified party under
this Section 8, then the Seller and the Purchaser shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) above, in such proportion
as is appropriate to reflect the relative fault of the Seller on the one hand
and the Purchaser on the other in connection with the statement or omission that
result in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Seller of the Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this subsection (c)
were determined by per capital allocation or by any other method of allocation
which does not take account of the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to above shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim which is the
subject of this subsection (c) subject to the limitations therein provided under
subsection (c). 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.
(d) The indemnity and contribution agreements contained in this Section 8
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any of the indemnified parties, and (iii) acceptance of and payment for the
Mortgage Loans.
9. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Purchaser, will be sent by regular prepaid
U.S. Mail or prepaid reputable overnight courier or delivered by hand and
confirmed to it at 277 Park Avenue, 9th Floor, New York, New York 10172,
Attention: N. Dante LaRocca, or such other address as may be designated by the
Purchaser to the Seller in writing, or, if sent to the Seller, will be sent by
regular prepaid U.S. Mail or prepaid reliable overnight courier or delivered by
hand and confirmed to it at 3414 Peachtree Road, N.E., Suite 1140, Atlanta,
Georgia 30326-1113, Attention: President, or such other address as may be
designated by the Seller to the Purchaser in writing.
10. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may not be changed in any manner which would have a
material adverse effect on Holders of the Certificates without the prior written
consent of the Trustee. This Agreement also may not be changed in any manner
which would have a material adverse effect on any other third party beneficiary
hereof without the prior written consent of that person. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
in Sections 3(a), 3(b), 3(d), 8 and 11 hereof.
11. Third Party Beneficiaries.
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(a) The Trustee and the Certificateholders are intended third party
beneficiaries of the representations, warranties and covenants made by the
Seller in Sections 2, 3(a), 3(b), 3(d), 4 and the second paragraph of Section 7
(and, to the extent relevant to the foregoing, in Sections 10, 12, 13, 14, 15,
16 and 19) of this Agreement. It is acknowledged that such representations,
warranties and covenants of the Seller may be enforced by the Trustee against
the Seller, on behalf of itself and the Certificateholders, to the same extent
as if they were parties hereto.
(b) The Underwriter is an intended third party beneficiary of the
representations, warranties and covenants of the Seller set forth in Sections 5,
6 and 8 (and, to the extent relevant to the foregoing, in Sections 10, 13, 14,
15 and 16) of this Agreement. It is acknowledged and agreed that such
representations, warranties and covenants may be enforced by or on behalf of the
Underwriter against the Seller to the same extent as if it was a party hereto.
(c) Each of the officers, directors, employees, agents, controlling persons
and affiliates of the Purchaser referred to in Section 8 hereof is an intended
third party beneficiary of the representations, warranties, covenants and
indemnities of the Seller set forth in Sections 8 (and, to the extent relevant
to the foregoing, in Sections 10, 13, 14, 15 and 16) of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of any such person or entity against
the Seller to the same extent as if such person or entity was a party hereto.
12. Characterization. It is the express intent of the parties hereto that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. Furthermore, it is not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to secure a debt or other obligation of the Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Seller then: (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of the Mortgage Loans in accordance with the terms thereof
(other than scheduled payments of interest and principal due on or before the
Cut-off Date) and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property; (c) the
assignments by the Purchaser to the Trustee of its interests in the Mortgage
Loans as contemplated by Section 4(d) hereof shall be deemed to be an assignment
of any security interest created hereunder; (d) the possession by the Purchaser
or any successor thereto of the related Mortgage Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the [Georgia]
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (e) notifications to, and acknowledgments, receipts or
confirmations from, persons or entities holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser or any
successor thereto for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement.
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13. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser (and by the Purchaser to the Trustee), notwithstanding any restrictive
or qualified endorsement or assignment in respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or is held to be void or unenforceable in any particular jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties hereto waive any
provision of law which prohibits or renders void or unenforceable any provi sion
hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement will be governed
by and construed in accordance with the substantive laws of the State of New
York, applicable to agreements made and to be performed entirely in said state.
The Seller hereby irrevocably (i) submits to the jurisdiction of any federal
courts sitting in New York City with respect to matters arising out of or
relating to this Agreement (or, if federal jurisdiction does not apply, then New
York State courts); (ii) agrees that all claims with respect to such action or
proceeding may be heard and determined in such New York State or federal courts;
(iii) waives, to the fullest possible extent, the defense of an inconvenient
forum; and (iv) agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
16. Further Assurances. The Seller and the Purchaser agree to execute and
deliver such instruments and take such further actions as the other party may,
from time to time, reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
17. Successors and Assigns. The rights and obligations of the Seller 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 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 (other than Section 8), in whole or in part, as contemplated by
Section 4(d) or as may otherwise be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
18. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document, shall verify the accuracy thereof.
19. Cross-Collateralized Mortgage Loans. Notwithstanding anything herein to
the contrary, it is hereby acknowledged that certain groups of Mortgage Loans
identified on the
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<PAGE>
Mortgage Loan Schedule as being cross-collateralized with each other, are, in
the case of each such particular group of Mortgage Loans (each, a
"Cross-Collateralized Group"), evidenced by a single mortgage note and secured
by mortgages, deeds of trust and/or deeds to secure debt on all the Mortgaged
Properties identified on the Mortgage Loan Schedule as corresponding to such
Cross-Collateralized Group. Each such Mortgage Loan actually represents a
portion of the entire indebtedness evidenced by the related mortgage note that
has been allocated to the Mortgaged Property identified on the Mortgage Loan
Schedule as corresponding to such Mortgage Loan. Each of the Mortgage Loans
constituting each such Cross-Collateralized Group shall be deemed to be a
separate Mortgage Loan that is (a) evidenced by a mortgage note identical to the
mortgage note that evidences such Cross-Collateralized Group (but in a principal
amount equal to the principal balance allocated to such Mortgage Loan) and (b)
cross-defaulted and cross-collateralized with each other Mortgage Loan in such
Cross- Collateralized Group. In addition, it is hereby acknowledged that certain
other groups of Mortgage Loans identified on the Mortgage Loan Schedule as being
cross-collateralized with each other, are, in the case of each such particular
group of Mortgage Loans (each, also a "Cross-Collateralized Group"), by their
terms, cross-defaulted and cross-collateralized. For purposes of reference, the
Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including, without limitation, each of the representations and warranties set
forth in Exhibit C hereto and each of the capitalized terms used herein but
defined in the Pooling and Servicing Agreement, shall be interpreted in a manner
consistent with this Section 19. In addition, if there exists with respect to
any Cross-Collateralized Group only one original of any document referred to in
the definition of "Mortgage File" and covering all the Mortgage Loans in such
Cross- Collateralized Group, the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
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<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
COLUMN FINANCIAL, INC.
By:_______________________________
Name:
Title:
DLJ COMMERCIAL MORTGAGE
CORP.
By: _______________________________
Name:
Title:
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<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller
with Respect to the Mortgage Loans
The documents and instruments to be delivered to the Trustee (or a
Custodian on behalf of the Trustee) in respect of each Mortgage Loan pursuant to
Section 2(a) of this Agreement are, subject to Section 19, as follows:
(i) the original executed Mortgage Note, endorsed (without recourse) to the
order of Norwest Bank Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1;
(ii) an original or copy of the Mortgage and of any intervening assignments
thereof that precede the assignment referred to in clause (iv) below, in
each case (unless such document has not yet been returned from the
applicable recording office) with evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such item
is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
below, in each case (unless such document has not yet been returned from
the applicable recording office) with evidence of recording indicated
thereon;
(iv) an original executed assignment of the Mortgage, in favor of Norwest
Bank Minnesota, National Association, as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1, in recordable form;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in favor of Norwest Bank
Minnesota, National Association, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1, in recordable form;
(vi) originals or copies of any written assumption, modification and
substitution agreements in those instances where the terms or provisions of
the Mortgage or Mortgage Note have been modified or the Mortgage Loan has
been assumed;
(vii) the original or a copy of the policy or certificate of lender's title
insurance issued on the date of the origination of such Mortgage Loan, or,
if such policy has not been issued, a pro forma policy or an irrevocable,
binding commitment to issue such title insurance policy;
(viii) filed copies of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC-2 or
UCC-3, as appropriate, in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-CG1;
<PAGE>
(ix) any environmental indemnity agreement, property management agreement,
ground lease, intercreditor agreement, cash management agreement and
lock-box agreement relating to such Mortgage Loan; and
(x) any original documents relating to Additional Collateral.
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<PAGE>
Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a Delaware corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business, is
duly qualified as a foreign corporation in good standing in all jurisdictions in
which the ownership or lease of its property or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the ability of the Seller to perform its
obligations hereunder, and the Seller has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement by it,
and has the corporate power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign, transfer, set over and
convey the Mortgage Loans in accordance with this Agreement;
(b) This Agreement has been duly authorized, executed and delivered by the
Seller and assuming its due authorization, execution and delivery by the
Purchaser, will constitute a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
or by public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(c) The execution and delivery of this Agreement by the Seller and the
performance of its obligations hereunder (1) will not conflict with any
provision of any law or regulation to which the Seller is subject, or conflict
with, result in a breach of or constitute a default under any of the terms,
conditions or provisions of any of the Seller's organizational documents or any
agreement or instrument to which the Seller is a party or by which it is bound,
or any order or decree applicable to the Seller, or any order or decree
applicable to the Seller, or result in the creation or imposition of any lien on
any of the Seller's assets or property, in each case which would materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement; and (2) does not require the consent of any
third party or such consent has been obtained;
(d) There is no action, suit, proceeding or investigation pending or, to
the knowledge of the Seller, threatened against the Seller in any court or by or
before any other governmental agency or instrumentality which, in the Seller's
good faith and reasonable judgment, would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Seller to enter into, and
carry out the transactions contemplated by, this Agreement;
(e) The Seller is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that, in the Seller's
good
<PAGE>
faith and reasonable judgment, would materially and adversely affect the
condition (financial or otherwise) or operations of the Seller or its properties
or might have consequences that would materially and adversely affect its
performance hereunder;
(f) 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 this Agreement or
the consummation of the transactions contemplated by this Agreement, other than
those which have been obtained by the Seller;
(g) The transfer, assignment and conveyance of the Mortgage Loans by the
Seller to the Purchaser is not subject to any bulk transfer laws or any similar
statutory provisions in effect in any applicable jurisdiction;
(h) The principal place of business and chief executive office of the
Seller is located in Atlanta, Georgia.
(i) The Seller is a wholly-owned subsidiary of DLJ Mortgage Capital, Inc.
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<PAGE>
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge" and
other words and phrases of like import shall mean the actual state of knowledge
of the Seller regarding the matters referred to, in each case without having
conducted any independent inquiry into such matters and without any obligation
to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is complete, true and correct in all
material respects as of the date of this Agreement and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer to the
Purchaser of the Mortgage Loans, the Seller had good and marketable title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to the Purchaser or its designee all of the Seller's legal and
beneficial interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. The sale
of the Mortgage Loans to the Purchaser or its designee does not require the
Seller to obtain any governmental or regulatory approval or consent that has not
been obtained.
3. Payment Record. As of the Closing Date, no scheduled payment of
principal and interest under any Mortgage Loan was thirty (30) days or more past
due, and no Mortgage Loan has been thirty (30) days or more delinquent in the
twelve-month period immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, none of which materially interferes
with the security intended to be provided by such Mortgage, the current use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy, none of which materially interferes with the security intended
to be provided by such Mortgage, the current use of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan, (d) other matters to
which like properties are commonly subject, none of which materially interferes
with the security intended to be provided by such Mortgage, the use of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, and
(e) if such Mortgage Loan is a Cross-Collateralized Mortgage Loan, the lien of
the Mortgage for another Mortgage Loan in the same Cross-Collateralized Group
(the foregoing items (a) through (e) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage
<PAGE>
executed and delivered in favor of the Trustee is in recordable form and,
subject to the exceptions set forth in Paragraph 13 below, constitutes a legal,
valid 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 Mortgage.
Such Mortgage, together with any separate security agreements, chattel mortgages
or equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, and such security interest is only subject to any prior purchase money
security interest in such personal property, any personal property leases
applicable to such personal property and any security interest in such personal
property granted in connection with another Mortgage Loan.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the related Mortgaged Property, and each assignor
thereunder has the full right to assign the same. The related assignment of such
Assignment of Leases executed and delivered in favor of the Trustee is in
recordable form and, subject to the exceptions set forth in Paragraph 13 below,
constitutes a legal, valid 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. To the Seller's knowledge, no person owns
any interest in any payments due under the related leases that is superior to
the lien created by such Assignment of Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage related to a
Mortgage Loan has been satisfied, canceled, rescinded or subordinated in whole
or in material part, and the related Mortgaged Property has not been released
from the lien of such Mortgage, in whole or in material part, nor has any
instrument been executed that would effect any such satisfaction, cancellation,
subordination, rescission or release. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases related to a Mortgage Loan have been impaired,
waived, altered or modified in any respect, except by written instruments, all
of which are included in the related Mortgage File. No Mortgage Loan has been
modified in any manner such that the terms of such Mortgage Loan, as so
modified, are materially (and adversely to the owner thereof) different from the
terms of such Mortgage Loan described in the Prospectus.
7. Condition of Property; Condemnation. Each Mortgaged Property securing a
Mortgage Loan is, to the Seller's knowledge, based on its review of the most
recent inspection report (which, if prepared by a servicer of such Mortgage
Loan, was so prepared in accordance with the related servicing agreement), free
and clear of any damage that would materially and adversely affect its value as
security for such Mortgage Loan. The Seller has not received notice (and is not
otherwise aware) of any proceeding pending for the total or partial condemnation
of or affecting the Mortgaged Property securing any Mortgage Loan. To the
Seller's knowledge, as of the date of the origination of each Mortgage Loan, all
of the material improvements on the related Mortgaged Property lay wholly within
the boundaries and building restriction lines of such property, except for
encroachments that are insured against by the lender's title insurance policy
referred to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property.
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<PAGE>
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") in the original principal
amount of such Mortgage Loan after all advances of principal insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the exceptions stated therein (or a pro forma title policy or
marked up title insurance commitment on which the required premium has been paid
exists which evidences that such Title Policy will be issued). Such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder (and the Seller has not received notice of any material claims
having been made or paid thereunder). No holder of the related Mortgage has
done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. The insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located, and with respect to at least a majority
of the Mortgage Loans (by outstanding principal balance as of the Cut-off Date)
such insurer is a nationally recognized title insurer. Such Title Policy
contains no exclusion for, or it affirmatively insures, (a) access to a public
road, (b) that there are no material encroachments of any part of the
improvements on the related Mortgaged Property over easements, which
encroachments could reasonably be expected to materially interfere with the use
of the related Mortgaged Property (unless the related Mortgaged Property is
located in a jurisdiction where such affirmative insurance is not available) and
(c) that the area shown on the survey conducted in connection with the
origination of the related Mortgage Loan is the same as the property legally
described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been made but a portion thereof is being held back pending the satisfaction of
certain leasing or other economic criteria with respect to the related Mortgaged
Property), and there is no obligation for future advances with respect thereto.
Any and all requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds escrowed
for such purpose, which requirements were to have been complied with on or
before the Closing Date, have been complied with or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in Paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect of any Mortgage
Loan is a deed of trust, (a) a trustee, duly qualified under applicable law to
serve as such, is properly designated and serving under such Mortgage, and (b)
except in connection with a trustee's sale after default by the related
Mortgagor, no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof.
12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and either (x) no
such Environmental Report reveals any known circumstances or conditions with
respect to the related Mortgaged Property that
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<PAGE>
rendered such Mortgaged Property, at the date of such Environmental Report, in
material violation of any applicable environmental laws or (y) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then either (i) the
expenditure of funds necessary to effect such remediation is not material in
relation to the outstanding principal balance of the related Mortgage Loan, an d
such remediation would not materially adversely affect the value of the
Mortgaged Property, or (ii) a sufficient escrow of funds exists for purposes of
effecting such remediation, or (iii) the related Mortgagor or other responsible
party is currently taking such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable governmental
regulatory authority. To the Seller's knowledge, there are no circumstances or
conditions with respect to such Mortgaged Property not revealed in such
Environmental Report that render such Mortgaged Property in material violation
of any applicable environmental laws. The Mortgage encumbering such Mortgaged
Property requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Mortgagor with respect to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency legislation),
and each assignment of Mortgage and assignment of Assignment of Leases executed
by the Seller is the legal valid and binding obligation of the Seller, and each
such Mortgage Note, Mortgage and other agreement and each such assignment of
Mortgage and assignment of Assignment of Leases is enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law), and
there is no valid defense, counterclaim or right of offset or rescission
available to the related Mortgagor with respect to such Mortgage Note, Mortgage
or other agreements.
14. Insurance. All improvements upon each Mortgaged Property securing a
Mortgage Loan are insured, pursuant to the terms of such Mortgage Loan requiring
such insurance (or requiring such insurance as the holder of the Mortgage may
reasonably require), against loss by hazards of extended coverage in an amount
at least equal to the lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full replacement cost of the improvements located
on the related Mortgaged Property, and if applicable, the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. Each Mortgaged Property securing a Mortgage Loan is the subject of
a business interruption insurance policy providing coverage for at least six (6)
months. If any portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Flood Emergency Management Agency
as having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable value of such Mortgaged Property, and (3) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended.
All such hazard and flood insurance policies contain a standard "New York"
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without prior written notice to the
mortgagee, and all premiums payable thereon as of the Closing Date, whether
annual or otherwise, have been paid. Each
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<PAGE>
Mortgaged Property securing a Mortgage Loan is also covered by commercial
general liability insurance in an amount at least equal to $1 million per
occurrence. Each Mortgage requires that the Mortgagor maintain insurance as
described above or permits the mortgagee to require insurance as described
above. No notice of termination, cancellation or reduction has been received by
the Seller with respect to any such hazard, flood or liability insurance policy.
The Mortgage for each Mortgage Loan provides that proceeds paid under any such
casualty insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan , except to the extent that (i)
the Mortgage entitles the Mortgagor to any portion of such proceeds remaining
after the repair or restoration of the Mortgaged Property and payment of amounts
due under the Mortgage Loan, and (ii) the Mortgagor's interest in the Mortgaged
Property is a leasehold interest (in which case, the provisions of the Mortgage
Loan documents relating to the application of the proceeds of casualty insurance
policies are as described in Item 19(i) or 20(i)).
15. Taxes and Assessments. To the Seller's knowledge, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan which are or may become a lien of priority
equal to or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is, to the
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Local Law Compliance. To the best of the Seller's knowledge based on
due diligence customarily undertaken by prudent institutional mortgage lenders,
the improvements located on or forming part of each Mortgaged Property securing
a Mortgage Loan comply with applicable zoning laws and ordinances, or constitute
a legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property.
18. Leasehold Estate Only. If "Leasehold" is set forth opposite the name of
the related Mortgaged Property on the Mortgage Loan Schedule (other than with
respect to the Mortgaged Properties identified on the Mortgage Loan Schedule as
Fairfield Inn-Tuscaloosa and Marriott by Courtyard Tuscaloosa), such Mortgage
Loan is secured by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease") (with respect to Representations 18,
19 and 20, the term "Ground Lease" shall mean the applicable ground lease, all
written amendments and modifications and any related estoppels or agreements
from the ground lessor), but not by the related fee interest in such Mortgaged
Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and
there has been no material change in the terms of such Ground
Lease since its recordation, with the exception of written
instruments which are a part of the related Mortgage File;
(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
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<PAGE>
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(d) At the date of origination, such Ground Lease is in full force
and effect, and the Seller has not received notice (nor is the
Seller otherwise aware) that any default has occurred under such
Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee (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 received by the mortgagee
from the lessor, 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 in the manner
described in such Ground Lease;
(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 either (i) has an original term which extends
not less than ten (10) years beyond the Stated Maturity Date of
the related Mortgage Loan or (ii) has an original term which does
not end prior to 3 years following the Stated Maturity Date of
the related Mortgage Loan and has extension options that, if
exercised by the related Mortgagor, cause the term of such Ground
Lease to extend not less than (10) years beyond the Stated
Maturity Date of the related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any
reason, including rejection of such Ground Lease in a bankruptcy
proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds (other than in
respect of a total or substantially total loss or taking) will be
applied either (i) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon; and
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and such Ground Lease contains a
covenant that the
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<PAGE>
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of any lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided by
the related Mortgage.
19. Sub-Leasehold Estate. With respect to each of the Mortgage Loans
secured by the Mortgaged Property identified on the Mortgage Loan Schedule as
Fairfield Inn- Tuscaloosa and the Mortgage Loan secured by the Mortgaged
Property idenitifed on the Mortgage Loan Schedule as Marriott by Courtyard
Tuscaloosa, such Mortgage Loan is secured in whole or in part by the interest of
the related Mortgagor under a ground sub-lease of the related Mortgaged Property
(a "Ground Sub-Lease") (with respect to this Representation 19, the term "Ground
Sub-Lease" shall mean such ground sub-lease, all written amendments and
modifications, and any related estoppels or agreements from the ground
sub-lessor) and not by the related Fee Interest and:
(a) (i) Such Ground Sub-Lease or a memorandum thereof has been or
will be duly recorded; such Ground Sub-Lease (or an estoppel
letter executed by the sublessor) permits the interest of the
sub-lessee thereunder to be encumbered by the related Mortgage;
and there has been no material change in the terms of such Ground
Sub-Lease since its recordation, with the exception of written
instruments which are a part of the related Mortgage File; and
(ii) the ground lease under which the sublessor holds its
leasehold interest (for purposes of this Section 19, the related
"Ground Lease") or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or an estoppel letter executed by
the related lessor) permits the lessee thereunder to sublease the
related leasehold estate (or the sublessor consented to the
execution and delivery of the Ground Sub- Lease); and there has
been no material change in the terms of such Ground Lease since
its recordation, with the exception of written instruments which
are a part of the related Mortgage File;
(b) (i) The related Fee Interest and any existing mortgage or other
lien thereon (other than any Permitted Encumbrance) is subject to
the rights of the lessee under the related Ground Lease and the
Ground Lease does not provide for, and the ground lessee has not
otherwise agreed to, the subordination of the rights of the
lessee thereunder to any future mortgage or other lien on such
related Fee Interest; and (ii) the related Ground Lease and any
mortgage or other lien thereon (other than any Permitted
Encumbrance) is subject to the rights of the ground sub-lessee
under such Ground Sub-Lease and the Ground Sub-Lease does not
provide for, and the ground sub-lessee has not otherwise agreed
to, the subordination of the rights of the lessee thereunder to
any future mortgage or other lien on the leasehold estate created
by the related Ground Lease;
(c) Under the terms of such Ground Sub-Lease and the Ground Lease,
the mortgagee has the right, if it succeeds by foreclosure,
exercise of power of sale or any other method, to assign its
interests in such Ground Sub-Lease without the prior written
consent of the ground sublessor;
(d) (i) At the date of origination of such Mortgage Loan, such Ground
SubLease is in full force and effect, and the Seller has not
received notice (and the Seller has no knowledge) that any
default has occurred under such Ground Sub-Lease and (ii) at the
date of origination of such Mortgage
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<PAGE>
Loan, the related Ground Lease is in full force and effect and
the Seller has not received notice (and the Seller has no
knowledge) that any default has occurred under the related Ground
Lease;
(e) (i) Under such Ground Sub-Lease (or an estoppel letter or other
agreement between the Seller and the related ground sublessor),
the ground sub-lessor has agreed to give to the mortgagee a copy
of any notice given by such ground sublessor of any event of
default under the terms of such Ground Sub-Lease and such Ground
Sub-Lease, or an estoppel letter received by the mortgagee from
the lessor, further provides that no notice of termination given
under such Ground Sub-Lease is effective against the mortgagee
unless a copy has been delivered to the mortgagee in the manner
described in such Ground Sub-Lease and (ii) under the related
Ground Lease (or an estoppel letter or other agreement between
the Seller and the related lessor), the ground lessor thereunder
has agreed to give to the mortgagee a copy of any notice given by
such ground lessor of any default by the ground lessee and such
Ground Lease, or an estoppel letter received by the mortgagee
from the lessor, 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 in the manner
described in such Ground Lease;
(f) (i) Under the terms of the Ground Sub-Lease (or an estoppel
letter or other agreement between the Seller and the related
ground sublessor), the related ground sublessor has agreed to
extend to the mortgagee the opportunity to cure any default under
such Ground Sub-Lease, within thirty (30) days following written
notice that the Mortgagor has failed to cure such default, before
the ground sublessor will take any further action under the terms
of such Ground Sub-Lease; and (ii) under the related Ground Lease
(or an estoppel letter or other agreement between the Seller and
the related ground lessor), the related ground lessor has agreed
to extend to the mortgagee the opportunity to cure any default
under such Ground Lease, within thirty (30) days following
written notice that the Mortgagor has failed to cure such
default, before the ground lessor will take any further action
under the terms of such Ground Lease;
(g) (i) Each of such Ground Sub-Lease and such Ground Lease either
(A) has an original term which extends not less than ten (10)
years beyond the stated Maturity Date of the related Mortgage
Loan or (B) has an original term which does not end prior to 3
years following the stated Maturity Date of the related Mortgage
Loan and has extension options that, if exercised by the related
Mortgagor, cause the term of such Ground Sub- Lease or such
Ground Lease (as the case may be) to extend not less than ten
(10) years beyond the stated Maturity Date of the related
Mortgage Loan; (ii) under such Ground Sub-Lease (or an estoppel
letter or other agreement between the Seller and the ground
sub-lessor), the ground sub- lessor has agreed that the mortgagee
shall have the right pursuant to such Ground Sub-Lease to
exercise any option to renew the term of the Ground Sub-Lease if
the ground sub-lessee fails to do so; and (iii) under the related
Ground Lease (or an estoppel letter or other agreement between
the Seller and the related ground lessor), the related ground
lessor has agreed that the mortgagee shall have the right
pursuant to such Ground Lease to exercise any option to renew the
term of the Ground Lease if the ground lessee fails to do so;
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<PAGE>
(h) (i) Under such Ground Sub-Lease (or an estoppel letter or other
agreement between the Seller and the related ground sub-lessor),
the ground sub- lessor has agreed that the provisions of the
related Mortgage shall control as to the application and
distribution of insurance proceeds or proceeds of any exercise of
powers of eminent domain payable in connection with the related
Mortgaged Property; provided, however, that the proceeds of an
award for a taking by eminent domain which represents the ground
sub- lessor's interest in the property so taken shall be payable
to such ground sub-lessor; and (ii) under the related Ground
Lease (or an estoppel letter or other agreement between the
Seller and the related ground lessor), the related ground lessor
has agreed that the provisions of the related Mortgage shall
control as to the application and distribution of insurance
proceeds or proceeds of any exercise of powers of eminent domain
payable in connection with the related Mortgaged Property;
(i) (i) Under such Ground Sub-Lease (or an estoppel letter or other
agreement between the Seller and the related ground sub-lessor),
the related ground sub-lessor has confirmed that the Ground
Sub-Lease shall not be modified, terminated or cancelled, nor
shall a surrender of the related premises be accepted without the
prior written consent of the mortgagee; and (ii) under the
related Ground Lease (or an estoppel letter or other agreement
between the Seller and the related ground lessor), the related
ground lessor has confirmed that the Ground Lease shall not be
modified, waived, terminated or cancelled, nor shall a surrender
of the related property be accepted without the prior written
consent of the mortgagee.
(j) Such Ground Sub-Lease requires the ground sub-lessor to enter
into a new ground sub-lease with a mortgagee upon termination of
such Ground Lease for any reason, including rejection of such
Ground SubLease in a bankruptcy proceeding; and
(k) Such Ground Sub-Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
a prudent commercial mortgage lender and such Ground Lease
contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any lessee in the relevant portion
of the Mortgaged Property subject to such Ground Sub-Lease for
any reason, or in any manner, which would materially adversely
affect the security provided by the related Mortgage.
20. Leasehold Estate and Fee Interest. If "Fee/Leasehold" is set forth
opposite the name of the related Mortgaged Property on the Mortgage Loan
Schedule, such Mortgage Loan is secured in whole or in part by the interest of
the related Mortgagor under a Ground Lease and by the related Fee Interest and:
(a) Such Fee Interest is subject, and subordinated of record, to the
related Mortgage; and the related Mortgage does not by its terms
provide that it will be subordinated to the lien of any other
mortgage or other lien upon such Fee Interest; and
(b) Upon occurrence of a default under the terms of the related
Mortgage by the Mortgagor, the mortgagee has the right to
foreclose upon or otherwise exercise its rights with respect to
such Fee Interest within a
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<PAGE>
period of time that would not have been viewed, as of the date of
origination, as commercially unreasonable by a prudent commercial
mortgage lender.
21. Escrow Deposits. With respect to escrow deposits and payments relating
to any Mortgage Loan, all such payments have been delivered to the Servicer, and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made.
22. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
23. Advancement of Funds. No holder of a Mortgage Loan has, 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, directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
24. Equity Interest. No Mortgage Loan is automatically convertible into an
equity ownership interest in the related Mortgaged Property or the related
Mortgagor.
25. Legal Proceedings. To the Seller's knowledge, there are no pending or
threatened actions, suits or proceedings by or before any court or governmental
authority against or affecting the Mortgagor under any Mortgage Loan 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.
26. Junior Liens. Except as otherwise described on Schedule C-1, none of
the Mortgage Loans permits 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. To the Seller's
knowledge, based on a review of the related Title Policy, except as otherwise
specified on Schedule C-1 or in the Prospectus Supplement, and except for cases
involving other Mortgage Loans, the Mortgaged Properties are not encumbered by
any liens junior to the liens of the related Mortgages. In each of the cases
described on Schedule C-1, where a Mortgaged Property securing a Mortgage Loan
is further encumbered by a junior lien, the loan secured by such junior lien is
subject to a subordination and standstill agreement that subordinates such loan
and prohibits the related junior creditor from pursuing any remedies for default
or causing any bankruptcy proceeding while such Mortgage Loan is outstanding.
Except in cases involving other Mortgage Loans, the Mortgaged Properties are not
encumbered by any liens of equal priority with the liens of the related
Mortgages.
27. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan is free and clear of any and all mechanics'
and materialmen's liens that are not bonded or escrowed for, and (ii) no rights
are outstanding that under law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage. The Seller has not received
notice with respect to any Mortgage Loan that any mechanics' and materialmen's
liens have encumbered the related Mortgaged Property since origination that have
not been released, bonded or escrowed for.
28. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
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<PAGE>
29. Licenses and Permits. To the Seller's knowledge, based on due diligence
customarily performed by commercially reasonable lenders in the origination of
comparable mortgage loans, as of the date of origination of each Mortgage Loan,
(i) the related Mortgagor was in possession of all material licenses, permits
and authorizations required by applicable law for the ownership and operation of
the related Mortgaged Property and (ii) all such licenses, permits and
authorizations were valid and in full force and effect.
30. Servicing Practices. The servicing and collection practices used with
respect to the Mortgage Loans have in all material respects been legal and met
customary standards utilized by prudent institutional commercial and multifamily
mortgage loan master servicers.
31. Cross-collateralization. No Mortgage Loan is cross-collateralized with
any loan other than one or more other Mortgage Loans.
32. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any portion of the related Mortgaged Property from the lien of the related
Mortgage except upon (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of U.S. Treasury securities in connection with a
defeasance of the related Mortgage Loan. The Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or, in the case of a Cross-Collateralized Group, the release
of one or more related Mortgaged Properties upon (a) the satisfaction of certain
legal and underwriting requirements and (b) the payment of a release price and
prepayment consideration in connection therewith.
33. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
34. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except with
respect to ARD Loans and except for the imposition of a default rate.
35. Inspection. In connection with the origination of each Mortgage Loan,
the Seller inspected, or caused the inspection of, the related Mortgaged
Property.
36. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in any of Paragraphs 3, 7, 12,
14, 15, 16, 17, 20, 24, 25, 26 and 28 of this Exhibit C.
37. Due-on-Sale. Subject to a one-time (or, in the case of certain Mortgage
Loans, a multiple-time) transfer right allowed in accordance with certain
provisions set forth in the Mortgage securing each Mortgage Loan, such Mortgage
contains a "due-on-sale" clause that provides for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
prior written consent of the holder, the Mortgaged Property subject to such
Mortgage, or any interest therein, is directly or indirectly transferred or
sold.
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<PAGE>
38. Single Purpose Entity. The Mortgagor on each Mortgage Loan that,
individually or together with the Mortgage Loans of affiliated Mortgagors,
represented 5% or more of the Initial Pool Balance, was, as of the origination
of the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single
Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
39. Delivery of Mortgage File. The Seller has delivered to the Trustee or a
Custodian appointed thereby, with respect to each Mortgage Loan, in accordance
with Section 2 of this Agreement, a complete Mortgage File (or, with respect to
any missing documents or instruments required to be part of such Mortgage File,
a Trust Receipt).
40. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
41. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan listed on Schedule C-2 attached
hereto is not paid in full by its Anticipated Repayment Date, and assuming that
it is not otherwise in default, the rate at which such ARD Loan accrues interest
will increase by two percentage points over the original Mortgage Rate.
42. No Waivers. The Seller has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note, except by a written instrument contained in the Mortgage File.
43. Originator Authorized. To the extent required under applicable law as
of the Closing Date, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it held the Mortgage Loan to the extent necessary to ensure
the enforceability of such Mortgage Loan.
44. Defeasance Provision. Any Mortgage Loan which contains a provision for
any defeasance of mortgage collateral either (A) requires the consent of the
holder of the Mortgage Loan to any defeasance or (B) permits defeasance (i) no
earlier than two years following the Closing Date, (ii) only with substitute
collateral constituting "government securities" within the meaning of Treas.
Reg. Section 1.860G-2(a)(8)(i) and (iii) only to facilitate the disposition of
mortgage real property and not as part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages.
45. Tax Parcels. Each Mortgaged Property constitutes one or more complete
and separate tax lots.
46. Monthly Payment. Each Mortgage Loan has a Monthly Payment due on July
1, 1998, which is required to include interest for an entire month (as
determined on a 30/360 basis or an actual/360 basis, whichever basis applies
under the terms of such Mortgage Loan).
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<PAGE>
47. Fee Interest. If "Fee" is set forth opposite the name of the related
Mortgaged Property on the Mortgage Loan Schedule, the interest of the related
Mortgagor in such Mortgaged Property is a fee simple interest in real property.
48. Collateral. The Mortgage Note is not secured by any collateral that is
not conveyed pursuant to this Agreement.
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<PAGE>
SCHEDULE C-1
EXCEPTIONS TO CERTAIN REPRESENTATIONS AND WARRANTIES
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<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-CG1
Certificate of Secretary of Column Financial, Inc.
I, ____________________, a Secretary of Column Financial, Inc. ("Column")
hereby certify as follows:
1. Column is duly incorporated and in good standing under the laws of the
State of Delaware.
2. Attached hereto as Exhibit I are true and correct copies of the Articles
of Incorporation and By-Laws of Column, which Articles of Incorporation and
By-Laws are on the date hereof, and have been at all times, in full force and
effect.
3. To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of Column are pending or contemplated.
4. Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of Column and his/her genuine signature is set
forth opposite his/her name:
Name Office Signature
___________________ ________________ ____________________
___________________ ________________ ____________________
5. Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase and Sale Agreement, dated as of June ___,
1998 (the "Agreement"), between DLJ Commercial Mortgage Corp. ("DLJCMC") and
Column, or any certificate delivered pursuant thereto, was, at the time of such
signing and delivery, duly authorized or appointed to execute such document in
such capacity, and the signatures of such persons or facsimiles thereof
appearing on such document are their genuine signatures.
6. Attached hereto as Exhibit II is a true and correct copy of the
resolutions of the Board of Directors of Column enacted on _______________
authorizing the Agreement and the consummation of the transactions contemplated
thereby. Such resolutions have not been rescinded and, as of the date hereof,
remain in full force and effect.
Capitalized terms used but not defined herein have the respective meanings
given to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
___________, 1998.
----------------
<PAGE>
Name:
Title: Secretary
I, _______________, a ____________________ of Column, hereby certify that
__________________ is a duly elected or appointed, as the case may be, qualified
and acting Secretary of Column and that the signature appearing above is such
officer's genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
___________, 1998.
--------------------------------
Name:
Title:
-2-
<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-CG1
Certificate of Column Financial, Inc.
In connection with the execution and delivery by Column Financial, Inc.
("Column") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase and Sale Agreement, dated as of June 18,
1998 (the "Agreement"), between DLJ Commercial Mortgage Corp., as purchaser, and
Column, as seller, the undersigned hereby certifies that (i) the representations
and warranties of Column in the Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, (ii) Column has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part required under the
Agreement to be performed or satisfied at or prior to the date hereof, and (iii)
Column has reviewed and approved the information set forth in each of the
Prospectus Supplement and the Memorandum under the caption "Description of the
Mortgage Pool" and elsewhere in the Prospectus Supplement and the Memorandum
with respect to the subjects discussed under such caption in each, as well as
the information set forth on Exhibits A-1 and A-2 to the Prospectus Supplement,
and, insofar as such information relates to the Mortgage Loans, the related
Mortgagors or the related Mortgaged Properties such information did not, as of
the date of the Prospectus Supplement and the Memorandum, and does not, as of
the date hereof, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (provided
that Column makes no certification as to whether such information included or
includes any untrue statement of a material fact with respect to GECA, the GECA
Mortgage Loans, the Column Third Party Originators and/or the Column Third Party
Mortgage Loans or omitted or omits to state a material fact with respect
thereto). Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Agreement.
Certified this ____ day of _______, 1998.
COLUMN FINANCIAL, INC.
By:________________________________________
Name:
Title:
<PAGE>
Exhibit D-3
Opinion of Counsel to the Seller
___________, 1998
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, N.Y. 10172
Norwest Bank Minnesota, National Association
3 New York Plaza
15th Floor
New York, NY 10004
Standard & Poor's Rating Services, A Division of
the McGraw-Hill Companies, Inc.
26 Broadway, 10th Floor
New York, NY 10004
Fitch Investors Service, L.P.
One State Street Plaza
New York, NY 10004
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1
Ladies and Gentlemen:
We have acted as counsel to Column Financial, Inc. (the "Seller") in
connection with the sale of certain mortgage loans (the "Mortgage Loans") by the
Seller to DLJ Commercial Mortgage Corp. ("DLJCMC"), pursuant to a Mortgage Loan
Purchase and Sale Agreement, dated as of __________, 1998 (the "Agreement"),
between the Seller and DLJCMC. This opinion is being delivered to you pursuant
to the Agreement. Capitalized terms not defined herein have the meanings set
forth in the Agreement.
In rendering this opinion letter, we have examined the Agreement and such
other documents as we have deemed necessary. As to matters of fact, we have
examined and relied upon representations of the Seller contained in the
Agreement and, where we have deemed appropriate, representations or
certifications of parties to the Agreement or public officials. We have assumed
the authenticity of all documents submitted to us as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity to
the originals of all documents submitted to us as copies. We have assumed that
all parties to the Agreement other than the Seller had the corporate power and
authority to enter into and perform all obligations thereunder. As to such
parties other than the Seller, we also have assumed the due authorization by all
requisite corporate action, the due execution and delivery and the
enforceability of such document. We have further assumed the conformity of the
Mortgage Loans and related
<PAGE>
documents to the requirements of the Agreement and have assumed that the Seller
is the owner of the Mortgage Loans.
Based upon and subject to the foregoing, it is our opinion that:
1. The Seller is a corporation duly incorporated and validly existing and
in good standing under the laws of the State of Delaware and has the requisite
corporate power to own its properties, to conduct its business as presently
conducted by it, to own and to transfer and convey to DLJCMC the Mortgage Loans
and to enter into and perform its obligations under the Agreement.
2. The Agreement has been duly and validly authorized, executed and
delivered by the Seller and constitutes a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its terms.
3. No consent, approval, authorization or order of any State of Georgia,
State of Delaware or federal court or governmental agency or body is required
for the consummation by the Seller of the transactions contemplated by the
Agreement, except for those consents, approvals, authorizations or orders that
previously have been obtained.
4. Neither the transfer of the Mortgage Loans as provided in the Agreement,
nor the fulfillment of the terms of or the consummation of any other of the
transactions contemplated by the Agreement, will result in a breach of any term
or provision of the certificate of incorporation or by-laws of the Seller or any
State of Georgia, State of Delaware or federal statute or regulation applicable
to the Seller, or to our knowledge, will conflict with, result in a breach,
violation or acceleration of or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Seller is a party or by
which it is bound, or any order of any State of Georgia, State of Delaware or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over the Seller.
5. To our knowledge, there are no actions, proceedings, or investigations
pending or threatened against the Seller before any State of Georgia, State of
Delaware or federal court, administrative agency or other tribunal (a) asserting
the invalidity of the Agreement, (b) seeking to prevent the consummation of any
of the transactions contemplated in the Agreement, or (c) that might materially
and adversely affect the performance by the Seller of its obligations under, or
the validity or enforceability of the Agreement.
The opinion set forth above in paragraph 2 as to enforceability is subject
to and limited by the following:
(a) The effect of bankruptcy, insolvency, reorganization, moratorium and
other laws and court decisions of general application (including, without
limitation, laws relating to fraudulent conveyances, preferences and equitable
subordination) and other legal or equitable principles relating to, limiting or
affecting the enforcement of creditors' rights generally; and
(b) The discretion of any court of competent jurisdiction in awarding
equitable remedies, including, but not limited, to specific performance or
injunctive relief.
Where we have rendered our opinion concerning matters "known to us" or this
letter otherwise refers to our knowledge or our attention, such reference shall
mean only the knowledge of [ ], who are the
attorneys in our firm primarily responsible for our services relating to the
Seller, and shall not refer to the knowledge of any other person in any way
associated with this firm. Furthermore, such knowledge refers only to matters of
which the attorneys named above are consciously aware at the time of execution
of this letter,
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<PAGE>
and you are advised that we have made no independent investigation or
verification of such matters and have not searched or reviewed the files and
records of or relating to Seller or such matters in our office, in the public
records, in the possession of Seller, or elsewhere.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of Georgia, the corporate law of the
State of Delaware and the federal law of the United States. In that regard, we
note that the Agreement provides that it is to be governed under the internal
laws of the State of New York. Therefore, our opinion in paragraph 2 above is
rendered on the assumption that pertinent New York law is identical to pertinent
Georgia law, as to the correctness of which assumption we render no opinion.
Further, we express no opinion as to the conflict of laws provisions of the
State of New York, the State of Georgia, or otherwise. We do not express any
opinion concerning the application of the "doing business" laws or the
securities laws of any jurisdiction.
Any and all opinions rendered by this firm in this opinion letter are
limited to the matters expressly set forth herein; and no opinion is implied or
to be inferred beyond the matters expressly so stated. This opinion is given as
of the date hereof, and we expressly decline any undertaking to revise or update
this opinion subsequent to the date hereof or to advise you of any matter
arising subsequent to the date hereof, which would cause us to modify the
opinion, in whole or in part.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person is entitled to rely hereon. Copies of this letter
may not be furnished to any other person, nor may any portion of this letter be
quoted, circulated or referred to in any other document.
Very truly yours,
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<PAGE>
Schedule 1
Mortgage Loan Schedule
<PAGE>
Schedule 2
Third Party Originator Agreements
THIRD PARTY ORIGINATOR THIRD PARTY ORIGINATOR AGREEMENT
---------------------- --------------------------------
1. ARCS Commercial Mortgage Co., Seller's Warranty Certificate dated as of
L.P. ("ARCS") June 18, 1998, from ARCS in favor of DLJ
Mortgage Capital, Inc. ("DLJMCI")
2. ITLA Funding Corporation ("ITLA") Seller's Warranty Certificate dated as of
June 18, 1998, from ITLA in favor of
DLJMCI
2. Union Capital Investments, LLC Seller's Warranty Certificate dated as of
("Union Capital") June 17, 1998, from Union Capital in favor
of DLJMCI
<PAGE>
EXHIBIT M-2
FORM OF GECA MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of June 18, 1998
(this "Agreement"), is between DLJ Commercial Mortgage Corp., a Delaware
corporation (the "Purchaser"), and GE Capital Access, Inc., a Delaware
corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and otherwise convey
to the Purchaser, subject to the terms and conditions set forth below, certain
mortgage loans (collectively, the "Mortgage Loans") identified and more
particularly described on Schedule 1 attached hereto (the "Mortgage Loan
Schedule"). Unless otherwise indicated on the Mortgage Loan Schedule, the
Mortgage Loans were originated by the Seller.
Reference is made to the Pooling and Servicing Agreement, dated as of June
1, 1998 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, GE Capital Loan Services, Inc., as servicer (in such capacity, the
"Servicer"), Midland Loan Services, Inc., as special servicer (in such capacity,
the "Special Servicer"), and Norwest Bank Minnesota, National Association as
trustee (in such capacity, the "Trustee") and as REMIC administrator (in such
capacity, the "REMIC Administrator"), relating to the issuance of the
Purchaser's Commercial Mortgage Pass-Through Certificates, Series 1998-CG1 (the
"Certificates"). Capitalized terms used without definition herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement as
in full force and effect on the Closing Date (as defined below). The Seller
acknowledges that the Purchaser intends to transfer the Mortgage Loans, together
with certain other commercial and multifamily mortgage loans, to the Trustee in
exchange for the Certificates. The Purchaser has entered into an Underwriting
Agreement, dated the date hereof (the "Underwriting Agreement"), with Donaldson,
Lufkin & Jenrette Securities Corporation (the "Underwriter"), whereby the
Purchaser will sell to the Underwriter all of the Certificates that are to be
registered under the Securities Act of 1933, as amended (the "Securities Act";
and such Certificates, the "Registered Certificates"). The Purchaser has also
entered into a Certificate Purchase Agreement, dated the date hereof (the
"Certificate Purchase Agreement"), with the Underwriter, whereby the Purchaser
will sell to the Underwriter all of the remaining Certificates (the
"Non-Registered Certificates").
1. Agreement to Purchase. The Seller agrees to sell, assign, transfer, set over
and otherwise convey, and the Purchaser agrees to purchase, the Mortgage Loans.
The purchase and sale of the Mortgage Loans shall take place on June 24, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The Mortgage Loans will have an aggregate Cut-off Date Balance
of approximately $818,436,243.85 (the "Initial Pool Balance"). The purchase
price for the Mortgage Loans shall be determined in accordance with the letter
agreement between the Purchaser and the Seller including accrued interest
thereon from June 1, 1998 (the "Cut-off Date") to but not including the Closing
Date. Such purchase price shall be paid to the Seller on the Closing Date by
wire transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 above, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser all the
Seller's right, title and interest in and to the Mortgage Loans, including all
<PAGE>
interest and principal received on or with respect to the Mortgage Loans after
the Cut-off Date (other than scheduled payments of interest and principal due on
or before the Cut-off Date), together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans (including letters of credit representing reserves or escrows).
On the Closing Date, the Seller shall transfer or cause to be transferred to the
Servicer the funds in such escrow, reserve or other comparable accounts related
to the Mortgage Loans, together with an amount equal to all collections on the
Mortgage Loans received prior to the Closing Date that represent scheduled
payments of principal and interest due and principal prepayments received after
the Cut-off Date.
(b) In connection with such transfer and assignment, the Purchaser hereby
directs the Seller to, and the Seller hereby agrees to, deliver to, and deposit
with, the Trustee (or a custodian appointed thereby (a "Custodian")) the
documents and/or instruments described on Exhibit A hereto with respect to each
Mortgage Loan (collectively as to each Mortgage Loan, the "Mortgage File"). The
Seller shall also cause (at its own expense) any letter of credit delivered by a
Mortgagor and included in the Mortgage File to be transferred to and for the
benefit of the Trustee, including changing the beneficiary thereof, as
necessary. In addition, the Purchaser hereby directs the Seller to, and the
Seller hereby agrees to, deliver to, and deposit with, the Servicer all of the
documents and other items referred to in Section 2.01(f) of the Pooling and
Servicing Agreement with respect to the Mortgage Loans (collectively as to each
Mortgage Loan, the "Servicing File"), together with any and all unapplied
escrows and reserves in respect of the Mortgage Loans.
If the Seller cannot deliver on the Closing Date any original or certified
recorded document described on Exhibit A or any original title insurance policy,
the Seller shall use its best efforts, promptly upon receipt thereof, to deliver
such original or certified recorded documents or original title insurance policy
to the Trustee or Custodian, as the case may be (unless the Seller is delayed in
making such delivery by reason of the fact that such original or certified
recorded documents shall not have been returned by the appropriate recording
office or such original title insurance policy has not yet been issued, in which
case it shall notify the Trustee and, if applicable, the Custodian in writing of
such delay and shall deliver such documents to the Trustee or Custodian, as the
case may be, promptly upon the Seller's receipt thereof). In any event, if the
Seller fails to deliver any original or certified recorded document described on
Exhibit A or any original title policy described on Exhibit A to the Trustee or
Custodian within 180 days following the Closing Date, such failure shall be
deemed to constitute a breach of the representation set forth in Item 38 of
Exhibit C hereto with respect to the related Mortgage Loan.
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser and its successors and assigns (including, without limitation,
the Trustee for the benefit of the Certificateholders), each of the
representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders), each
of the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the Purchaser only, that the Seller has not dealt with
any broker, investment banker, agent or other person (other than the Purchaser
and the Underwriter) who may be entitled to any commission or compensation
payable by Purchaser or Underwriter in connection with the sale to the Purchaser
of the Mortgage Loans.
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<PAGE>
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser and its successors and assigns (including, without
limitation, the Trustee for the benefit of the Certificateholders), as of the
date of substitution, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Defective Mortgage Loan
(as defined in Section 4(a) hereof), each of the representations and warranties
set forth in Exhibit B and Exhibit C. From and after the date of substitution,
each Replacement Mortgage Loan, if any, shall be deemed to constitute a
"Mortgage Loan" hereunder for all purposes.
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within ninety (90) days of receipt of notice by the Seller that there
has been a breach of any of the representations and warranties set forth in
Exhibit B or Exhibit C and made by the Seller pursuant to Section 3(a), Section
3(b) or Section 3(d), as the case may be, which breach materially and adversely
affects the value of any Mortgage Loan or the interests of the legal and/or
beneficial owner(s) thereof (any such breach, a "Material Breach"), the Seller
shall, subject to subsection (b) below, (i) cure such Material Breach in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price (as defined in the
Pooling and Servicing Agreement, but without giving effect to any amendment
thereto unless approved in writing by Seller) in accordance with the directions
of the owner(s) of such Defective Mortgage Loan(s); provided that if (i) such
Material Breach does not relate to whether the Defective Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (a
"Qualified Mortgage"), (ii) such Material Breach is capable of being cured but
not within such 90-day period, (iii) the Seller has commenced and is diligently
proceeding with the cure of such Material Breach within such 90-day period, and
(iv) the Seller shall have delivered to the owner(s) of the Defective Mortgage
Loan a certification executed on behalf of the Seller by an officer thereof
setting forth the reason that such Material Breach is not capable of being cured
within the initial 90-day period and what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Material Breach will be cured within an additional period not to exceed 90
more days, then the Seller shall have up to an additional 90 days to complete
such cure, in which event the Seller shall continue to proceed diligently to
effect such cure as early as practicable within such 90- day period; and
provided, further, that if the Seller's obligation to repurchase any Defective
Mortgage Loan as a result of a Material Breach arises within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the Defective Mortgage Loan is a "defective obligation"
within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury
Regulation Section 1.860G-2(f)), the Seller may, at its option, in lieu of
repurchasing such Defective Mortgage Loan (but, in any event, no later than such
repurchase would have to have been completed), (x) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(y) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement (or, if the Defective Mortgage Loan is no longer subject thereto, in
accordance with the reasonable instructions of the owner(s) thereof). Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis. The Seller shall have no obligation to monitor the
Mortgage Loans regarding the existence of a Material Breach, but if Seller
discovers a Material Breach with respect to a Mortgage Loan, it will notify
Purchaser.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(a), the Seller (i) shall deliver
the related Mortgage File to the owner(s) of the Defective Mortgage Loan, (ii)
certify that such substitute mortgage loan satisfies or such substitute mortgage
loans satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement and (iii) send such certification to such owner(s). No mortgage loan
may be substituted for a Defective Mortgage Loan as contemplated by this Section
4(a) if the Defective Mortgage Loan to be replaced
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<PAGE>
was itself a Replacement Mortgage Loan. Monthly Payments due with respect to
each Replacement Mortgage Loan (if any) after the related date of substitution,
and Monthly Payments due with respect to each Defective Mortgage Loan (if any)
after the Cut-off Date and on or prior to the related date of repurchase or
substitution, shall belong to the Purchaser and its successors and assigns.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or substitution, shall belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the owner(s) of such Defective Mortgage
Loan.
Except as contemplated by Section 8, it is understood and agreed that the
obligations of the Seller set forth in this Section 4(a) to cure a Material
Breach or repurchase or replace the related Defective Mortgage Loan(s)
constitute the sole remedies available to the Purchaser or any assignee
respecting a breach of the representations and warranties set forth on Exhibits
B and C and made by the Seller pursuant to Sections 3(a), 3(b) and 3(d),
respectively.
(b) It shall be a condition to any repurchase of or substitution for a
Defective Mortgage Loan by the Seller pursuant to Section 4(a) that the Trustee
as assignee of the Purchaser shall have executed and delivered such instruments
of transfer or assignment then presented to it by the Seller, in each case
without recourse, as shall be necessary to vest in the Seller the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), to the extent that such ownership interest was transferred to the
Trustee under the Pooling and Servicing Agreement.
(c) The Seller hereby acknowledges and consents to the assignment by the
Purchaser to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Certificateholders, of (i) the representations and
warranties set forth in Exhibits B and C and made by the Seller pursuant to
Sections 3(a), 3(b) and 3(d), respectively, (ii) the obligation of the Seller to
repurchase or replace a Defective Mortgage Loan in connection with a Material
Breach pursuant to Section 4(a) and (iii) the obligation of the Seller to
deliver certain documentation, funds and other assets relating to the Mortgage
Loans pursuant to Section 2. The Trustee or its designee may enforce such
obligations as provided in Section 11(a) hereof or as assignee.
5. Closing. The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley & Austin, 875 Third Avenue, New York, New
York 10022 at 10:00 a.m., New York City time (or at such other place and time as
may be determined by the Purchaser), on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller made
pursuant to Section 3 of this Agreement shall be true and correct as of the
Closing Date;
(ii) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee or a
Custodian and to the Servicer, respectively, all documents, funds and other
assets required to be delivered thereto pursuant to Section 2 of this
Agreement;
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<PAGE>
(iv) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date; and
(v) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of the following:
(i) This Agreement duly executed by the Purchaser and the Seller;
(ii) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by an executive officer of the Seller, in his or her
individual capacity, and dated the Closing Date, and upon which the
Purchaser, the Underwriter, their affiliates, the Trustee and the
Certificateholders (collectively, for purposes of this Section 6, the
"Interested Parties") may rely, attaching thereto as exhibits (A) the
resolutions of the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated by this Agreement and
(B) the certificate of incorporation and by-laws of the Seller;
(iii) A certificate of good standing of the Seller issued by the
Secretary of State of the State of Delaware not earlier than thirty (30)
days prior to the Closing Date, and upon which the Interested Parties may
rely;
(iv) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto; executed by an authorized signatory of the Seller and dated the
Closing Date, and upon which the Interested Parties may rely;
(v) Written opinions of Kevin Korsh, Esq., in-house counsel for the
Seller and GECC (as defined below) and Andrews & Kurth L.L.P., counsel for
the Seller and GECC, substantially in the forms of Exhibit D-3A and Exhibit
D-3B hereto with any modifications required by any rating agency (each, a
"Rating Agency") identified in the Prospectus Supplement or the Memorandum
(each as defined below), dated the Closing Date and addressed to the
Purchaser, the Underwriter, the Trustee and, if requested thereby, each
Rating Agency, together with such other written opinions as may be required
by any Rating Agency, including a written opinion of Cadwalader, Wickersham
and Taft, counsel for the Seller and GECC with respect to "true sale"
issues; and
(vi) A written letter of Cadwalader, Wickersham & Taft, counsel for
the Seller, and Andrews & Kurth LLP, counsel for the Seller, each in form
and substance acceptable to the Purchaser and the Underwriter, dated the
Closing Date and addressed to the Purchaser and the Underwriter relating to
the Prospectus Supplement and the Memorandum;
(vii) A letter or letters obtained by the Purchaser and the Seller,
among others, from Arthur Andersen LLP, certified public accountants, dated
the dates of the Prospectus Supplement and the Memorandum, to the effect
that they have performed certain specified procedures as a result of which
they have determined that certain information of an accounting, financial
or statistical nature set forth in the Prospectus Supplement and the
Memorandum under the captions "Summary -- The Mortgage Pool," "Description
of the Mortgage Pool" and "Risk Factors -- The Mortgage Loans", Exhibit A-1
to the Prospectus Supplement and the Diskette (as defined below) agrees
with the records of the Seller; and
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<PAGE>
(viii) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
7. Costs. The Seller shall pay all expenses incidental to the performance
of its obligations under this Agreement, including without limitation, any
recording fees or fees for title policy endorsements and continuations and fees
and expenses of its counsel, provided that Seller and Purchaser shall share
certain costs and expenses as outlined in a separate terms sheet.
The Seller shall pay all out-of-pocket costs and expenses of the Purchaser
(including the Trust and its representatives as assignee thereof) reasonably
incurred in connection with the enforcement of any rights or remedies of the
Purchaser or the Trust provided for by this Agreement, including the performance
of all of the Seller's obligations hereunder: (a) in defending or protecting the
Purchaser's right, title and interest in the Mortgage Loans, including, without
limitation, the security interests and liens granted hereunder in the event that
the sale hereunder is deemed to constitute a loan secured by all or part of the
Mortgage Loan, or in defending or protecting the priority of any thereof; and
(b) in the enforcement, or attempted enforcement, of this Agreement, or in the
collection or attempted collection of any obligation of the Seller hereunder;
provided, however, that if the Seller is the prevailing party in any such
enforcement action against Seller, then Seller shall not be obligated to pay any
of the foregoing costs or expenses of Purchaser, and, unless such action was
commenced by the Trust, the Purchaser shall be obligated to pay such costs and
expenses incurred by Seller.
8. [Intentionally omitted from this Form 8-K.]
9. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Purchaser, will be sent by regular prepaid
U.S. Mail or prepaid reputable overnight courier or delivered by hand and
confirmed to it at 277 Park Avenue, 9th Floor, New York, New York 10172,
Attention: N. Dante LaRocca, or such other address as may be designated by the
Purchaser to the Seller in writing, or, if sent to the Seller, will be sent by
regular prepaid U.S. Mail or prepaid reliable overnight courier or delivered by
hand and confirmed to it at 292 Long Ridge Rd., Stamford, Connecticut 06927,
Attention: Kathy A. Cassidy, fax no. 203/357-6364, or such other address as may
be designated by the Seller to the Purchaser in writing.
10. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may not be changed in any manner which would have a
material adverse effect on Holders of the Certificates without the prior written
consent of the Trustee. This Agreement also may not be changed in any manner
which would have a material adverse effect on any other third party beneficiary
hereof without the prior written consent of that person. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
in Sections 3(a), 3(b), 3(d), 8 and 11 hereof.
11. Third Party Beneficiaries.
(a) The Trustee and the Certificateholders are intended third party
beneficiaries of the representations, warranties and covenants made by the
Seller in Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent relevant to
the foregoing, in Sections 10, 12, 13, 14, 15, 16 and 19 and the second
paragraph of Section 7 and the first sentence of Section 17) of this Agreement.
It is acknowledged that such representations, warranties and covenants of the
Seller may be enforced
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<PAGE>
by the Trustee against the Seller, on behalf of itself and the
Certificateholders, to the same extent as if they were parties hereto.
(b) The Underwriter is an intended third party beneficiary of the
representations, warranties and covenants of the Seller set forth in Sections 5,
6, and 8 and (and, to the extent relevant to the foregoing, in Sections 10, 13,
14, 15 and 16 and the second paragraph of Section 7) of this Agreement. It is
acknowledged and agreed that such representations, warranties and covenants may
be enforced by or on behalf of the Underwriter against the Seller to the same
extent as if it was a party hereto.
(c) Each of the officers, directors, employees, agents, controlling persons
and affiliates of the Purchaser referred to in Section 8 hereof is an intended
third party beneficiary of the representations, warranties, covenants and
indemnities of the Seller set forth in Section 8 (and, to the extent relevant to
the foregoing, in Sections 10, 13, 14, 15 and 16) of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of any such person or entity against
the Seller to the same extent as if such person or entity was a party hereto.
(d) Each of the officers, directors, employees, agents, controlling persons
and affiliates of the Seller referred to in Section 8 hereof is an intended
third party beneficiary of the representations, warranties, covenants and
indemnities of the Purchaser set forth in Section 8 (and, to the extent relevant
to the foregoing, in Sections 10, 13, 14, 15 and 16) of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of any such person or entity against
the Purchaser to the same extent as if such person or entity was a party hereto.
12. Characterization. It is the express intent of the parties hereto that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. Furthermore, it is not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to secure a debt or other obligation of the Seller.
13. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser (and by the Purchaser to the Trustee), notwithstanding any restrictive
or qualified endorsement or assignment in respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or is held to be void or unenforceable in any particular jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties hereto waive any
provision of law which prohibits or renders void or unenforceable any provision
hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement will be governed
by and construed in accordance with the substantive laws of the State of New
York, applicable to agreements made and to be performed entirely in said state.
The Seller hereby irrevocably (i) submits to the jurisdiction of any federal
courts sitting in New York City with respect to
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<PAGE>
matters arising out of or relating to this Agreement (or, if federal
jurisdiction does not apply, then New York State courts); (ii) agrees that all
claims with respect to such action or proceeding may be heard and determined in
such courts; (iii) waives, to the fullest possible extent, the defense of an
inconvenient forum; and (iv) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
16. Further Assurances. The Seller and the Purchaser agree to execute and
deliver such instruments and take such further actions as the other party may,
from time to time, reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
17. 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 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 (other than Sections 8 and 20), in whole or in part, as
contemplated by Section 4(c) or as may otherwise be required to effect the
purposes of the Pooling and Servicing Agreement, and the assignee shall, to the
extent of such assignment, succeed to the rights and obligations hereunder of
the Purchaser.
18. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document, and shall verify the accuracy thereof.
19. Cross-Collateralized Mortgage Loans. Notwithstanding anything herein to
the contrary, it is hereby acknowledged that certain groups of Mortgage Loans
identified on the Mortgage Loan Schedule as being cross-collateralized with each
other, are, in the case of each such particular group of Mortgage Loans (each, a
"Cross-Collateralized Group"), evidenced by a single mortgage note and secured
by mortgages, deeds of trust and/or deeds to secure debt on all the Mortgaged
Properties identified on the Mortgage Loan Schedule as corresponding to such
Cross-Collateralized Group. Each such Mortgage Loan actually represents a
portion of the entire indebtedness evidenced by the related mortgage note that
has been allocated to the Mortgaged Property identified on the Mortgage Loan
Schedule as corresponding to such Mortgage Loan. Each of the Mortgage Loans
constituting each such Cross-Collateralized Group shall be deemed to be a
separate Mortgage Loan that is (a) evidenced by a mortgage note identical to the
mortgage note that evidences such Cross-Collateralized Group (but in a principal
amount equal to the principal balance allocated to such Mortgage Loan) and (b)
cross-defaulted and cross-collateralized with each other Mortgage Loan in such
Cross-Collateralized Group. In addition, it is hereby acknowledged that certain
other groups of Mortgage Loans identified on the Mortgage Loan Schedule as being
cross-collateralized with each other, are, in the case of each such particular
group of Mortgage Loans (each, also a "Cross-Collateralized Group"), by their
terms, cross-defaulted and cross-collateralized. For purposes of reference, the
Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including, without limitation, each of the representations and warranties set
forth in Exhibit C hereto and each of the capitalized terms used herein but
defined in the Pooling and Servicing Agreement, shall be interpreted in a manner
consistent with this Section 19. In addition, if there exists with respect to
any Cross-Collateralized Group only one original of any document referred to in
the definition of "Mortgage File" and covering all the Mortgage Loans in
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<PAGE>
such Cross-Collateralized Group, the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
20. [Intentionally omitted from this Form 8-K.]
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<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller with Respect to the Mortgage
Loans
The documents and instruments to be delivered to the Trustee (or a
Custodian on behalf of the Trustee) in respect of each Mortgage Loan pursuant to
Section 2(a) of this Agreement are, subject to Section 19, as follows:
(i) the original executed Mortgage Note, endorsed (without recourse) to the
order of Norwest Bank Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CG1;
(ii) an original or copy of the Mortgage and of any intervening assignments
thereof that precede the assignment referred to in clause (iv) below, in
each case (unless such document has not yet been returned from the
applicable recording office) with evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such item
is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
below, in each case (unless such document has not yet been returned from
the applicable recording office) with evidence of recording indicated
thereon;
(iv) an original executed assignment of the Mortgage, in favor of Norwest
Bank Minnesota, National Association, as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1, in recordable form;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in favor of Norwest Bank
Minnesota, National Association, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1, in recordable form;
(vi) originals or copies of any written assumption, modification, written
assurance and substitution agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been modified or the
Mortgage Loan has been assumed;
(vii) the original or a copy of the policy of lender's title insurance
issued on the date of the origination of such Mortgage Loan (provided, if
such policy has not yet been issued, a pro forma policy or an irrevocable,
binding commitment to issue such title insurance policy shall be delivered
pending receipt of the final policy from the title insurer);
(viii) filed copies of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC-2 or
UCC-3, as appropriate, in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-CG1;
<PAGE>
(ix) any environmental indemnity agreement, power of attorney, property
management agreement, ground lease, intercreditor agreement, cash
management agreement and lock-box agreement relating to such Mortgage Loan;
(x) any original documents (including any security agreements and any
Letters of Credit and related letter of credit reimbursement agreements)
relating to Additional Collateral; and
(xi) insurance certificates relating to hazard insurance policies
maintained by the Mortgagor with respect to the related Mortgaged Property.
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<PAGE>
Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a Delaware corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business, is
duly qualified as a foreign corporation in good standing in all jurisdictions in
which the ownership or lease of its property or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the ability of the Seller to perform its
obligations hereunder, and the Seller has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement by it,
and has the corporate power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign, transfer, set over and
convey the Mortgage Loans in accordance with this Agreement;
(b) This Agreement has been duly authorized, executed and delivered by the
Seller and assuming its due authorization, execution and delivery by the
Purchaser, will constitute a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
or by public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(c) The execution and delivery of this Agreement by the Seller and the
performance of its obligations hereunder (1) will not conflict with any
provision of any law or regulation to which the Seller is subject, or conflict
with, result in a breach of or constitute a default under any of the terms,
conditions or provisions of any of the Seller's organizational documents or any
agreement or instrument to which the Seller is a party or by which it is bound,
or any order or decree applicable to the Seller, or result in the creation or
imposition of any lien on any of the Seller's assets or property, in each case
which would materially and adversely affect the ability of the Seller to carry
out the transactions contemplated by this Agreement; and (2) does not require
the consent of any third party or such consent has been obtained;
(d) There is no action, suit, proceeding or investigation pending or, to
the knowledge of the Seller, threatened against the Seller in any court or by or
before any other governmental agency or instrumentality which, in the Seller's
good faith and reasonable judgment, would materially and adversely affect the
validity of this Agreement or the ability of the Seller to enter into, and carry
out the transactions contemplated by, this Agreement;
(e) The Seller is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that, in the Seller's
good faith and reasonable judgment, would materially and adversely affect the
condition (financial or
<PAGE>
otherwise) or operations of the Seller or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(f) 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 this Agreement or
the consummation of the transactions contemplated by this Agreement, other than
those which have been obtained by the Seller;
(g) The Seller is a wholly-owned subsidiary of General Electric Capital
Corporation.
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<PAGE>
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge" and
other words and phrases of like import shall mean the actual state of knowledge
of the Seller regarding the matters referred to, in each case without having
conducted any independent inquiry into such matters and without any obligation
to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is complete, true and correct in all
material respects as of the date of this Agreement and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer to the
Purchaser of the Mortgage Loans, the Seller had good and marketable title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to the Purchaser or its designee all of the Seller's legal and
beneficial interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. The sale
of the Mortgage Loans to the Purchaser or its designee does not require the
Seller to obtain any governmental or regulatory approval or consent that has not
been obtained.
3. Payment Record. As of the Closing Date, no scheduled payment of
principal and interest under any Mortgage Loan was thirty (30) days or more past
due, and no Mortgage Loan has been thirty (30) days or more delinquent in the
twelve-month period immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, none of which materially interferes
with the security intended to be provided by such Mortgage, the current use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy, none of which materially interferes with the security intended
to be provided by such Mortgage, the current use of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan, (d) other matters to
which like properties are commonly subject, none of which materially interferes
with the security intended to be provided by such Mortgage, the use of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, and
(e) if such Mortgage Loan is a Cross-Collateralized Mortgage Loan, the lien of
the Mortgage for another Mortgage Loan contained in the same
Cross-Collateralized Group (the foregoing items (a) through (e) being herein
referred to as the "Permitted
<PAGE>
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and, subject to the exceptions set
forth in Paragraph 13 below, constitutes a legal, valid 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 Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
Paragraph 13 below, enforceable security interest in favor of the holder thereof
in all of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. A Uniform Commercial Code
financing statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in such personal property, and such security
interest is only subject to any prior purchase money security interest in such
personal property, any personal property leases applicable to such personal
property and any security interest in such personal property granted in
connection with another Mortgage Loan.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the related Mortgaged Property, and each assignor
thereunder has the full right to assign the same. The related assignment of such
Assignment of Leases executed and delivered in favor of the Trustee is in
recordable form and, subject to the exceptions set forth in Paragraph 13 below,
constitutes a legal, valid 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. To the Seller's knowledge, no person owns
any interest in any payments due under the related leases that is superior to
the lien created by such Assignment of Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage related to a
Mortgage Loan has been satisfied, canceled, rescinded or subordinated in whole
or in material part, and the related Mortgaged Property has not been released
from the lien of such Mortgage, in whole or in material part, nor has any
instrument been executed that would effect any such satisfaction, cancellation,
subordination, rescission or release. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases related to a Mortgage Loan have been impaired,
waived, altered or modified in any respect, except by written instruments, all
of which are included in the related Mortgage File. No Mortgage Loan has been
modified in any manner such that the terms of such Mortgage Loan, as so
modified, are materially (and adversely to the owner thereof) different from the
terms of such Mortgage Loan described in the Prospectus.
7. Condition of Property; Condemnation. Each Mortgaged Property securing a
Mortgage Loan is, to the Seller's knowledge, based on its review of the most
recent inspection report (which, if prepared by a servicer of such Mortgage
Loan, was so prepared in accordance with the related servicing agreement), free
and clear of any damage that would materially and adversely affect its value as
security for such Mortgage Loan. The Seller has not received notice (and is not
otherwise aware) of any proceeding pending for the total or partial condemnation
of or affecting the Mortgaged Property securing any Mortgage Loan. To the
Seller's knowledge, as of the date of the origination of each Mortgage Loan, all
of the material improvements on the related Mortgaged Property lay wholly within
the boundaries and building restriction lines of such property, except for
encroachments that are insured against by the lender's title insurance policy
referred to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property.
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<PAGE>
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") in the original principal
amount of such Mortgage Loan after all advances of principal insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the exceptions stated therein (or a pro forma title policy or
marked up title insurance commitment on which the required premium has been paid
exists which evidences that such Title Policy will be issued). Such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder (and the Seller has not received notice of any material claims
having been made or paid thereunder). No holder of the related Mortgage has
done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. The insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located, and with respect to at least a majority
of the Mortgage Loans (by outstanding principal balance as of the Cut-off Date)
the insurer is a nationally recognized insurer. Such Title Policy contains no
exclusion for, or it affirmatively insures, (a) access to a public road, (b)
that there are no material encroachments of any part of the improvements on the
related Mortgaged Property over easements, which encroachments could reasonably
be expected to materially interfere with the use of the related Mortgaged
Property (unless the related Mortgaged Property is located in a jurisdiction
where such affirmative insurance is not available) and (c) that the area shown
on the survey conducted in connection with the origination of the related
Mortgage Loan is the same as the property legally described in the related
Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been made but a portion thereof is being held back pending the satisfaction of
certain leasing or other economic criteria with respect to the related Mortgaged
Property), and there is no obligation for future advances with respect thereto.
Any and all requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds escrowed
for such purpose, which requirements were to have been complied with on or
before the Closing Date, have been complied with or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in Paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect of any Mortgage
Loan is a deed of trust, (a) a trustee, duly qualified under applicable law to
serve as such, is properly designated and serving under such Mortgage, and (b)
except in connection with a trustee's sale after default by the related
Mortgagor, no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof.
12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and either (x) no
such Environmental Report reveals any known circumstances or conditions with
respect to the related Mortgaged Property that rendered such Mortgaged Property,
at the date of such Environmental Report, in material violation of any
applicable environmental laws or (y) if any such Environmental Report does
reveal any such
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<PAGE>
circumstances or conditions with respect to the related Mortgaged Property and
the same have not been subsequently remediated in all material respects, then
either (i) the expenditure of funds necessary to effect such remediation is not
material in relation to the outstanding principal balance of the related
Mortgage Loan and such remediation would not materially and adversely affect the
value of the Mortgaged Property, or (ii) a sufficient escrow of funds exists for
purposes of effecting such remediation, or (iii) the related Mortgagor or other
responsible party is currently taking such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable governmental
regulatory authority. To the Seller's knowledge, there are no circumstances or
conditions with respect to such Mortgaged Property not revealed in such
Environmental Report that render such Mortgaged Property in material violation
of any applicable environmental laws. The Mortgage encumbering such Mortgaged
Property requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Mortgagor with respect to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency legislation),
and each assignment of Mortgage and assignment of Assignment of Leases executed
by the Seller is the legal valid and binding obligation of the Seller, and each
such Mortgage Note, Mortgage and other agreement and each such assignment of
Mortgage and assignment of Assignment of Leases is enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law), and
there is no valid defense, counterclaim or right of offset or rescission
available to the related Mortgagor with respect to such Mortgage Note, Mortgage
or other agreements.
14. Insurance. All improvements upon each Mortgaged Property securing a
Mortgage Loan are insured against loss by hazards of extended coverage in an
amount at least equal to the lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full replacement cost of the improvements located
on the related Mortgaged Property, and if applicable, the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. Each Mortgaged Property securing a Mortgage Loan is the subject of
a business interruption insurance policy providing coverage for at least six (6)
months. If any portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Flood Emergency Management Agency
as having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable value of such Mortgaged Property, and (3) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended.
All such hazard and flood insurance policies contain a standard "New York"
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without prior written notice to the
mortgagee, and all premiums payable thereon as of the Closing Date, whether
annual or otherwise, have been paid. Each Mortgaged Property securing a Mortgage
Loan is also covered by commercial general liability insurance in an amount at
least equal to $1 million per occurrence. Each Mortgage requires that the
Mortgagor maintain insurance as described above or permits the Mortgagee to
require insurance as described above. No notice of termination, cancellation or
reduction has been received by the Seller with respect to any such hazard, flood
or liability insurance policy. The Mortgage for each Mortgage Loan
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<PAGE>
provides that proceeds paid under any such casualty insurance policy will (or,
at the lender's option, will) be applied either to the repair or restoration of
the related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan, except to the extent that (i) the Mortgage entitles the Mortgagor
to any portion of such proceeds remaining after the repair or restoration of the
Mortgaged Property and payment of amounts due under the Mortgage Loan, and (ii)
the Mortgagor's interest in the Mortgaged Property is a leasehold interest (in
which case, the provisions of the Mortgage Loan documents relating to the
application of the proceeds of casualty insurance policies area s described in
Item 18(i)).
15. Taxes and Assessments. To the Seller's knowledge, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan which are or may become a lien of priority
equal to or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
16. Mortgagor Bankruptcy. Except as described on Schedule C-1, no Mortgagor
under a Mortgage Loan is, to the Seller's knowledge, a debtor in any state or
federal bankruptcy or insolvency proceeding.
17. Local Law Compliance. To the best of the Seller's knowledge based on
due diligence customarily undertaken by prudent institutional mortgage lenders,
the improvements located on or forming part of each Mortgaged Property securing
a Mortgage Loan comply with applicable zoning laws and ordinances, or constitute
a legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property.
18. Leasehold Estate Only. If "Leasehold" is set forth opposite the name of
the related Mortgaged Property on the Mortgage Loan Schedule, such Mortgage Loan
is secured by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (with respect to Representations 18 and
19, the term "Ground Lease" shall mean such ground lease, all written amendments
and modifications, and any related estoppels or agreements from the ground
lessor), but not by the related fee interest in such Mortgaged Property (the
"Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and
there has been no material change in the terms of such Ground
Lease since its recordation, with the exception of written
instruments which are a part of the related Mortgage File;
(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, (except as described on Schedule C-1) 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;
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<PAGE>
(d) At the date of origination, such Ground Lease was in full force
and effect, and the Seller has not received notice (nor is the
Seller otherwise aware) that any default has occurred under such
Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee (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 received by the mortgagee
from the lessor, 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 in the manner
described in such Ground Lease;
(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 either (i) has an original term which extends
not less than ten (10) years beyond the Stated Maturity Date of
the related Mortgage Loan or (ii) has an original term which does
not end prior to 3 years following the Stated Maturity Date of
the related Mortgage Loan and has extension options that, if
exercised by the related Mortgagor cause the term of such Ground
Lease to extend not less than (10) years beyond the Stated
Maturity Date of the related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any
reason, including rejection of such Ground Lease in a bankruptcy
proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds (other than in
respect of a total or substantially total loss or taking) will be
applied either (i) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon; and
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any lessee in the relevant portion
of the Mortgaged Property subject to such Ground Lease for any
reason, or in any manner, which would materially adversely affect
the security provided by the related Mortgage.
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<PAGE>
(k) Sub-Leasehold Estate. With respect to the Governor's Terrace
Apartments Mortgage Loan, which is secured by the interest of the
related Mortgagor under a ground sub-lease of a Mortgaged
Property (a "Ground Sub-Lease") and not by the related fee
interest:
a. (i) Such Ground Sub-Lease or a memorandum thereof has been
or will be duly recorded; such Ground Sub-Lease (or an
estoppel letter executed by the sublessor) permits the
interest of the sub-lessee thereunder to be encumbered by
the related Mortgage; and there has been no material change
in the terms of such Ground Sub-Lease since its recordation,
with the exception of written instruments which are a part
of the related Mortgage File; and (ii) the ground lease
under which the sublessor holds its leasehold interest (for
purposes of this Section 18, the related ("Ground Lease") or
a memorandum thereof has been or will be duly recorded; such
Ground Lease (or an estoppel letter executed by the related
lessor) permits the lessee thereunder to sublease the
related leasehold estate (or the sublessor consented to the
execution and delivery of the Ground Sub-Lease); and there
has been no material change in the terms of such Ground
Lease since its recordation, with the exception of written
instruments which are a part of the related Mortgage File;
b. (i) The related fee interest and any existing mortgage or
other lien thereon (other than any Permitted Encumbrance) is
subject to the rights of the lessee under the related Ground
Lease and the Ground Lease does not provide for, and the
ground lessee has not otherwise agreed to, the subordination
of the rights to the lessee thereunder to any future
mortgage or other lien on such related Fee Interest; and
(ii) the related Ground Lease and any mortgage or other lien
thereon (other than any Permitted Encumbrance) is subject to
the rights of the ground sub-lessee under such Ground
Sub-Lease and the Ground Sub-Lease does not provide for, and
the ground sub-lessee has not otherwise agreed to, the
subordination of the rights of the lessee thereunder to any
future mortgage or other lien on the leasehold estate
created by the related Ground Lease;
c. Under the terms of such Ground Sub-Lease and the Ground
Lease, the mortgagee has the right, if it succeeds by
foreclosure, exercise of power of sale or any other method,
to assign its interests in such Ground Sub-Lease with the
prior written consent of the ground sublessor, which may not
be unreasonably withheld;
d. (i) At the date of origination, such Ground Sub-Lease was in
full force and effect, and the Seller has not received
notice (and the Seller has no knowledge) that any default
has occurred under such Ground Sub-Lease and (ii) at the
date of origination, the related Ground Lease was in full
force and effect and the Seller has not received notice (and
the Seller has no knowledge) that any default has occurred
under the related Ground Lease;
e. (i) Under such Ground Sub-Lease (or an estoppel letter or
other agreement between the Seller and the related ground
sublessor), the ground sub-lessor has agreed to give to the
mortgagee a copy of
-7-
<PAGE>
any notice given by such ground sublessor of any event of
default under the terms of such Ground Sub-Lease (provided
that mortgagee has provided the lessor with written notice
of its lien) and (ii) under the related Ground Lease (or an
estoppel letter or other agreement between the Seller and
the related lessor), the ground lessor thereunder has agreed
to give to the mortgagee a copy of any notice given by such
ground lessor of any default by the ground lessee (provided
that mortgagee has provided the lessor with written notice
of its lien);
f. (i) Under the terms of the Ground Sub-Lease (or an estoppel
letter or other agreement between the Seller and the related
ground sublessor), the related ground sublessor has agreed
to extend to the mortgagee the opportunity to cure any
default under such Ground Sub-Lease, within thirty (30) days
following written notice that the Mortgagor has failed to
cure such default, before the ground sublessor will take any
further action under the terms of such Ground Sub- Lease;
and (ii) under the related Ground Lease (or an estoppel
letter or other agreement between the Seller and the related
ground lessor), if the ground lessor is notified in writing
that the sublessee has mortgaged its leasehold estate, then
any notice of default given to the ground lessee will be
effective if and when it is also given to the mortgagee,
which will also have an opportunity to cure;
g. (i) Each of such Ground Sub-Lease and such Ground-Lease has
an original term which extends not less than ten (10) years
beyond the stated Maturity Date of the related Mortgage
Loan;
h. Under such Ground Sub-Lease (or an estoppel letter or other
agreement between the Seller and the related ground
sub-lessor), the ground sub-lessor has agreed that insurance
proceeds shall be applied to repair and restoration, or if
more than 25% of the improvements are destroyed during the
last 10 years of the term, then to repayment of the Mortgage
Loan;
i. (i) Under such Ground Sub-Lease (or an estoppel letter or
other agreement between the Seller and the related ground
sub- lessor), the related ground sub-lessor has confirmed
that the Ground Sub-Lease shall not be modified or amended
without the prior written consent of the mortgagee and shall
not be terminated without providing mortgagee notice and an
opportunity to cure; and (ii) under the related Ground Lease
(or an estoppel letter or other agreement between the Seller
and the related ground lessor), the related ground lessor
has confirmed that the Ground Lease shall not be modified,
terminated or amended without the prior written consent of
the mortgagee;
j. The Sub-Ground Lease (or an estoppel letter or other
agreement between the Seller and the related ground
sub-lessor) contains a covenant that the lessor thereunder
is not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any
manner, which would materially adversely affect the
-8-
<PAGE>
security provided by the related Mortgage; and the tenant
may assign or sublease upon obtaining the lessor's written
consent, which may not be unreasonably withheld;
k. The Sub-Ground Lease provides that in the event of a
condemnation, tenant shall be entitled to that portion of
the proceeds as are payable to a commercial tenant under
applicable law.
19. Leasehold Estate and Fee Interest. If "Fee/Leasehold" is set forth
opposite the name of the of the related Mortgaged Property on the Mortgage Loan
Schedule, such Mortgage Loan is secured in whole or in part by the interest of
the related Mortgagor under a Ground Lease and by the related Fee Interest and:
(a) Such Fee Interest is subject, and subordinated of record, to the
related Mortgage; and the related Mortgage does not by its terms
provide that it will be subordinated to the lien of any other mortgage
or other lien upon such Fee Interest; and
(b) Upon occurrence of a default under the terms of the related Mortgage
by the Mortgagor, the mortgagee has the right to foreclose upon or
otherwise exercise its rights with respect to such Fee Interest within
a period of time that would not have been viewed, as of the date of
origination, as commercially unreasonable by a prudent commercial
mortgage lender.
20. Escrow Deposits. With respect to escrow deposits and payments relating
to any Mortgage Loan, all such payments have been delivered to the Servicer, and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made.
21. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
22. Advancement of Funds. No holder of a Mortgage Loan has, 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, directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
23. Equity Interest. No Mortgage Loan is automatically convertible into an
equity ownership interest in the related Mortgaged Property or the related
Mortgagor.
24. Legal Proceedings. To the Seller's knowledge, there are no pending or
threatened actions, suits or proceedings by or before any court or governmental
authority against or affecting the Mortgagor under any Mortgage Loan 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.
25. Junior Liens. Except as otherwise described on Schedule C-1, none of
the Mortgage Loans permits 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. To the Seller's
knowledge, based on a review of the related Title Policy, except as otherwise
specified on Schedule C-1 or in the Prospectus Supplement, and except for cases
involving other Mortgage Loans, the Mortgaged Properties are not encumbered by
any liens junior
-9-
<PAGE>
to the liens of the related Mortgages. In each of the cases described on
Schedule C-1, where a Mortgaged Property securing a Mortgage Loan is further
encumbered by a junior lien, the loan secured by such junior lien is subject to
a subordination and standstill agreement that subordinates such loan and
prohibits the related junior creditor from pursuing any remedies for default or
causing any bankruptcy proceeding while such Mortgage Loan is outstanding.
Except in cases involving other Mortgage Loans, the Mortgaged Properties are not
encumbered by any liens of equal priority with the liens of the related
Mortgages.
26. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan is free and clear of any and all mechanics'
and materialmen's liens that are not bonded or escrowed for, and (ii) no rights
are outstanding that under law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage. The Seller has not received
notice with respect to any Mortgage Loan that any mechanics' and materialmen's
liens have encumbered the related Mortgaged Property since origination that have
not been released, bonded or escrowed for.
27. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
28. Licenses and Permits. To the Seller's knowledge, based on due diligence
customarily performed by commercially reasonable lenders in the origination of
comparable mortgage loans, as of the date of origination of each Mortgage Loan,
(i) the related Mortgagor was in possession of all material licenses, permits
and authorizations required by applicable law for the ownership and operation of
the related Mortgaged Property and (ii) all such licenses, permits and
authorizations were valid and in full force and effect.
29. Servicing Practices. The servicing and collection practices used with
respect to the Mortgage Loans have in all material respects been legal and met
customary standards utilized by prudent institutional commercial and multifamily
mortgage loan master servicers.
30. Cross-collateralization. No Mortgage Loan is cross-collateralized with
any loan other than one or more other Mortgage Loans.
31. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any portion of the related Mortgaged Property from the lien of the related
Mortgage except upon (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of U.S. Treasury securities in connection with a
defeasance of the related Mortgage Loan. The Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or, in the case of a Cross-Collateralized Group, the release
of one or more related Mortgaged Properties upon (a) the satisfaction of certain
legal and underwriting requirements and (b) the payment of a release price and
prepayment consideration in connection therewith.
32. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
33. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except with
respect to ARD Loans and except for the imposition of a default rate.
34. Inspection. In connection with the origination of each Mortgage Loan,
the Seller inspected, or caused the inspection of, the related Mortgaged
Property.
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<PAGE>
35. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in any of Paragraphs 3, 7, 12,
14, 15, 16, 17, 20, 24, 25, 26 and 28 of this Exhibit C.
36. Due-on-Sale. Subject to a one-time (or, in the case of certain Mortgage
Loans, a multiple-time) transfer right allowed in accordance with certain
provisions set forth in the Mortgage securing each Mortgage Loan, such Mortgage
contains a "due-on-sale" clause that provides for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
prior written consent of the holder, the Mortgaged Property subject to such
Mortgage, or any interest therein, is transferred or sold.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan that,
individually or together with the Mortgage Loans of affiliated Mortgagors,
represented 5% or more of the Initial Pool Balance, was, as of the origination
of the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single
Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
38. Delivery of Mortgage File. The Seller has delivered to the Trustee or a
Custodian appointed thereby, with respect to each Mortgage Loan, in accordance
with Section 2 of this Agreement, a complete Mortgage File.
39. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
40. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan listed on Schedule C-2 attached
hereto is not paid in full by its Anticipated Repayment Date, and assuming that
it is not otherwise in default, the rate at which such ARD Loan accrues interest
will increase by two percentage points over the original Mortgage Rate.
41. No Waivers. The Seller has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note, except by a written instrument contained in the Mortgage File.
42. Originator Authorized. To the extent required under applicable law as
of the Closing Date, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it held the Mortgage Loan to the extent necessary to ensure
the enforceability of such Mortgage Loan.
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<PAGE>
43. Defeasance Provision. Any Mortgage Loan which contains a provision for
any defeasance of mortgage collateral either (A) requires the consent of the
holder of the Mortgage Loan to any defeasance or (B) permits defeasance (i) no
earlier than two years following the Closing Date, (ii) only with substitute
collateral constituting "government securities" within the meaning of Treasury
Regulation Section 1.860G-2(a)(8)(i) and (iii) only to facilitate the
disposition of mortgage real property and not as part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
44. Tax Parcels. Except as described on Schedule C-1, each Mortgaged
Property constitutes one or more complete separate tax lots or is subject to an
endorsement under the related Title Policy.
45. Monthly Payment. Each Mortgage Loan has a Monthly Payment due on July
1, 1998, which is required to include interest for an entire month (as
determined on a 30/360 basis or an actual/360 basis, whichever basis applies
under the terms of such Mortgage Loan).
46. Fee Interest. If "Fee" is set forth opposite the name of the related
Mortgaged Property on the Mortgage Loan Schedule, the interest of the related
Mortgagor in such Mortgaged Property is a fee simple interest in real property.
47. Collateral. The Mortgage Note is not secured by any collateral that is
not conveyed pursuant to this Agreement.
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<PAGE>
GECA MLPA
Dated June 18, 1998
Schedule C-1
Exceptions to Representations and Warranties on Exhibit C
REP NO.
- -------
16. Mortgagor Bankruptcy. Cypress Pointe Apartments. The Mortgagor has been the
subject of a bankruptcy proceeding for which the reorganization plan was
confirmed prior to closing and the applicable appeal period has expired.
The Mortgagor has paid or provided for all expenses and fees associated
with the plan, and the plan has been substantially consummated, although
the final order closing the case has not yet been filed.
18. Ground Lease Exceptions:
(c) The Ground Leases for Anaheim Stores and Governor's Terrace Apartments
require the consent of the lessor for further assignment, which
consent may not be unreasonably withheld.
25. Junior Debt. The Mortgage for the Magnolia Apartments permits the Mortgaged
Property to be secured by subordinate debt without the consent of the
holder of the Mortgage provided there exists no event of default, specified
debt service coverage and loan to value ratios are met, and the subordinate
lender executes a subordination and standstill agreement.
44. Tax Parcels. The Mortgaged Properties for Jasper Mall and Chesterfield
Commons Shopping Center did not constitute a complete tax parcel at closing
of the loans, but the related Borrower is required to cause a separate tax
parcel to be in place on or before November 1, 1998 and July 1, 1998,
respectively, or the Borrower will be in default under the related
Mortgage.
<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-CG1
Certificate of Secretary of GE Capital Access, Inc.
I, ____________________, a Secretary of GE Capital Access, Inc. ("GECA")
hereby certify as follows:
1. GECA is validly existing and in good standing under the laws of the
State of Delaware.
2. Attached hereto as Exhibit I are true and correct copies of the Articles
of Incorporation and By-Laws of GECA, which Articles of Incorporation and
By-Laws are on the date hereof, and have been at all times, in full force and
effect.
3. To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of GECA are pending or contemplated.
4. Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of GECA and his/her genuine signature is set
forth opposite his/her name:
Name Office Signature
____________________ _______________________ ________________________
____________________ _______________________ ________________________
5. Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase and Sale Agreement, dated as of June 24,
1998 (the "Agreement"), between DLJ Commercial Mortgage Corp. ("DLJCMC") and
GECA, or any certificate delivered pursuant thereto, was, at the time of such
signing and delivery, duly authorized or appointed to execute such document in
such capacity, and the signatures of such persons or facsimiles thereof
appearing on such document are their genuine signatures.
6. Attached hereto as Exhibit II is a true and correct copy of the
resolutions of the Board of Directors of GECA enacted on _______________
authorizing the Agreement and the consummation of the transactions contemplated
thereby. Such resolutions have not been rescinded and, as of the date hereof,
remain in full force and effect.
Capitalized terms used but not defined herein have the respective meanings
given to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
___________, 1998.
___________________________________________
Name:
<PAGE>
Title: Secretary
I, _______________, a ____________________ of GECA, hereby certify that
__________________ is a duly elected or appointed, as the case may be, qualified
and acting Secretary of GECA and that the signature appearing above is such
officer's genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
___________, 1998.
___________________________________________
Name:
Title:
-2-
<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-CG1
Certificate of GE Capital Access, Inc.
In connection with the execution and delivery by GE Capital Access, Inc.
("GECA") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase and Sale Agreement, dated as of June 24,
1998 (the "Agreement"), between DLJ Commercial Mortgage Corp., as purchaser, and
GECA, as seller, the undersigned hereby certifies that (i) the representations
and warranties of GECA in the Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) GECA has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part required under the
Agreement to be performed or satisfied at or prior to the date hereof.
Certified this ____ day of June, 1998.
GE CAPITAL ACCESS, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
<PAGE>
Exhibit D-3A
Opinion of In-House Counsel to the Seller
Based upon and subject to the foregoing, it is my opinion that:
1. The Seller is a corporation validly existing and in good standing
under the laws of the State of Delaware and has the requisite
corporate power to own its properties, to conduct its business as
presently conducted by it, to own the GECA Mortgage Loans, to sell the
GECA Mortgage Loans to the Depositor and to enter into and perform its
obligations under the Mortgage Loan Purchase Agreement.
2. The Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by the Seller.
3. No consent, approval, authorization or order of any State of New York
or federal court or governmental agency or body is required for the
consummation by the Seller of the transaction contemplated by the
Mortgage Loan Purchase Agreement except for those consents, approvals,
authorizations or orders that previously have been obtained.
4. Neither the sale of the GECA Mortgage Loans as provided in the
Mortgage Loan Purchase Agreement, nor the fulfillment of the terms or
the consummation of any other of the transactions contemplated by the
Mortgage Loan Purchase Agreement, will result in a breach of the
certificate of incorporation or by-laws of the Seller or, to my
knowledge, will conflict with, result in a breach, violation or
acceleration of or constitute a default under, any indenture or other
agreement or instrument to which the Seller is a party or by which it
is bound, or any State of New York or federal statute applicable to
the Seller, or any order or regulation of any State of New York or
federal court, regulatory body, administrative agency or other
governmental body having jurisdiction over the Seller.
5. To my knowledge, there are no actions, proceedings or investigations
pending or threatened against the Seller before any State of New York
or State of Delaware or federal court, administrative agency or other
tribunal (a) asserting the invalidity of the Mortgage Loan Purchase
Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated in the Mortgage Loan Purchase Agreement or
(c) that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of,
the Mortgage Loan Purchase Agreement.
<PAGE>
Exhibit D-3B
Opinion of Counsel to the Seller
Based upon and subject to the foregoing, it is our opinion that the
Mortgage Loan Purchase Agreement constitutes the legal, valid and binding
obligations of the Seller, enforceable against the Seller in accordance with the
terms of the Mortgage Loan Purchase Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except to the extent rights to indemnity
and contribution may be limited by applicable law.
<PAGE>
Schedule 1
Mortgage Loan Schedule
<PAGE>
EXHIBIT N-1
FORM OF THIRD PARTY ORIGINATOR AGREEMENT WITH ARCS
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of June ___, 1998 (this
"Seller's Warranty Certificate"), is executed and delivered by ARCS Commercial
Mortgage Co., L.P. (the "Seller"), in favor of DLJ Mortgage Capital, Inc.
("DLJMC"), its successors and assigns.
PRELIMINARY STATEMENT
The Seller and DLJMC are parties to a Master Mortgage Loan Purchase
Agreement dated as of November 4, 1996 (the "Master Agreement") and amended as
of October 31, 1997. The mortgage loan or, if more than one, the mortgage loans
(in either case, the "Mortgage Loans") identified on the Mortgage Loan Schedule
attached as Schedule 1 hereto have been previously sold by the Seller to DLJMC
pursuant to (or otherwise in a sale intended to be governed by) the Master
Agreement. DLJMC intends to transfer the Mortgage Loans to Column Financial,
Inc. ("Column") pursuant to a Bill of Sale (the "DLJMC - Column Agreement");
Column in turn intends to transfer the Mortgage Loans to DLJ Commercial Mortgage
Corp. (the "Depositor") pursuant to a Mortgage Loan Purchase [and Sale]
Agreement (the "Column Depositor Agreement"); and the Depositor in turn intends
to deposit the Mortgage Loans into a trust fund to be evidenced by the
Depositor's Commercial Mortgage Pass-Through Certificates, Series 1998-CG1 (the
"Certificates"). The Certificates will be issued on or about June __, 1998 (the
actual date of initial issuance, the "Issue Date") pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), to be dated as of
June 1, 1998 among the Depositor, GE Capital Loan Services, Inc., as servicer,
Midland Loan Services, L.P., as special servicer, and Norwest Bank Minnesota,
National Association, as trustee (in such capacity, the "Trustee") and REMIC
administrator. The Seller agreed in the Master Agreement to make certain
representations and warranties, repurchase certain Mortgage Loans and provide
certain indemnification in connection with any sale of the Mortgage Loans to a
trust fund to be formed as part of a mortgage pass-through transaction, and such
agreement was partial consideration for the execution and performance of the
Master Agreement by DLJMC. Capitalized terms used but not defined herein shall
have the respective meanings assigned to such terms in the Master Agreement or,
if not defined in the Master Agreement, shall have the respective meanings
assigned to such terms in the Pooling and Servicing Agreement.
Pursuant to the terms of the DLJMC - Column Agreement, DLJMC shall assign
to Column all of DLJMC's right, title and interest in and to the Mortgage Loans
and under this Seller's Warranty Certificate (except under Section 4 hereof);
pursuant to the Column - Depositor Agreement, Column shall assign to the
Depositor, among other things, all of Column's right, title and interest in and
to the Mortgage Loans and, to the extent assigned to it under the DLJMC Column
Agreement, under this Seller's Warranty Certificate; and pursuant to the Pooling
and Servicing Agreement, the Depositor shall assign to the Trustee, for the
benefit of the holders of the Certificates (the "Certificateholders"), among
other things, all of the Depositor's right, title and interest in and to the
Mortgage Loans and, to the extent assigned to it under the Column Depositor
Agreement, under this Seller's Warranty Certificate.
SECTION 1. Delivery of Mortgage Files. The Seller agrees that it shall
deliver to the Trustee as assignee of the Depositor (or, if so directed by
DLJMC, to a custodian appointed by the Trustee (a "Custodian")), under the
Pooling and Servicing Agreement, all of the documents required in the Mortgage
Files, at the times and in the manner otherwise required by the Pooling and
Servicing Agreement, in each case to the extent the Seller has not delivered
such documents to DLJMC prior to the date hereof.
SECTION 2. Representations and Warranties of the Seller. Pursuant to
Sections 4.01, 4.02 and 7.01 of the Master Agreement, the Seller hereby
represents and warrants as of the
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<PAGE>
Issue Date to and for the benefit of DLJMC, Column, the Depositor, their
affiliates, the Trustee and the Certificateholders that (a) each of the
representations and warranties set forth in Section 4.01 of the Master Agreement
is true and correct as if stated and made on the Issue Date hereunder and (b)
each of the representations and warranties set forth in Section 4.02 of the
Master Agreement was true and correct on the "Closing Date" under the Master
Agreement (as such term is defined therein) with respect to each Mortgage Loan
and, to the best of the Seller's knowledge (without imposing any additional
duties and burdens on the Seller other than those incidental to servicing the
Mortgage Loans), is true and correct as if stated and made on the Issue Date
hereunder. The Seller agrees that it shall be deemed to make as of the date of
substitution with respect to any Replacement Mortgage Loan (as defined in the
Pooling and Servicing Agreement) that is substituted by the Seller for a
Mortgage Loan in the manner set forth in Section 3 hereof, to and for the
benefit of DLJMC, Column, the Depositor, their affiliates, the Trustee and the
Certificateholders, each of the representations and warranties set forth in
Sections 4.01 and 4.02 of the Master Agreement as if stated and made on the date
of substitution, with any conforming changes necessary due to the fact that such
Replacement Mortgage Loan was not purchased pursuant to the Master Agreement.
SECTION 3. Cure, Repurchase, Substitution and Indemnity Obligations of the
Seller. Each of the representations and warranties contained and/or referred to
in Section 2 shall survive the transfer of the Mortgage Loans by DLJMC to
Column, by Column to the Depositor and by the Depositor to the Trustee, for the
benefit of the Certificateholders, and shall inure to the benefit of DLJMC and
its successors and assigns (the holder(s) of any Mortgage Loan or related REO
Property, including, without limitation, the Trustee for the benefit of the
Certificateholders, being herein referred to as the "Owner" thereof),
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
assignment of Mortgage or DLJMC's, Column's, the Depositor's or the Trustee's
examination of any Mortgage File. Upon discovery by either the Seller or the
related Owner of a breach of any of the foregoing representations and warranties
with respect to any Mortgage Loan or related REO Property that materially and
adversely affects the value of such Mortgage Loan or REO Property or the
interest of the related Owner therein (any such breach, a "Material Breach"),
the party discovering such breach shall give prompt written notice to the other.
Within sixty (60) days of the earlier of either discovery by or notice to
the Seller of any Material Breach (other than a Material Breach involving any
representation or warranty made pursuant to Section 2 hereof that is set forth
in Section 4.01 of the Master Agreement), the Seller shall use its best efforts
to cure such Material Breach in all material respects and, if such Material
Breach cannot be cured within such 60-day period, the Seller shall, at the
related Owner's option, repurchase the affected Mortgage Loan or REO Property at
the Repurchase Price (as defined in the Master Agreement); provided, however,
that if the Seller's obligation to repurchase such affected Mortgage Loan or REO
Property as described above arises within the three-month period commencing on
the Issue Date (or within the two-year period commencing on the Issue Date if
the affected Mortgage Loan or REO Property is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the affected Mortgage Loan or REO Property is then
subject to the Pooling and Servicing Agreement and is not a Mortgage Loan that
(or REO Property related to a Mortgage Loan that) had been substituted for a
Mortgage Loan in the manner described hereinbelow, the Seller may, at its
option, in lieu of repurchasing such affected Mortgage Loan (but no later than
the repurchase would have to have been completed), (a) replace such affected
Mortgage Loan or REO Property with one or more Qualifying Substitute Mortgage
Loans (as defined in the Pooling and Servicing Agreement) that are approved by
Column and pay any corresponding Substitution Shortfall Amount (as defined in
the Pooling and Servicing Agreement), such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement,
and (b) deliver a certification to the Trustee to the effect that such
substitute mortgage loan satisfies or such substitute mortgage loans satisfy, as
the case may be, all of the requirements of the definition of
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"Qualifying Substitute Mortgage Loan" in the Pooling and Servicing Agreement.
The Seller may request that the related Owner extend the 60-day period
referenced above within which the Seller must cure, repurchase or replace a
Mortgage Loan or REO Property affected by such a Material Breach, to ninety (90)
or more days (but not more than one hundred fifty (150) days) following the
earlier of either discovery by or notice to the Seller of such Material Breach,
by delivering a written request to the related Owner, together with evidence
that the Seller is diligently proceeding to cure such breach and will require
the requested extension to effect such cure; provided, however, that the related
Owner may determine to accept or deny any such request in its sole discretion,
without limitation. For purposes of this section, no such request shall be
deemed to have been accepted by the related Owner unless the related Owner has
affirmatively and expressly stated in writing its acceptance of such request. If
a Material Breach involves any representation or warranty made pursuant to
Section 2 hereof that is set forth in Section 4.01 of the Master Agreement and
such Material Breach cannot be cured within ninety (90) days of the earlier of
either discovery by or notice to the Seller of such Material Breach, any or all
of the Mortgage Loans and/or related REO Properties shall, at the option of the
related Owner, be repurchased (with no option to substitute) by the Seller at
the applicable aggregate Repurchase Price. Any repurchase of Mortgage Loans
and/or REO Properties or payment of any Substitution Shortfall Amount pursuant
to the foregoing provisions of this Section 3 shall be accomplished by wire
transfer of immediately available funds in the amount of the Repurchase Price or
Substitution Shortfall Amount, as applicable, pursuant to wiring instructions
furnished by the related Owner to the Seller.
At the time of the repurchase of or substitution for any Mortgage Loan or
REO Property as contemplated by the preceding paragraph, the related Owner and
Seller shall arrange for the reassignment of such Mortgage Loan or the
conveyance of such REO Property, as the case may be, to the Seller and the
delivery to the Seller of any documents held by or on behalf of the related
Owner relating to such Mortgage Loan or REO Property, as the case may be. With
respect to each Mortgage Loan and REO Property to be repurchased or replaced as
contemplated by the preceding sentence, at the time the Repurchase Price or
Substitution Shortfall Amount, as applicable, is wire transferred to or at the
direction of the related Owner, the Seller shall, simultaneously with the
initiation of such wire transfer, give written notice to the related Owner that
such wire transfer has been initiated.
In addition to such cure and repurchase or substitution obligation, the
Seller shall indemnify the related Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses incurred in
connection with any claim, demand, defense, or assertion based on or grounded
upon, or resulting from, a breach by the Seller of the representations and
warranties made pursuant to Section 2 hereof. The obligations of the Seller set
forth in this Section 3 to cure or to repurchase or replace a defective Mortgage
Loan or REO Property and to indemnify the related Owner as provided in this
Section 3 constitute the sole remedies of the related Owner respecting a breach
of the foregoing representations and warranties.
SECTION 4. Indemnification. (a) The Seller will indemnify and hold harmless
DLJMC, Column, the Depositor, their affiliates, and each Person, if any, who
controls DLJMC, Column or the Depositor within the meaning of the Securities Act
of 1933, as amended (the "Securities Act"; and all of the foregoing Persons,
collectively, "DLJ"), against any losses, claims, damages or liabilities to
which DLJ may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
(each, a "Liability") arise out of or are based upon any untrue statement of any
material fact contained in any written information regarding the Seller provided
by the Seller to DLJ ("Seller Information") for inclusion in the prospectus,
private placement memorandum and/or other disclosure document or any amendment
or supplement thereto (each, an "Offering Document") relating to the offering of
any securities evidencing ownership interests in the Mortgage Loans or
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<PAGE>
which arise out of or are based upon any omission to state in the Seller
Information a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and will reimburse DLJ for any legal or other expenses
reasonably incurred by DLJ in connection with investigating or defending any
such Liability.
(b) Promptly after receipt by a party with a right to indemnification under
this section (an "Indemnified Party") of notice of the commencement of any
action, such Indemnified Party will, if a claim in respect thereof is to be made
against the Seller (the "Indemnifying Party") under this section notify the
Indemnifying Party of the commencement thereof; but the omission so to notify
the Indemnifying Party will not relieve the Indemnifying Party from any
liability which it may have to any Indemnified Party otherwise than under this
section. In case any such action is brought against an Indemnified Party, and it
notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, to assume the
defense thereof, with counsel satisfactory to such Indemnified Party; provided,
however, that, if the defendants in any such action include both the Indemnified
Party and the Indemnifying Party and the Indemnified Party shall have reasonably
considered that there may be legal defenses available to it and/or other
Indemnified Parties which are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or Parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
Parties. Upon receipt of notice by such Indemnified Party of the Indemnifying
Party's election to so assume the defense of such action and approval by such
Indemnified Party of counsel, the Indemnifying Party will not be liable to such
Indemnified Party under this section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof unless (i) the Indemnified Party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the Indemnifying
Party shall not be liable for the expenses of more than one such separate
counsel), (ii) the Indemnifying Party shall not have employed counsel
satisfactory to the Indemnified Party within a reasonable period after notice of
commencement of the action or (iii) the Indemnifying Party has authorized the
employment of counsel for the Indemnified Party at the expense of the
Indemnifying Party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in clause (i) or
(iii).
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection (a) of
this Section 4 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Seller on the one hand, and DLJMC on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by DLJ
in such proportions that DLJ is responsible for its pro rata portion of such
losses, liabilities, claims, damages and expenses determined in accordance with
the ratio that (i) the difference between the purchase price paid to the Seller
by DLJMC for the Mortgage Loans and the aggregate resale price received by
DLJMC, bears to (ii) the aggregate resale price received by DLJMC, and the
Seller shall be responsible for the balance; provided, however, that no Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation. For purposes of this section,
each Person, if any, who controls DLJ within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as DLJ.
SECTION 5. Assignment of this Seller's Warranty Certificate. The rights and
obligations of the Seller under this Seller's Warranty Certificate may not be
assigned, pledged or hypothecated by the Seller without the consent of DLJMC and
its successors and assigns; except
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<PAGE>
that any Person into which the Seller may be merged or consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the Seller hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The rights and obligations of
DLJMC under this Seller's Warranty Certificate may, however, be assigned in
whole or in part by DLJMC and its successors and assigns in connection with any
transfer of one or more Mortgage Loans. Without limiting the generality of the
foregoing, the Seller hereby acknowledges and approves the assignments
contemplated in the Preliminary Statement hereto.
SECTION 6. Seller's Warranty Certificate Supersedes Contrary Provisions in
Master Agreement. This Seller's Warranty Certificate supersedes any contrary
provisions of the Master Agreement, and constitutes an amendment of such
contrary provisions, insofar as (but only insofar as) such contrary provisions
of the Master Agreement relate to the Mortgage Loans. The rights and obligations
of the Seller and DLJMC under the Master Agreement are otherwise unaffected, and
the provisions of the Master Agreement otherwise remain in full force and
effect.
SECTION 7. Description of the Seller. In connection with the offering of
the Certificates pursuant to the Offering Documents, the Seller authorizes the
inclusion in the Offering Documents of the description of the Seller, attached
as Exhibit A hereto, and hereby represents and warrants that such description
does not contain any material mistatements of fact.
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<PAGE>
IN WITNESS WHEREOF, the Seller has caused its name to be signed by its duly
authorized officer as of the date first above written.
ARCS COMMERCIAL MORTGAGE CO., L.P.
By:________________________________________
Name:
Title:
Acknowledged and Accepted
DLJ MORTGAGE CAPITAL, INC.
By: ________________________________
Name:
Title:
<PAGE>
EXHIBIT A
ARCS Commercial Mortgage Co., L.P. Created in 1995 and headquartered in
Calabasas Hills, California, ARCS originates, underwrites, closes, and services
all types of commercial property loans through a nationwide network of twelve
offices. In 1997, ARCS closed $752 million of loans secured by 147 properties,
most of which were originated under the FNMA DUS Program. ARCS has been the
number one FNMA DUS multifamily loan originator two years in a row.
<PAGE>
SCHEDULE 1
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Property Name Manager Address Originator
- ------------- ------- ------- ----------
<S> <C> <C> <C>
Savoy Condominiums Hurt & Stell 303 Detroit Avenue, ARCS
Management, LLC Lubbock TX 79415
Sepulveda Crest Apartments G.H. Cooper Properties, 6640 Sepulveda ARCS
Inc. Boulevard, Los
Angeles CA 91411
</TABLE>
<PAGE>
EXHIBIT N-2
FORM OF THIRD PARTY ORIGINATOR AGREEMENT WITH ITLA
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of June ___, 1998 (this
"Seller's Warranty Certificate"), is executed and delivered by ITLA Funding
Corporation (the "Seller"), in favor of DLJ Mortgage Capital, Inc. ("DLJMC"),
its successors and assigns.
PRELIMINARY STATEMENT
The Seller and DLJMC are parties to a Master Mortgage Loan Purchase
Agreement dated as of November 4, 1996 (the "Master Agreement") and amended as
of October 31, 1997. The mortgage loan or, if more than one, the mortgage loans
(in either case, the "Mortgage Loans") identified on the Mortgage Loan Schedule
attached as Schedule 1 hereto have been previously sold by the Seller to DLJMC
pursuant to the Master Agreement. DLJMC intends to transfer the Mortgage Loans
to Column Financial, Inc. ("Column") pursuant to a Bill of Sale (the "DLJMC
Column Agreement"); Column in turn intends to transfer the Mortgage Loans to DLJ
Commercial Mortgage Corp. (the "Depositor") pursuant to a Mortgage Loan Purchase
[and Sale] Agreement (the "Column - Depositor Agreement"); and the Depositor in
turn intends to deposit the Mortgage Loans into a trust fund to be evidenced by
the Depositor's Commercial Mortgage Pass-Through Certificates, Series 1998-CG1
(the "Certificates"). The Certificates will be issued on June ___, 1998 (the
"Closing Date") pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of June 1, 1998, among the Depositor, GE
Loan Services, Inc., as servicer, Midland Loan Services, L.P., as special
servicer, Norwest Bank Minnesota, National Association, as trustee (in such
capacity, the "Trustee") and REMIC administrator. The Seller agreed in the
Master Agreement to make certain representations and warranties, repurchase
certain Mortgage Loans and provide certain indemnification in connection with
any sale of the Mortgage Loans to a trust fund to be formed as part of a
mortgage pass-through transaction, and such agreement was partial consideration
for the execution and performance of the Master Agreement by DLJMC. Capitalized
terms used but not defined herein shall have the respective meanings assigned to
such terms in the Master Agreement or, if not defined in the Master Agreement,
shall have the respective meanings assigned to such terms in the Pooling and
Servicing Agreement.
Pursuant to the terms of the DLJMC - Column Agreement, DLJMC shall assign
to Column all of DLJMC's right, title and interest in and to the Mortgage Loans
and under this Seller's Warranty Certificate (except under Section 4 hereof);
pursuant to the Column - Depositor Agreement, Column shall assign to the
Depositor, among other things, all of Column's right, title and interest in and
to the Mortgage Loans and, to the extent assigned to it under the DLJMC Column
Agreement, under this Seller's Warranty Certificate; and pursuant to the Pooling
and Servicing Agreement, the Depositor shall assign to the Trustee, for the
benefit of the holders of the Certificates (the "Certificateholders"), among
other things, all of the Depositor's right, title and interest in and to the
Mortgage Loans and, to the extent assigned to it under the Column Depositor
Agreement, under this Seller's Warranty Certificate.
SECTION 1. Delivery of Mortgage Files. The Seller agrees that it shall
deliver to the Trustee as assignee of the Depositor (or, if so directed by
DLJMC, to a custodian appointed by the Trustee (a "Custodian")), under the
Pooling and Servicing Agreement, all of the documents required in the Mortgage
Files, in the manner and no later than the times otherwise required by the
Master Agreement, in each case to the extent the Seller has not delivered such
documents to DLJMC or its designee prior to the date hereof.
SECTION 2. Representations and Warranties of the Seller. Pursuant to
Sections 4.01, 4.02 and 7.01 of the Master Agreement, the Seller hereby
represents and warrants as of the Closing Date to and for the benefit of DLJMC
and its successors in interest in the Mortgage Loans
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<PAGE>
that (a) each of the representations and warranties set forth in Section 4.01 of
the Master Agreement is true and correct as if stated and made on the Closing
Date hereunder, (b) each of the representations and warranties set forth in
Section 4.02 of the Master Agreement was true and correct on the closing date of
each Mortgage Loan and, to the Seller's actual knowledge, are true and correct
as if stated and made on the Closing Date hereunder and (c) at the time of sale
to DLJMC each Mortgage Loan bore interest at a rate that remains fixed
throughout the term of such Mortgage Loan. The Seller agrees that it shall be
deemed to make as of the date of substitution with respect to any Replacement
Mortgage Loan (as defined in the Pooling and Servicing Agreement) that is
substituted for a Mortgage Loan in the manner set forth in Section 3 hereof, to
and for the benefit of DLJMC and its successors in interest in such Replacement
Mortgage Loan, each of the representations and warranties set forth in Sections
4.01 and 4.02 of the Master Agreement as if stated and made on the date of
substitution, with any conforming changes necessary due to the fact that such
Replacement Mortgage Loan was not purchased pursuant to the Master Agreement.
SECTION 3. Cure, Repurchase, Substitution and Indemnity Obligations of the
Seller. Each of the representations and warranties contained and/or referred to
in Section 2 shall survive the transfer of the Mortgage Loans by DLJMC to
Column, by Column to the Depositor and by the Depositor to the Trustee, for the
benefit of the Certificateholders, and shall inure to the benefit of DLJMC and
its successors and assigns (the holder(s) of any Mortgage Loan or related REO
Property, including, without limitation, the Trustee for the benefit of the
Certificateholders, being herein referred to as the "Owner" thereof),
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
assignment of Mortgage or DLJMC's, Column's, the Depositor's or the Trustee's
examination of any Mortgage File. Upon discovery by either the Seller or the
related Owner of a breach of any of the foregoing representations and warranties
with respect to any Mortgage Loan or related REO Property that materially and
adversely affects the value of such Mortgage Loan or REO Property or the
interest of the related Owner therein (any such breach, a "Material Breach"),
the party discovering such breach shall give prompt written notice to the other.
Within sixty (60) days of the earlier of either discovery by or notice to
the Seller of any Material Breach (other than a Material Breach involving any
representation or warranty made pursuant to Section 2 hereof that is set forth
in Section 4.01 of the Master Agreement), the Seller shall use its best efforts
to cure such Material Breach in all material respects and, if such Material
Breach cannot be cured within such 60-day period, the Seller shall, at the
related Owner's option, repurchase the affected Mortgage Loan or REO Property at
the Repurchase Price (as defined in the Master Agreement); provided, however,
that if the Seller's obligation to repurchase such affected Mortgage Loan or REO
Property as described above arises within the three-month period commencing on
the Closing Date (or within the two-year period commencing on the Closing Date
if the affected Mortgage Loan or REO Property is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the affected Mortgage Loan or REO Property is then
subject to the Pooling and Servicing Agreement and is not a Mortgage Loan that
(or REO Property related to a Mortgage Loan that) had been substituted for a
Mortgage Loan in the manner described hereinbelow, the Seller may, at its
option, in lieu of repurchasing such affected Mortgage Loan (but no later than
the repurchase would have to have been completed), (a) replace such affected
Mortgage Loan or REO Property with one or more Qualifying Substitute Mortgage
Loans (as defined in the Pooling and Servicing Agreement) that are approved by
Column and pay any corresponding Substitution Shortfall Amount (as defined in
the Pooling and Servicing Agreement), such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement,
and (b) deliver a certification to the Trustee to the effect that such
substitute mortgage loan satisfies or such substitute mortgage loans satisfy, as
the case may be, all of the requirements of the definition of "Qualifying
Substitute Mortgage Loan" in the Pooling and Servicing Agreement. The Seller may
request that the related Owner extend the 60-day period referenced above within
which the Seller
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<PAGE>
must cure, repurchase or replace a Mortgage Loan or REO Property affected by
such a Material Breach, to ninety (90) or more days (but not more than one
hundred fifty (150) days) following the earlier of either discovery by or notice
to the Seller of such Material Breach, by delivering a written request to the
Owner, together with evidence that the Seller is diligently proceeding to cure
such breach and will require the requested extension to effect such cure;
provided, however, that the related Owner may determine to accept or deny any
such request in its sole discretion, without limitation. For purposes of this
section, no such request shall be deemed to have been accepted by the related
Owner unless the related Owner has affirmatively and expressly stated in writing
its acceptance of such request. If a Material Breach involves any representation
or warranty made pursuant to Section 2 hereof that is set forth in Section 4.01
of the Master Agreement and such Material Breach cannot be cured within ninety
(90) days of the earlier of either discovery by or notice to the Seller of such
Material Breach, any or all of the Mortgage Loans and/or related REO Properties
shall, at the option of the related Owner, be repurchased (with no option to
substitute) by the Seller at the Repurchase Price. Any repurchase of Mortgage
Loans and/or REO Properties or payment of any Substitution Shortfall Amount
pursuant to the foregoing provisions of this Section 3 shall be accomplished by
wire transfer of immediately available funds in the amount of the Repurchase
Price or Substitution Shortfall Amount, as applicable, pursuant to wiring
instructions furnished by the related Owner to the Seller.
At the time of the repurchase of or substitution for any Mortgage Loan or
REO Property as contemplated by the preceding paragraph, the related Owner and
Seller shall arrange for the reassignment of such Mortgage Loan or the
conveyance of such REO Property, as the case may be, to the Seller and the
delivery to the Seller of the items contemplated by clauses (i) - (iv) of the
third paragraph of Section 4.03 of the Master Agreement relating to such
Mortgage Loan or REO Property, as the case may be. With respect to each Mortgage
Loan and REO Property to be repurchased or replaced as contemplated by the
preceding sentence, at the time the Repurchase Price or Substitution Shortfall
Amount, as applicable, is wire transferred to or at the direction of the related
Owner, the Seller shall, simultaneously with the initiation of such wire
transfer, give written notice to the related Owner that such wire transfer has
been initiated.
In addition to such cure and repurchase or substitution obligation, the
Seller shall indemnify the related Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses incurred in
connection with any claim, demand, defense, or assertion based on or grounded
upon, or resulting from, a breach by the Seller of the representations and
warranties made pursuant to Section 2 hereof as and to the extent contemplated
by the fourth paragraph of Section 4.03 of the Master Agreement. The obligations
of the Seller set forth in this Section 3 to cure or to repurchase or replace a
defective Mortgage Loan or REO Property and to indemnify the related Owner as
provided in this Section 3 constitute the sole remedies of the related Owner
respecting a breach of the foregoing representations and warranties.
SECTION 4. Indemnification. (a) Pursuant to Section 7.01 of the Master
Agreement, the Seller will indemnify and hold harmless DLJMC and its successors
and assigns in respect of the Mortgage Loans (all of the foregoing Persons,
collectively, "DLJ"), against any and all liabilities, losses and expenses to
which DLJ may become subject, under the Securities Act of 1933, as amended (the
"Securities Act"), insofar as such liabilities, losses and expenses (or actions
in respect thereof) (each, a "Liability") arise out of or are based upon any
material misstatement in the information provided by the Seller to DLJ ("Seller
Information") which is contained in the prospectus, private placement memorandum
and/or other disclosure document or any amendment or supplement thereto (each,
an "Offering Document") relating to the offering of any securities evidencing
ownership interests in the Mortgage Loans or which arise out of or are based
upon any omission to state in such Offering Document a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Seller shall not be liable in any such
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<PAGE>
case to the extent and only to the extent that any Liability arises out of or is
based upon any misstatement or omission made in an Offering Document in reliance
upon and in conformity with information provided by or on behalf of any Person
other than the Seller. DLJMC hereby agrees to indemnify the Seller for any
Liability arising out of or based upon Seller Information which is not
accurately reflected in any Offering Document.
(b) Promptly after receipt by a party with a right to indemnification under
this section (an "Indemnified Party") of notice of the commencement of any
action, such Indemnified Party will, if a claim in respect thereof is to be made
against a party with an indemnification obligation under this section (the
"Indemnifying Party"), notify the Indemnifying Party of the commencement
thereof; but the omission so to notify the Indemnifying Party will not relieve
the Indemnifying Party from any liability which it may have to any Indemnified
Party otherwise than under this section. In case any such action is brought
against an Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
Indemnified Party promptly after receiving the aforesaid notice from such
Indemnified Party, to assume the defense thereof, with counsel satisfactory to
such Indemnified Party; provided, however, that, if the defendants in any such
action include both the Indemnified Party and the Indemnifying Party and the
Indemnified Party shall have reasonably considered that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to the Indemnifying Party, the Indemnified
Party or Parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Party or Parties. Upon receipt of notice by such
Indemnified Party of the Indemnifying Party's election to so assume the defense
of such action and approval by such Indemnified Party of counsel, the
Indemnifying Party will not be liable to such Indemnified Party under this
section for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Indemnifying Party shall not be
liable for the expenses of more than one separate counsel), (ii) the
Indemnifying Party shall not have employed counsel satisfactory to the
Indemnified Party within a reasonable period after notice of commencement of the
action or (iii) the Indemnifying Party has authorized the employment of counsel
for the Indemnified Party at the expense of the Indemnifying Party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in clause (i) or (iii).
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection (a) of
this Section 4 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Seller on the one hand, and DLJMC on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Seller and DLJ in such proportions that DLJMC is responsible for DLJ's pro rata
portion of such losses, liabilities, claims, damages and expenses determined in
accordance with the ratio that the difference between the purchase price paid to
the Seller by DLJMC for the Mortgage Loans and the aggregate resale price
received by DLJMC, bears to the aggregate resale price received by DLJMC, and
the Seller shall be responsible for the balance; provided, however, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
SECTION 5. Assignment of this Seller's Warranty Certificate. The rights and
obligations of the Seller under this Seller's Warranty Certificate may not be
assigned, pledged or hypothecated by the Seller without the consent of DLJMC and
its successors and assigns; except that any Person into which the Seller may be
merged or consolidated, or any Person resulting
-4-
<PAGE>
from any merger, conversion or consolidation to which the Seller shall be a
party, or any Person succeeding to the business of the Seller, shall be the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. The rights and obligations of DLJMC under this
Seller's Warranty Certificate may, however, be assigned in whole or in part by
DLJMC and its successors and assigns in connection with any transfer of one or
more Mortgage Loans. Without limiting the generality of the foregoing, the
Seller hereby acknowledges and approves the assignments contemplated in the
Preliminary Statement hereto.
SECTION 6. Seller's Warranty Certificate supersedes contrary provisions in
Master Agreement. This Seller's Warranty Certificate supersedes any contrary
provisions of the Master Agreement insofar as (but only insofar as) such
contrary provisions of the Master Agreement relate to the Mortgage Loans. The
rights and obligations of the Seller and DLJMC under the Master Agreement are
otherwise unaffected, and the provisions of the Master Agreement otherwise
remain in full force and effect.
SECTION 7. Description of the Seller. In connection with the offering of
the Certificates pursuant to the Offering Documents, the Seller authorizes the
inclusion in the Offering Documents of the description of the Seller, attached
as Exhibit A hereto, and hereby represents and warrants that such description
does not contain any material misstatements of fact.
-5-
<PAGE>
IN WITNESS WHEREOF, the Seller has caused its name to be signed by its duly
authorized officer as of the date first above written.
ITLA FUNDING CORPORATION
By:___________________________
Name:
Title:
Accepted and Approved:
DLJ MORTGAGE CAPITAL, INC.
By:___________________________
Name:
Title:
<PAGE>
EXHIBIT A
ITLA Funding Corporation. ITLA Funding Corporation is a national mortgage
bank headquartered in Encino, California. The company is a wholly-owned
subsidiary of ITLA Capital Corporation, a thrift holding company located in La
Jolla, California and is a sister company to Imperial Thrift and Loan
Association.
-7-
<PAGE>
SCHEDULE 1
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Property Name Manager Address Originator
------------- ------- ------- ----------
<S> <C> <C> <C>
Royal Plaza Hotel - AJL Marlborough, Inc. 181 Boston Post Road, ITLA
Marlborough Marlborough MA 01752
Royal Plaza Hotel - AJL Fitchburg, Inc. 150 Royal Plaza Drive, ITLA
Fitchburg Fitchburg MA 01420
Holiday Inn Express- Sterling Management, Ltd. 9220 E. Mission Avenue, ITLA
Washington Spokane WA 99206
Sherman Oaks VDA Management 14144 Ventura Blvd, ITLA
Services, Inc. .Los Angeles CA 91403
Sunrise Village Owner Managed 48 West 2nd South, ITLA
Apartments Rexburg ID 83440
</TABLE>
-8-
<PAGE>
EXHIBIT N-3
FORM OF THIRD PARTY ORIGINATOR AGREEMENT WITH UNION CAPITAL
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of June ___, 1998 (this
"Seller's Warranty Certificate"), is executed and delivered by Union Capital
Investments, LLC (the "Seller"), in favor of DLJ Mortgage Capital, Inc.
("DLJMC"), its successors and assigns.
PRELIMINARY STATEMENT
The Seller and DLJMC are parties to a Master Mortgage Loan Purchase
Agreement dated as of January 23, 1996 (the "Master Agreement") and amended as
of February 22, 1998. The mortgage loan or, if more than one, the mortgage loans
(in either case, the "Mortgage Loans") identified on the Mortgage Loan Schedule
attached as Schedule 1 hereto have been previously sold by the Seller to DLJMC
pursuant to the Master Agreement. DLJMC intends to transfer the Mortgage Loans
to Column Financial, Inc. ("Column") pursuant to a Bill of Sale (the "DLJMC
Column Agreement"); Column in turn intends to transfer the Mortgage Loans to DLJ
Commercial Mortgage Corp. (the "Depositor") pursuant to a Mortgage Loan Purchase
[and Sale] Agreement (the "Column - Depositor Agreement"); and the Depositor in
turn intends to deposit the Mortgage Loans into a trust fund to be evidenced by
the Depositor's Commercial Mortgage Pass-Through Certificates, Series 1998-CG1
(the "Certificates"). The Certificates will be issued on or about June __, 1998
(the actual date of issuance, the "Closing Date") pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), to be dated as of
June 1, 1998, among the Depositor, GE Capital Loan Services, Inc., as servicer,
Midland Loan Services, Inc., as special servicer, and Norwest Bank Minnesota,
National Association, as trustee (in such capacity, the "Trustee") and REMIC
administrator. The Seller agreed in the Master Agreement to make certain
representations and warranties, repurchase certain Mortgage Loans and provide
certain indemnification in connection with any sale of the Mortgage Loans to a
trust fund to be formed as part of a mortgage pass-through transaction, and such
agreement was partial consideration for the execution and performance of the
Master Agreement by DLJMC. Capitalized terms used but not defined herein shall
have the respective meanings assigned to such terms in the Master Agreement or,
if not defined in the Master Agreement, shall have the respective meanings
assigned to such terms in the Pooling and Servicing Agreement.
Pursuant to the terms of the DLJMC - Column Agreement, DLJMC shall assign
to Column all of DLJMC's right, title and interest in and to the Mortgage Loans
and under this Seller's Warranty Certificate (except under Section 4 hereof);
pursuant to the Column - Depositor Agreement, Column shall assign to the
Depositor, among other things, all of Column's right, title and interest in and
to the Mortgage Loans and, to the extent assigned to it under the DLJMC Column
Agreement, under this Seller's Warranty Certificate; and pursuant to the Pooling
and Servicing Agreement, the Depositor shall assign to the Trustee, for the
benefit of the holders of the Certificates (the "Certificateholders"), among
other things, all of the Depositor's right, title and interest in and to the
Mortgage Loans and, to the extent assigned to it under the Column Depositor
Agreement, under this Seller's Warranty Certificate.
SECTION 1. Delivery of Mortgage Files. The Seller agrees that it shall
deliver to the Trustee as assignee of the Depositor (or, if so directed by
DLJMC, to a custodian appointed by the Trustee (a "Custodian")), under the
Pooling and Servicing Agreement, all of the documents required in the Mortgage
Files, at the times and in the manner otherwise required by the Pooling and
Servicing Agreement, in each case to the extent the Seller has not delivered
such documents to DLJMC prior to the date hereof.
SECTION 2. Representations and Warranties of the Seller. Pursuant to
Section 7.01 of the Master Agreement, the Seller hereby represents and warrants
as of the Closing Date to and for the benefit of DLJMC, Column, the Depositor,
their affiliates, the Trustee and the
-1-
<PAGE>
Certificateholders that (a) each of the representations and warranties set forth
in Section 4.01 and Section 4.02 of the Master Agreement is true and correct as
if stated and made on the Closing Date hereunder and (b) that each Mortgage Loan
bears interest at a rate that remains fixed throughout the term of such Mortgage
Loan. The Seller agrees that it shall be deemed to make as of the date of
substitution with respect to any Replacement Mortgage Loan (as defined in the
Pooling and Servicing Agreement) that is substituted by the Seller for a
Mortgage Loan in the manner set forth in Section 3 hereof, to and for the
benefit of DLJMC, Column, the Depositor, their affiliates, the Trustee and the
Certificateholders, each of the representations and warranties set forth in
Sections 4.01 and 4.02 of the Master Agreement as if stated and made on the date
of substitution, with any conforming changes necessary due to the fact that such
Replacement Mortgage Loan was not purchased pursuant to the Master Agreement.
SECTION 3. Cure, Repurchase, Substitution and Indemnity Obligations of the
Seller. Each of the representations and warranties contained and/or referred to
in Section 2 shall survive the transfer of the Mortgage Loans by DLJMC to
Column, by Column to the Depositor and by the Depositor to the Trustee, for the
benefit of the Certificateholders, and shall inure to the benefit of DLJMC and
its successors and assigns (the holder(s) of any Mortgage Loan or related REO
Property, including, without limitation, the Trustee for the benefit of the
Certificateholders, being herein referred to as the "Owner" thereof),
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
assignment of Mortgage or DLJMC's, Column's, the Depositor's or the Trustee's
examination of any Mortgage File. Upon discovery by either the Seller or the
related Owner of a breach of any of the foregoing representations and warranties
with respect to any Mortgage Loan or REO Property that materially and adversely
affects the value of such Mortgage Loan or related REO Property or the interest
of the related Owner therein (any such breach, a "Material Breach"), the party
discovering such breach shall give prompt written notice to the other.
Within sixty (60) days of the earlier of either discovery by or notice to
the Seller of any Material Breach (other than a Material Breach involving any
representation or warranty made pursuant to Section 2 hereof that is set forth
in Section 4.01 of the Master Agreement), the Seller shall use its best efforts
to cure such Material Breach in all material respects and, if such Material
Breach cannot be cured within such 60-day period, the Seller shall, at the
related Owner's option, repurchase the affected Mortgage Loan or REO Property at
the Purchase Price (as defined in the Pooling and Servicing Agreement);
provided, however, that if the Seller's obligation to repurchase such affected
Mortgage Loan or REO Property as described above arises within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the affected Mortgage Loan or REO Property is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G- 2(f)), and if the affected Mortgage
Loan or REO Property is then subject to the Pooling and Servicing Agreement and
is not a Mortgage Loan that (or REO Property related to a Mortgage Loan that)
had been substituted for a Mortgage Loan in the manner described hereinbelow,
the Seller may, at its option, in lieu of repurchasing such affected Mortgage
Loan, (a) replace such affected Mortgage Loan or REO Property with one or more
Qualifying Substitute Mortgage Loans (as defined in the Pooling and Servicing
Agreement) that are approved by Column and pay any corresponding Substitution
Shortfall Amount (as defined in the Pooling and Servicing Agreement), such
substitution and payment to be effected in accordance with the terms of the
Pooling and Servicing Agreement, and (b) deliver a certification to the Trustee
to the effect that such substitute mortgage loan satisfies or such substitute
mortgage loans satisfy, as the case may be, all of the requirements of the
definition of "Qualifying Substitute Mortgage Loan" in the Pooling and Servicing
Agreement. The Seller may request that the related Owner extend the 60-day
period referenced above within which the Seller must cure, repurchase or replace
a Mortgage Loan or REO Property affected by such a Material Breach, to ninety
(90) or more days (but not more than one hundred fifty (150) days) following the
earlier of either discovery by or notice to the Seller of such Material Breach,
by delivering a written request to the related Owner, together with
-2-
<PAGE>
evidence that the Seller is diligently proceeding to cure such breach and will
require the requested extension to effect such cure; provided, however, that the
related Owner may determine to accept or deny any such request in its sole
discretion, without limitation. For purposes of this section, no such request
shall be deemed to have been accepted by the related Owner unless the related
Owner has affirmatively and expressly stated in writing its acceptance of such
request. If a Material Breach involves any representation or warranty made
pursuant to Section 2 hereof that is set forth in Section 4.01 of the Master
Agreement and such Material Breach cannot be cured within ninety (90) days of
the earlier of either discovery by or notice to the Seller of such Material
Breach, any or all of the Mortgage Loans and/or related REO Properties shall, at
the option of the related Owner, be repurchased (with no option to substitute)
by the Seller at the Purchase Price. Any repurchase of Mortgage Loans and/or REO
Properties or payment of any Substitution Shortfall Amount pursuant to the
foregoing provisions of this Section 3 shall be accomplished by wire transfer of
immediately available funds in the amount of the Purchase Price or Substitution
Shortfall Amount, as applicable, pursuant to wiring instructions furnished by
the related Owner to the Seller.
At the time of the repurchase of or substitution for any Mortgage Loan or
REO Property as contemplated by the preceding paragraph, the related Owner and
Seller shall arrange for the reassignment of such Mortgage Loan or the
conveyance of such REO Property, as the case may be, to the Seller and the
delivery to the Seller of any documents held by or on behalf of the related
Owner relating to such Mortgage Loan or REO Property, as the case may be. With
respect to each Mortgage Loan and REO Property to be repurchased or replaced as
contemplated by the preceding sentence, at the time the Purchase Price or
Substitution Shortfall Amount, as applicable, is wire transferred to or at the
direction of the related Owner, the Seller shall, simultaneously with the
initiation of such wire transfer, give written notice to the related Owner that
such wire transfer has been initiated.
In addition to such cure and repurchase or substitution obligation, the
Seller shall indemnify the related Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses incurred in
connection with any claim, demand, defense, or assertion based on or grounded
upon, or resulting from, a breach by the Seller of the representations and
warranties made pursuant to Section 2 hereof. The obligations of the Seller set
forth in this Section 3 to cure or to repurchase or replace a defective Mortgage
Loan or REO Property and to indemnify the related Owner as provided in this
Section 3 constitute the sole remedies of the related Owner respecting a breach
of the foregoing representations and warranties.
SECTION 4. Indemnification. (a) The Seller will indemnify and hold harmless
DLJMC, Column, their affiliates, and each Person, if any, who controls DLJMC or
Column within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"; and all of the foregoing Persons, collectively, "DLJ"),
against any losses, claims, damages or liabilities to which DLJ may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (each, a "Liability")
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact provided by the Seller to DLJ ("Seller Information") which
is contained in the prospectus, private placement memorandum and/or other
disclosure document or any amendment or supplement thereto (each, an "Offering
Document") relating to the offering of any securities evidencing ownership
interests in the Mortgage Loans or which arise out of or are based upon any
omission or alleged omission to state in such Offering Document a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
will reimburse DLJ for any legal or other expenses reasonably incurred by DLJ in
connection with investigating or defending any such Liability; provided,
however, that the Seller shall not be liable in any such case to the extent and
only to the extent that any Liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made
-3-
<PAGE>
in an Offering Document in reliance upon and in conformity with information
provided by or on behalf of any Person other than the Seller. DLJMC hereby
agrees to indemnify the Seller for any Liability arising out of or based upon
Seller Information which is not accurately reflected in any Offering Document.
(b) Promptly after receipt by a party with a right to indemnification under
this section (an "Indemnified Party") of notice of the commencement of any
action, such Indemnified Party will, if a claim in respect thereof is to be made
against a party with an indemnification obligation under this section (the
"Indemnifying Party"), notify the Indemnifying Party of the commencement
thereof; but the omission so to notify the Indemnifying Party will not relieve
the Indemnifying Party from any liability which it may have to any Indemnified
Party otherwise than under this section. In case any such action is brought
against an Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
Indemnified Party promptly after receiving the aforesaid notice from such
Indemnified Party, to assume the defense thereof, with counsel satisfactory to
such Indemnified Party; provided, however, that, if the defendants in any such
action include both the Indemnified Party and the Indemnifying Party and the
Indemnified Party shall have reasonably considered that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to the Indemnifying Party, the Indemnified
Party or Parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Party or Parties. Upon receipt of notice by such
Indemnified Party of the Indemnifying Party's election to so assume the defense
of such action and approval by such Indemnified Party of counsel, the
Indemnifying Party will not be liable to such Indemnified Party under this
section for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Indemnifying Party shall not be
liable for the expenses of more than one separate counsel), (ii) the
Indemnifying Party shall not have employed counsel satisfactory to the
Indemnified Party within a reasonable period after notice of commencement of the
action or (iii) the Indemnifying Party has authorized the employment of counsel
for the Indemnified Party at the expense of the Indemnifying Party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in clause (i) or (iii).
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection (a) of
this Section 4 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Seller on the one hand, and DLJMC on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Seller and DLJ in such proportions that DLJ is responsible for its pro rata
portion of such losses, liabilities, claims, damages and expenses determined in
accordance with the ratio that the (i) difference between the purchase price
paid to the Seller by DLJMC for the Mortgage Loans and the aggregate resale
price received by DLJMC, bears to (ii) the aggregate resale price received by
DLJMC, and the Seller shall be responsible for the balance; provided, however,
that no Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this section, each Person, if any, who controls DLJ within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as
DLJ.
SECTION 5. Assignment of this Seller's Warranty Certificate. The rights and
obligations of the Seller under this Seller's Warranty Certificate may not be
assigned, pledged or hypothecated by the Seller without the consent of DLJMC and
its successors and assigns; except that any Person into which the Seller may be
merged or consolidated, or any Person resulting
-4-
<PAGE>
from any merger, conversion or consolidation to which the Seller shall be a
party, or any Person succeeding to the business of the Seller, shall be the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. The rights and obligations of DLJMC under this
Seller's Warranty Certificate may, however, be assigned in whole or in part by
DLJMC and its successors and assigns in connection with any transfer of one or
more Mortgage Loans. Without limiting the generality of the foregoing, the
Seller hereby acknowledges and approves the assignments contemplated in the
Preliminary Statement hereto.
SECTION 6. Seller's Warranty Certificate Supersedes Contrary Provisions in
Master Agreement. This Seller's Warranty Certificate supersedes any contrary
provisions of the Master Agreement, and constitutes an amendment of such
contrary provisions, insofar as (but only insofar as) such contrary provisions
of the Master Agreement relate to the Mortgage Loans. The rights and obligations
of the Seller and DLJMC under the Master Agreement are otherwise unaffected, and
the provisions of the Master Agreement otherwise remain in full force and
effect.
SECTION 7. Description of the Seller. In connection with the offering of
the Certificates pursuant to the Offering Documents, the Seller authorizes the
inclusion in the Offering Documents of the description of the Seller, attached
as Exhibit A hereto, and hereby represents and warrants that such description
does not contain any material mistatements of fact.
-5-
<PAGE>
IN WITNESS WHEREOF, the Seller has caused its name to be signed by its duly
authorized officer as of the date first above written.
UNION CAPITAL INVESTMENTS, LLC
By:___________________________
Name:
Title:
Acknowledged and Accepted:
DLJ MORTGAGE CAPITAL, INC.
By:____________________________
Name:
Title:
<PAGE>
EXHIBIT A
Union Capital Investments LLC. Union Capital is an Atlanta, Georgia
mortgage banking company, primarily involved in conduit lending which
originates, underwrites and closes first mortgage loans secured by all types of
multifamily and commercial real estate throughout the United States. The
principals of Union Capital have been involved in the conduit lending field
since January of 1993. During 1997, Union Capital closed over 26 commercial
loans totaling approximately $147 million.
<PAGE>
SCHEDULE 1
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Property Name Manager Address Originator
------------- ------- ------- ----------
<S> <C> <C> <C>
Courtyard by Marriott - Larry Blumberg & 451 Creighton Road, Union Capital
Pensacola (1C) Associates, Inc. Pensacola FL 32504
Courtyard by Marriott - Larry Blumberg & 4115 Courtney Drive, Union Capital
Tuscaloosa (1C) Associates, Inc. Tuscaloosa AL 35405
Fairfield Inn - Pensacola Larry Blumberg & 7325 North Davis Union Capital
(1C) Associates, Inc. Highway, Pensacola FL
32504
Fairfield Inn - Birmingham Larry Blumberg & 707 Key Drive, Union Capital
(1C) Associates, Inc. Birmingham AL 35242
Fairfield Inn - Tuscaloosa Larry Blumberg & 4101 Courtney Drive, Union Capital
(1C) Associates, Inc. Tuscaloosa AL 35405
Pellcare Nursing Home - Pellcare Corp. 5941 Old Walkertown Union Capital
Winston-Salem (1G) Road, Winston-Salem
NC 27105
Pellcare Nursing Home - Pellcare Corp. 1125 10th Street Blvd. Union Capital
Hickory (1G) NW, Hickory NC28601
Comfort Inn - Dothan H. Leslie Blumberg 3593 Ross Clark Circle, Union Capital
Dothan AL 36303
Marriott Courtyard - Dothan Larry Blumberg & 3040 Ross Clark Circle, Union Capital
Associates, Inc. Dothan AL 36302
Holiday Inn - Dothan Larry Blumberg & 2195 Ross Clark Circle, Union Capital
Associates, Inc. Dothan AL 36302
4 Hartwell Place Levco, Inc. 4 Hartwell Place, Union Capital
Lexington MA 02173
Alexandria Square Carnegie Management and 949-59 East Aurora Union Capital
Development Corporation Road, Summit OH 44056
Bridgeport Professional Katica Properties, Inc. 7424 Bridgeport Way Union Capital
Building West, Tacoma WA98467
Creekside Mobile Estates John D. Petshow 5101 NE 121st Avenue, Union Capital
Vancouver WA 98682
Fairfield Inn - Dothan Larry Blumberg & 3038 Ross Clark Circle, Union Capital
Associates, Inc. Dothan AL 36302
Valley Manor Karin A. Marshall 856 S. Central Avenue, Union Capital
Kent WA 98032
Colonial Mobile Home Park Owner Managed 2600 East Division Union Capital
Street, Mount Vernon
WA 98274
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
Northlake Quadrangle Spiva/Hill Management, 2200 Northlake Union Capital
Co. Parkway, Atlanta GA
30084
Emerald Park Apartments S&S Property 2200 Flower Tree Circle, Union Capital
Management, Inc. Melbourne FL 32935
Timberline Mobile Home Owner Managed 19625 East Wellesley, Union Capital
Park Otis Ochards WA 99027
Timberland Ridge Fransen Real Estate, Inc. 7501 & 7511 Greenfield Union Capital
Apartments Avenue, Mounds View
MN 55112
Pinecroft Mobile Home Park Owner Managed 11920 East Mansfield Union Capital
Avenue, Spokane WA
99206
</TABLE>
<PAGE>
EXHIBIT O
SCHEDULE OF DESIGNATED ARD LOANS
Number Property Name
274 701 Franklin Center
79 Aspen Park Apartments
54 Aspen Ridge Apartments
149 Aspen Village Apartments
273 Autumn Ridge Apartments
132 Brookside Apartments
114 Canyon Ridge Mobile Home Park
127 Commonwealth Avenue Apartments
116 Days Hotel Timonium
13 Embassy Square Suites
200 Encino Village Center
126 Homewood Village Shopping Center
160 Holiday Inn - Lake Havasu
45 Legacy Drive Villafe Shopping Center
40 Lincoln Village Shopping Center
276 Meriden East Apartments
105 Mervyn's Plaza
287 Park Place Center
142 Pass Christian Village
205 Plantation Village Shopping Center
36 Plaza Mobile Village
84 Rainbow Design Center
268 Rancho San Diego Town & Country
4 Resurgens Plaza
1 The Rivergate Apartments
115 Westlake Crossing Shopping Center
224 White Pines Plaza
<PAGE>
201 Willamette Terrace
