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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) December 3, 1998
DLJ Commercial Mortgage Corp.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 333-59167-01 13-3956945
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
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 December 3, 1998, a single series of certificates, entitled DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1998-CF2 (the "Certificates"), was issued pursuant to a pooling and
servicing agreement (the "Pooling and Servicing Agreement") dated as of
December 1, 1998, by and among DLJ Commercial Mortgage Corp. (the
"Registrant"), Banc One Mortgage Capital Markets, LLC, as Master Servicer and
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 as the
Class S, Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1
and Class B-2 Certificates (the "Underwritten Certificates") were registered
under the Registrant's registration statement on Form S-3 (no. 333-59167-01)
and sold to Donaldson, Lufkin & Jenrette Securities Corporation (the
"Underwriter") pursuant to an underwriting agreement (the "Underwriting
Agreement") dated as of November 20, 1998, by and between the Registrant and
the Underwriter. The Underwriting Agreement is attached hereto as Exhibit 1.1.
In connection with the issuance of the Certificates, Sidley & Austin delivered
its opinion with respect to certain tax matters. A copy of such opinion is
attached hereto as Exhibit 8.1.
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
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1.1 Underwriting Agreement, dated as of November 20, 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 November 1,
1998, DLJ Commercial Mortgage Corp., as depositor, Banc One
Mortgage Capital Markets, LLC, as master servicer and
special servicer, and Norwest Bank Minnesota, National
Association, as trustee and REMIC administrator.
8.1 Opinion of Sidley & Austin with respect to certain tax matters.
23.1 Consent of Sidley & Austin.*
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* Included in Exhibit 8.1
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: December 18, 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
Exhibit No. Description Page No.
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1.1 Underwriting Agreement, dated as of November 20, 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 November
1, 1998, DLJ Commercial Mortgage Corp., as depositor,
Banc One Mortgage Capital Markets, LLC, as master
servicer and special servicer, and Norwest Bank
Minnesota, National Association, as trustee and REMIC
administrator.
8.1 Opinion of Sidley & Austin with respect to certain tax
matters.
23.1 Consent of Sidley & Austin.*
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* Included in Exhibit 8.1.
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DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-CF2
UNDERWRITING AGREEMENT
As of November 20, 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-CF2, 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 December 1, 1998 (the "Cut-off Date"), among the Company, as depositor,
Banc One Mortgage Capital Markets, LLC, as master servicer (in such capacity
the "Master Servicer"), and 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"). 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-3, Class B-4, Class B-5, Class B-6, Class C, Class
D, 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.
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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. 333-59167) on Form
S-3 for the registration under 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
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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 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.
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(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 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.
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(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.
(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.
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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 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
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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.
(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
by an Underwriter or dealer of a prospectus relating to the Offered
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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 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 as of 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,
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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 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.
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<PAGE>
(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 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
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<PAGE>
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.
(x) No consent, approval, authorization or order of
any federal or State of New York 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.
(xi) 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.
(xii) The statements set forth in the Prospectus
Supplement under the headings "Description of the Offered
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.
(xiii) The statements set forth in the Prospectus
Supplement under the headings "Certain ERISA Considerations",
"Federal Income Tax Consequences" and "Legal Investment", and in the
Basic Prospectus under the headings "ERISA Considerations", "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.
(xiv) 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
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<PAGE>
Provisions in effect on the Closing Date), (B) REMIC II will qualify
as a REMIC within the 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-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 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.
(xv) 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.
(xvi) The portion of the Trust Fund consisting of
the Grantor Trust (as defined in the Prospectus Supplement) will be
classified as a grantor trust under subpart E, part I of subchapter J
of the Internal Revenue Code of 1986.
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 Master Servicer
and 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
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<PAGE>
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 other than 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 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.
(f) [Intentionally omitted.]
(g) The Underwriters shall have received, with respect to
each of the Master 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 the State of New York and of each
other 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.
(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
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<PAGE>
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 comply with any provision
hereof, 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
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<PAGE>
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 furnished by the Company to an Underwriter in writing or by electronic
transmission that was used in the preparation of any Computational Materials
or ABS Term Sheets (or amendments or supplements thereof) furnished to
prospective investors, (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 or any person controlling any Underwriter) from
whom the person asserting any loss, claim, damage or liability received any
Computational Materials or ABS Term Sheets 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 ABS Term Sheets (or, if the superseding or
correcting information was contained in the Prospectus, failed to deliver to
such person the Prospectus as amended or supplemented). 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 (i) 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 (ii) 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, any Preliminary Prospectus Supplement
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 inthe first two sentences of the
last paragraph of the cover page and in the last paragraph under the heading
"Method of Distribution" in the Prospectus Supplement and any Preliminary
Prospectus Supplement constitute
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<PAGE>
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
paragraph (a) or (b) of 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 paragraph (a) or (b) of 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
paragraph (a) or (b), as applicable, of 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 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
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<PAGE>
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 alleged untrue
statement of a material fact or any omission or alleged omission to
state 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 alleged untrue statement of a
material fact or any omission or alleged omission to state a material
fact in any Computational Materials or ABS Terms Sheets (or any
amendments or supplements thereof), 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) 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
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<PAGE>
relieve the party or parties from whom contribution may be sought from any
liability it or they may have 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.
(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
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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
(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).
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<PAGE>
(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, 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
-20-
<PAGE>
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
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
-21-
<PAGE>
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, in the
case of any Underwriter, at such other address as may be furnished by such
Underwriter to the Company in accordance with this Section 13); 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,
-22-
<PAGE>
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 (or at such other address as may be furnished by the Company to each
Underwriter in accordance with this Section 13).
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.
-23-
<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:
-----------------------------------
Name:
Title:
Accepted at New York, New York as of the date first written above.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
-----------------------------
Name:
Title:
<PAGE>
SCHEDULE I
Principal or Notional
Amount of Relevant
Underwriter Class of Offered
(and address) Class Certificates to be Purchased
- ------------- ----- ----------------------------
Donaldson, Lufkin & Jenrette
Securities Corporation(1) Class S $1,107,680,439(2)
277 Park Avenue Class A-1A $218,044,000
New York, New York 10172 Class A-1B $579,485,000
Attention: N. Dante LaRocca Class A-2 $ 55,384,000
Class A-3 $ 60,923,000
Class A-4 $ 13,846,000
Class B-1 $ 41,538,000
Class B-2 $ 16,615,000
- -----------------
(1) Only Underwriter
(2) Notional Amount
<PAGE>
SCHEDULE II
Registration Statement No. 333-59167
Basic Prospectus dated November 20, 1998
Prospectus Supplement dated November 2, 1998
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series
1998-CF2, Class S,
Class A-1A, Class
A-1B, Class A-2,
Class A-3, Class A-4,
Class B-1 and Class
B-2
Cut-off Date: December 1, 1998
Closing: 10:00 a.m. on December 3, 1998
at the offices of
Sidley & Austin
875 Third Avenue
New York, New York 10022
<PAGE>
<TABLE>
<CAPTION>
Initial
Aggregate Certificate
Principal Balance
or Notional Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating (3)
----------------- --------------- ----------------- ----------------- ----------
<S> <C> <C> <C> <C>
Class S $1,107,680,439 0.8514% N/A Aaa/AAA
Class A-1A $218,044,000 5.8800% 100.500000 Aaa/AAA
Class A-1B $579,485,000 6.2400% 100.515625 Aaa/AAA
Class A-2 $ 55,384,000 6.4800% 101.500000 Aa2/AA
Class A-3 $ 60,923,000 6.6700% 101.515625 A2/A
Class A-4 $ 13,846,000 6.9000% 101.531250 A3/A-
Class B-1 $ 41,538,000 7.0663% 99.833333 Baa2/BBB
Class B-2 $ 16,615,000 7.0663% 93.027778 Baa3/BBB-
</TABLE>
- ------------------
(1) Plus or minus a permitted variance of 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 Moody's Investors Service, Inc. and Fitch IBCA, Inc.,
respectively
(4) Aggregate Notional Amount.
<PAGE>
==============================================================================
DLJ COMMERCIAL MORTGAGE CORP.,
as Depositor,
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
as Master Servicer,
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
as Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee and REMIC Administrator,
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 1998
------------------------------
$1,107,680,439
Commercial Mortgage Pass-Through Certificates
Series 1998-CF2
==============================================================================
<PAGE>
TABLE OF CONTENTS
---------------
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
<S> <C> <C>
1.01. Defined Terms....................................................................................................2
1.02. General Interpretive Principles.................................................................................41
1.03. Certain Calculations in Respect of the Mortgage Pool............................................................42
1.04. Cross-Collateralized Mortgage Loans.............................................................................43
<CAPTION>
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
<S> <C> <C>
2.01. Conveyance of Mortgage Loans....................................................................................45
2.02. Acceptance of Mortgage Assets by Trustee........................................................................47
2.03. Certain Repurchases and Substitutions of Mortgage Loans by the Originators......................................49
2.04. Representations and Warranties of the Depositor.................................................................52
2.05. Representations and Warranties of the Master Servicer...........................................................54
2.06. Representations and Warranties of the Special Servicer..........................................................55
2.07. Representations and Warranties of the Trustee...................................................................57
2.08. Representations and Warranties of the REMIC Administrator.......................................................59
2.09. Designation of the Certificates.................................................................................60
2.10. Creation of REMIC I; Issuance of REMIC I Regular Interests and Class R-I Certificates...........................61
2.11. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC I Regular Interests by Trustee.........................................................................63
2.12. Creation of REMIC II; Issuance of REMIC II Regular Interests
and Class R-II Certificates..................................................................................63
2.13. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC II Regular Interests by Trustee........................................................................65
2.14. Creation of REMIC III; Issuance of REMIC III Certificates.......................................................65
2.15. Acceptance of Grantor Trusts by Trustee; Issuance of Class D Certificates.......................................68
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
<S> <C> <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, Distribution Account and Interest Reserve Account...........................................72
3.05. Permitted Withdrawals From the Collection Account, 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.......................................................................84
3.10. Trustee to Cooperate; Release of Mortgage Files.................................................................87
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...................................................................................88
3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports...........................92
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......................................................................................97
3.18. Sale of Mortgage Loans and REO Properties.......................................................................99
3.19. Additional Obligations of Master Servicer......................................................................102
3.20. Modifications, Waivers, Amendments and Consents................................................................104
3.21. Transfer of Servicing Between Master 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..............................................112
<CAPTION>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
<S> <C> <C>
4.01. Distributions..................................................................................................115
4.02. Statements to Certificateholders; Certain Other Reports........................................................124
4.03. P&I Advances; Advances relating to the Master Servicer Remittance Amount.......................................126
4.04. Allocation of Realized Losses and Additional Trust Fund Expenses...............................................128
4.05. Calculations...................................................................................................129
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Section Page
ARTICLE V
THE CERTIFICATES
<S> <C> <C>
5.01. The Certificates...............................................................................................130
5.02. Registration of Transfer and Exchange of Certificates..........................................................130
5.03. Book-Entry Certificates........................................................................................135
5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................................................136
5.05. Persons Deemed Owners..........................................................................................137
5.06. Certification by Certificate Owners............................................................................137
<CAPTION>
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
<S> <C> <C>
6.01. Liability of the Depositor, the Master Servicer, the Special Servicer
and the REMIC Administrator.................................................................................138
6.02. Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the REMIC Administrator........................................138
6.03. Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer and the REMIC Administrator............................................................138
6.04. Master Servicer, Special Servicer and REMIC Administrator Not to Resign........................................139
6.05. Rights of the Depositor and the Trustee in Respect of
the Master Servicer, the Special Servicer and the REMIC Administrator.......................................140
6.06. Designation of Special Servicer by the Controlling Class.......................................................141
6.07. Master Servicer or Special Servicer as Owner of a Certificate..................................................142
<CAPTION>
ARTICLE VII
DEFAULT
<S> <C> <C>
7.01. Events of Default..............................................................................................143
7.02. Trustee to Act; Appointment of Successor.......................................................................146
7.03. Notification to Certificateholders.............................................................................147
7.04. Waiver of Events of Default....................................................................................147
7.05. Additional Remedies of Trustee Upon Event of Default...........................................................148
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Section Page
ARTICLE VIII
THE TRUSTEE
<S> <C> <C>
8.01. Duties of Trustee..............................................................................................149
8.02. Certain Matters Affecting the Trustee..........................................................................150
8.03. Trustee and Fiscal Agent not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................................................................152
8.04. Trustee and Fiscal Agent May Own Certificates..................................................................152
8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee,
REMIC Administrator and Fiscal Agent........................................................................152
8.06. Eligibility Requirements for Trustee...........................................................................154
8.07. Resignation and Removal of Trustee.............................................................................154
8.08. Successor Trustee..............................................................................................155
8.09. Merger or Consolidation of Trustee.............................................................................156
8.10. Appointment of Co-Trustee or Separate Trustee..................................................................156
8.11. Appointment of Custodians......................................................................................157
8.12. Access to Certain Information..................................................................................157
8.13. Appointment of Fiscal Agent....................................................................................159
8.14 Advance Security Arrangement...................................................................................160
8.15. Filings with the Securities and Exchange Commission............................................................161
<CAPTION>
ARTICLE IX
TERMINATION
<S> <C> <C>
9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans...............................................162
9.02. Additional Termination Requirements............................................................................163
<CAPTION>
ARTICLE X
ADDITIONAL TAX PROVISIONS
<S> <C> <C>
10.01. Tax Administration.............................................................................................165
10.02. Depositor, Master Servicer, Special Servicer, Trustee and
Fiscal Agent to Cooperate with REMIC Administrator..........................................................168
10.03. Fees of the REMIC Administrator................................................................................168
10.04. Use of Agents..................................................................................................168
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE XI
MISCELLANEOUS PROVISIONS
<S> <C> <C>
11.01. Amendment......................................................................................................169
11.02. Recordation of Agreement; Counterparts.........................................................................170
11.03. Limitation on Rights of Certificateholders.....................................................................170
11.04. Governing Law..................................................................................................171
11.05. Notices........................................................................................................171
11.06. Severability of Provisions.....................................................................................172
11.07. Successors and Assigns; Beneficiaries..........................................................................172
11.08. Article and Section Headings...................................................................................172
11.09. Notices to and from the Rating Agencies........................................................................172
11.10. Notices to Controlling Class Representative....................................................................174
11.11. Complete Agreement.............................................................................................174
</TABLE>
-v-
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
<S> <C>
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-2, Class A-3, Class A-4, Class B-1 and Class B-2 Certificates
EXHIBIT A-4 Form of Class B-3, Class B-4, Class B-5, Class B-6 and Class C Certificates
EXHIBIT A-5 Form of Class D Certificates
EXHIBIT A-6 Form of Class R-I, Class R-II and Class R-III Certificates
EXHIBIT B-1 Schedule of 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 Master 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 Periodic Update File
EXHIBIT E-2B Form of CSSA Property File
EXHIBIT E-2C Form of CSSA Loan Set-up File
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 Report
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
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M Form of Mortgage Loan Purchase and Sale Agreement
EXHIBIT N-1 Form of Third Party Originator Agreement for Union Capital
EXHIBIT N-2 Form of Third Party Originator Agreement for Apple Bank
</TABLE>
-vi-
<PAGE>
This Pooling and Servicing Agreement, is dated and effective
as of December 1, 1998, among DLJ COMMERCIAL MORTGAGE CORP. as Depositor, BANC
ONE MORTGAGE CAPITAL MARKETS, LLC as Master Servicer and 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 November 20, 1998
(as such may be amended, the "Mortgage Loan Purchase and Sale Agreement"),
between Column and the Depositor, the Original Mortgage Loans (as defined
herein). A form of the Mortgage Loan Purchase and Sale Agreement is attached
hereto as Exhibit M.
The parties hereto desire to provide for, among other
things, (i) the creation of a common law trust, (ii) the transfer of the
Original Mortgage Loans, 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 (as defined herein), including the Original Mortgage Loans, and the
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:
<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, 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 Borrower 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 Master 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 Grantor Trust D as a Grantor Trust or (ii) the imposition of a
tax upon Grantor Trust D 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.
"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.
"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.
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"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 Master
Servicer, the Trustee or any Fiscal Agent, all unpaid interest (net of related
Servicing Fees, Default Interest and, in the case of an ARD Loan after its
Anticipated Repayment Date, Additional Interest) accrued on such Required
Appraisal Loan through the most recent Due Date prior to such Determination
Date, (iii) all unpaid Servicing Fees accrued in respect of such Required
Appraisal Loan, (iv) all related unreimbursed Advances made by or on behalf of
the Master 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 Master 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 60 days following, and has not been obtained within the
twelve-month period preceding, the earliest of the relevant dates in respect
of such Required Appraisal Loan specified in clauses (i) - (v) 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.
"Apple Bank": Apple Bank for Savings or its successor in
interest.
"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 Borrower in connection with the
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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 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 clause (a)(i) of this definition, 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 clause (a)(i) of this definition, if such Distribution Date
occurs during the month of March of any year, the aggregate of the Interest
Reserve Amounts with respect to the Interest Reserve Loans transferred from
the Interest Reserve Account to the Distribution Account during such month of
March 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 Charges 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 during the month of February of
any year or during the month of January of any year that is not a leap year,
the aggregate of the Interest Reserve Amounts with respect to the Interest
Reserve Loans to be withdrawn from the Distribution Account and deposited into
the Interest Reserve Account during such month of February or such month of
January, as the case may be, and held for future distribution, 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.
"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.
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"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 November
20, 1998, relating to trust funds established by the Depositor and publicly
offered mortgage pass-through certificates evidencing interests therein.
"Basic Special Servicing Fee": With respect to any Specially
Serviced Mortgage Loan or REO Mortgage Loan, the related Special Servicing
Fee, exclusive of any incremental increase therein as a result of the initial
Special Servicer no longer being the Special Servicer.
"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.
"Borrower": 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.
"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
Master 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-CF2, 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.
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"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 Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee or any Fiscal Agent in its respective 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 Master 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
Principal Balance 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 Principal Balance 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" and "Certificate Registrar": The
register maintained and the registrar appointed 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).
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"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 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, but not an asset of
any REMIC Pool.
"Class Notional Amount": The aggregate hypothetical or
notional amount on which the Class S Certificates are deemed to accrue
interest from time to time, as calculated in accordance with Section 2.14(d).
"Class Principal Balance": The aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates,
as calculated in accordance with Section 2.14(e).
"Class S REMIC III Regular Interest": Any of the separate
beneficial ownership interests in REMIC III represented by the Class S
Certificates and, in each such case, designated as a "regular interest" in
REMIC III. The Class S REMIC III Regular Interests have the designations and
terms provided for in Section 2.14.
"Class S Strip Rate": The per annum rate at which interest
accrues in respect of any Class S REMIC III Regular Interest during any
Interest Accrual Period, as set forth or otherwise calculated in accordance
with Section 2.14(d).
"Closing Date": December 3, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) in
trust for the Certificateholders, which shall be entitled"Banc One Mortgage
Capital Markets, LLC [or the name of any successor Master Servicer], as Master
Servicer, in trust for the registered holders of DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through Certificates, Series 1998-CF2".
"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 Mortgage Loan that is originated
by Column, as identified in the Mortgage Loan Schedule;
"Commission": The Securities and Exchange Commission or any
successor thereto.
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"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 Master 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 Master 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 Column,
by the related Third Party Originator (in the case of a Third Party Mortgage
Loan), by the related Borrower or (x) in the case of such a report produced by
the Master Servicer, by the Special Servicer (if other than the Master
Servicer or an Affiliate thereof) and (y) in the case of such a report
produced by the Special Servicer, by the Master 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 Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period.
"Component Notional Amount": The hypothetical or notional
amount on which any Class S REMIC III Regular Interest accrues interest from
time to time, as calculated in accordance with Section 2.14(d).
"Controlling Class": As of any date of determination, the
Class of Principal Balance 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 Principal Balance Certificates has a Class Principal Balance that
satisfies the foregoing requirement, then the Controlling Class shall be the
Class of Principal Balance 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).
"Corresponding REMIC II Regular Interest": With respect to
any Class of Principal Balance 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 Principal
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Balance Certificates; and, with respect to any Class S REMIC III Regular
Interest, the REMIC 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 Periodic Update File": The report substantially
in the form and containing the information described in Exhibit E-2A attached
hereto.
"CSSA Loan Set-up File"described in Exhibit E-2C attached
hereto.
"CSSA Property File": 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": December 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.
"Default Interest": With respect to any Mortgage Loan (or
successor REO Mortgage Loan), any amounts collected thereon, other than late
payment charges, Prepayment Premiums or Yield Maintenance Charges, that
represent interest (exclusive, if applicable, of Additional Interest) in
excess of interest accrued
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on the principal balance of such Mortgage Loan (or REO Mortgage Loan) at the
related Mortgage Rate, such excess interest arising out of a default under
such 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 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
Borrower, accelerated the maturity of the indebtedness evidenced by the
related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"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.
"Determination Date": With respect to any calendar month,
commencing in January 1999, the seventh day of such month (or, if such seventh
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 Servicer) shall not be
considered to Directly Operate an REO Property solely because the Special
Servicer
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(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 Principal Balance Certificates, for any Distribution Date, an amount
of interest equal to all Accrued Certificate Interest in respect of such Class
of 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 Certificates for the related Interest Accrual Period,
and the denominator of which is the aggregate Accrued Certificate Interest in
respect of all the Classes of Regular Interest Certificates for the related
Interest Accrual Period; and, with respect to the Class S Certificates for any
Distribution Date, the aggregate amount of Distributable Component Interest in
respect of all the Class S REMIC III Regular Interests for such Distribution
Date.
"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 Classes of 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-CF2."
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"Distribution Date": With respect to any calendar month,
commencing in January 1999, the later of (i) the 12th day of such month (or,
if such 12th 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 "Aa2" by Moody's
and, if then rated thereby, "AA" 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 "P-1" by Moody's and, if then rated thereby,
"F-1+" 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).
"ERISA": The Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment": Any payment received by the Master
Servicer or the Special Servicer for the account of any Borrower 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 Mortgage Loan that is paid in full
and other than a Mortgage Loan or REO Property, as the case may be, that
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is repurchased or replaced by a Third Party Originator pursuant to the related
Third Party Originator Agreement, repurchased or replaced by Column pursuant
to a Mortgage Loan Purchase and Sale Agreement or purchased by the Master
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.
"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": The Grantor Trust designated as such in
Section 2.15.
"Ground Lease": The ground lease pursuant to which any
Borrower holds a leasehold interest in the related Mortgaged Property.
"Ground Sub-Lease": The ground sub-lease pursuant to which
any Borrower holds a sub- leasehold interest in the related Mortgaged
Property.
"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.
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"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,
Column, the Master 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, Column, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee, any Fiscal Agent or any
Affiliate thereof, and (iii) is not connected with the Depositor, Column, the
Master 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, Column, the Master 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, Column, the Master 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 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.
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"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
Borrower, 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 Trustee pursuant to Section 3.04(c) 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-CF2".
"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 Stated Principal
Balance of such Interest Reserve Loan 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 received in respect
thereof for such Due Date on or before the related Master 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, Column, either Third
Party Originator, any Certificateholder, or any Affiliate of any such Person.
"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.
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"Issue Price": With respect to each Class of Certificates,
the "issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"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 Principal Balance 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 Borrower
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 Third Party Originator pursuant
to the related Third Party Originator Agreement or by Column pursuant to the
Mortgage Loan Purchase and Sale Agreement, in each case as contemplated by
Section 2.03; or (iv) such Mortgage Loan is purchased by the Master 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 Master 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 (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 Master Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder pursuant to Section 3.18
or Section 9.01 or that is repurchased or replaced by a Third Party Originator
pursuant to the related Third Party
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Originator Agreement or by Column pursuant to the 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, 1.0%.
"Liquidation Proceeds": All cash amounts (other than
Insurance Proceeds and REO Revenues) received by the Master 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 Borrower 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
Borrower; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Controlling Class Certificateholder pursuant to Section 3.18(b) or by the
Master 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 Third Party Originator pursuant to the related Third Party
Originator Agreement or by Column pursuant to the Mortgage Loan Purchase and
Sale Agreement; (vi) the substitution of one or more Replacement Mortgage
Loans for a Deleted Mortgage Loan by a Third Party Originator pursuant to the
related Third Party Originator Agreement or by Column pursuant to the 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 Master 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 Controlling Class Certificateholder": As of any
date of determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class or Classes
of Principal Balance Certificates that constitutes the Controlling Class as of
such date of determination.
"Master Servicer": Banc One Mortgage Capital Markets, LLC,
or its successor in interest, in its capacity as servicer hereunder, or any
successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any
Master Servicer Remittance Date, an amount equal to (a) all amounts on deposit
in the Collection Account as of the commencement of business on such Master
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 Additional Interest),
Liquidation Proceeds and Insurance Proceeds received after the end of the
related Collection Period, (iii) any Prepayment Premiums and/or Yield
Maintenance Charges 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 Master
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Servicer Remittance Amount for the Master 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.
"Master Servicer Remittance Date": The Business Day
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Performing
Mortgage Loan, the fee designated as such and payable to the Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Performing
Mortgage Loan, 0.04675% per annum.
"Maturity Assumptions": Collectively, the assumptions
identified as the "Modeling Assumptions" in the Prospectus Supplement.
"Memorandum": The final Private Placement Memorandum dated
November 20, 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 Borrower 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 Borrower 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 Borrower 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.
"Moody's": Moody's Investors Service, Inc. or its successor
in interest. If neither such rating agency nor any successor remains in
existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which
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designation shall be given to the other parties hereto, and specific ratings
of Moody's Investors Service, 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 Moody's, be deemed to refer
to such applicable rating category of Moody's, without regard to any plus or
minus or other comparable rating qualification.
"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-CF2, 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) 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;
(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-CF2, 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-CF2, 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;
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(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 Column had
possession of such UCC Financing Statements prior
to the Closing Date) and, if there is an effective
UCC Financing Statement in favor of Column or, if
applicable, a 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-CF2;
(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 Borrower 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.
"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 Agreement": As defined in
the Preliminary Statement.
"Mortgage Loan Schedule": The list of Mortgage Loans
attached hereto as Exhibit B-1 as such list may be amended from time to time
in accordance with this Agreement. Such list 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;
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(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) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, the other Mortgage Loans
contained in the related Cross-Collateralized
Group;
(ix) whether the Mortgage Loan is an ARD Loan and, if
so, the Anticipated Repayment Date;
(x) whether such Mortgage Loan provides for defeasance
and, if so, the period during which defeasance may
occur;
(xi) whether the Mortgage Loan is secured by a fee
simple interest in the Mortgaged Property; by the
Borrower's leasehold interest, and a fee simple
interest, in the Mortgaged Property; or solely by a
leasehold interest in the Mortgaged Property;
(xii) whether such Mortgage Loan was originated by
Column, Apple Bank or Union Capital; and
(xiii) the Interest Accrual Basis.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"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
Borrower. 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
Borrower, 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.
"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 Master Servicer for
deposit into the Distribution Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest Shortfalls.
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"Net Default Charges": With respect to any Mortgage Loan,
any Default Charges actually collected from the related Borrower 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.
"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.
"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 Master 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 Master 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 Master 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.
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"Non-Registered Certificate": Any Certificate that has not
been registered under the Securities Act. As of the Closing Date, the Class
B-3, Class B-4, Class B-5, Class B-6, Class C, Class D, 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 Master Servicer or the Special Servicer or a Responsible
Officer of the Trustee or any Fiscal Agent, as the case may be.
"Operating Statement Analysis Report": 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 Grantor Trust D as a Grantor Trust for
taxation purposes, shall be Independent of the Depositor, Column, the Master
Servicer, the 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 Master 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": The per annum rate at which interest
accrues (or is deemed to accrue) in respect of any Class of Regular Interest
Certificates during any Interest Accrual Period, as set forth in or otherwise
calculated in accordance with Section 2.14(d), in the case of the Class S
Certificates, or Section 2.14(e), in the case of a Class of Principal Balance
Certificates.
"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.
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"Performing Mortgage Loan": Any Corrected Mortgage Loan and
any Mortgage Loan as to which a Servicing Transfer Event has not occurred.
"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 Moody's and, if rated
thereby, 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 Moody's and, if rated
thereby, 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);
(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 Moody's and, if
rated thereby, 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
Moody's and, if rated thereby, 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);
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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.
"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
Master Servicing Fees and/or Basic Special Servicing Fees and net of any
portion of such interest that represents Default Interest or Additional
Interest) actually collected from the related Borrower 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 Charge that may have been collected).
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"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 Borrower (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected),
that would have accrued on the amount of such Principal Prepayment during the
period from the date of prepayment to, but not including, such Due Date (less
the amount of related Master Servicing Fees and/or Basic Special Servicing
Fees and, if applicable, exclusive of Default Interest and Additional
Interest).
"Prepayment Premium": With respect to any Mortgage Loan, any
premium, penalty or fee paid or payable, as the context requires, by a
Borrower 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 Master
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 Master
Servicer and the Special Servicer in writing of its selection.
"Principal Balance Certificate": Any of the Certificates
designated as such in Section 2.09.
"Principal Balance Reduction: Any reduction made in the
Class Principal Balance of any Class of Principal Balance Certificates
pursuant to Section 4.04(a), the Uncertificated Principal Balance of any REMIC
II Regular Interest pursuant to Section 4.04(b) or the Uncertificated
Principal Balance of any REMIC I Regular Interest pursuant to Section 4.04(c).
"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;
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(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 Master 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 Master 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 Borrower 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 Charge 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.
"Proposed Plan": As defined in Section 3.17(a).
"Prospectus": The Base Prospectus and the Prospectus
Supplement, together.
"Prospectus Supplement": That certain prospectus supplement
dated November 20, 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, and (d) solely in the case of a purchase by a Third Party
Originator pursuant to the related Third Party Originator Agreement or by
Column pursuant to the Mortgage Loan Purchase and Sale Agreement, (i) all
accrued and unpaid Advance Interest in respect of related Advances and (ii) to
the extent not otherwise included in the amount described in the preceding
clause (c), any costs and expenses incurred by the Master Servicer (on behalf
of the Trust) in enforcing the obligation of such Person to purchase such
Mortgage Loan.
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"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, as of the date of substitution, with all of
the representations and warranties relating to Mortgage Loans set forth in or
made pursuant to the Mortgage Loan Purchase and Sale Agreement and, in the
case of a Third Party Mortgage Loan, the related Third Party Originator
Agreement, or will comply (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, with all of the
representations relating to the Deleted Mortgage Loan set forth in or made
pursuant to the Mortgage Loan Purchase and Sale Agreement and, in the case of
a Third Party Mortgage Loan, the relevant 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 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 party (i.e., Column or the related 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.
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"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
November 2031.
"Rating Agency": Each of Moody's 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 unpaid interest accrued in respect of such Mortgage Loan or
REO Mortgage Loan, as the case may be, to but not including the related Due
Date in the Collection Period in which the Final Recovery Determination was
made (exclusive, however, of any portion of such unpaid interest that
constitutes Default Interest or, in the case of an ARD Loan after its
Anticipated Repayment Date, 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 canceled in connection with a bankruptcy
or similar proceeding involving the related Borrower or a modification, waiver
or amendment of such Mortgage Loan granted or agreed to by the Master 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
canceled; 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
Borrower or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master 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).
"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-2, Class A-3, Class A-4, Class B-1 and Class
B-2 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.
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"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 D.
"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": The per annum rate at which
interest accrues in respect of any REMIC I Regular Interest during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with 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": The per annum rate at which
interest accrues in respect of any REMIC II Regular Interest during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with 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 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.
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"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 "Banc One Mortgage Capital Markets, LLC [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-CF2".
"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 Master 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 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 Master 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.
"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
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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 Column or a 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 Master 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 Borrower 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 Report, the NOI Adjustment Worksheet and the
Comparative Financial Status Report.
"Securities Act": The Securities Act of 1933, as amended.
"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.
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"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 Master 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 any REO
Property, including (1) any such costs and expenses associated with (a)
compliance with the obligations of the Master 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 Master Servicer or the Special Servicer to the extent such
cost is allocable to a particular Mortgaged Property that the Master 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 Borrower, (2) the cost of any Opinion of Counsel expressly
required to be obtained hereunder to the extent that a Borrower is required
under the terms of the related Mortgage Loan to pay the costs thereof and
fails to do so, and (3) 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
Master Servicer or the Special Servicer, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, or costs incurred by either
such party in connection with its purchase of any Mortgage Loan or REO
Property pursuant to any provision of this Agreement.
"Servicing Fee": With respect to any Mortgage Loan, the
Master Servicing Fee or the Special Servicing Fee, as applicable.
"Servicing File": Any documents (other than documents
required to be part of the related Mortgage File, but including any
correspondence file) in the possession of the Master 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 Master
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 Master 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 Master Servicer pursuant to Section 3.21(a).
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"Servicing Standard": With respect to the Master 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 Master 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 real properties, and (ii) the same care, skill, prudence and
diligence with which the Master Servicer or the Special Servicer, as the case
may be, generally services and administers comparable mortgage loans and real
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 Charges 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 Charges), 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
Mortgage Rate); and (c) without regard to: (i) any relationship that the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, may have with the related Borrower or
with any other party to this Agreement; (ii) the ownership of any Certificate
by the Master Servicer (or any Affiliate thereof) or the Special Servicer (or
any Affiliate thereof), as the case may be; (iii) any obligation of the Master
Servicer or the Special Servicer, as the case may be, to make Advances; (iv)
the right of the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, to receive
compensation for its services or reimbursement of costs hereunder generally or
with respect to any particular transaction, and (v) any ownership by the
Master 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.
"Servicing Transfer Event": With respect to any Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (h)
of the definition of "Specially Serviced Mortgage Loan".
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to
which any of the following events has occurred:
(a) the related Borrower has failed to make when due
any Balloon Payment, which failure continues, or
the Master Servicer determines, in its reasonable,
good faith judgment, will continue, unremedied for
30 days; or
(b) the related Borrower 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 Master Servicer
determines, in its reasonable, good faith judgment,
will continue, unremedied for 60 days; or
(c) the Master 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 Borrower 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
(d) the Master 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
(e) a decree or order of a court or agency or
supervisory authority having jurisdiction in the
premises in an involuntary action against the
related Borrower 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 Borrower and such decree or
order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(f) the related Borrower shall have consented to the
appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar
proceedings of or relating to such Borrower or of
or relating to all or substantially all of its
property; or
(g) the related Borrower shall have admitted in writing
its inability to pay its debts generally as they
become due, filed a petition to take advantage of
any applicable insolvency or reorganization
statute, made an assignment for the benefit of its
creditors, or voluntarily suspended payment of its
obligations; or
(h) the Master Servicer shall have received notice of
the commencement of foreclosure or similar
proceedings with respect to the related Mortgaged
Property;
provided, 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
(h) 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) and (b) above, when the related
Borrower 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 Borrower or by reason of a
modification, waiver or amendment granted or agreed
to by the Master Servicer or the Special Servicer
pursuant to Section 3.20);
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(x) with respect to the circumstances described in
clauses (c), (e), (f) and (g) 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 (d) above, when such default is cured; and
(z) with respect to the circumstances described in
clause (h) above, when such proceedings are
terminated.
"Special Servicer": Banc One Mortgage Capital Markets, LLC,
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": 0.04675% per annum or, if the
initial Special Servicer is no longer the Special Servicer, 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) or Section 2.14(a) (in the case of REMIC
III), as applicable.
"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 Borrower 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; provided that, 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 Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master 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.
"Third Party Mortgage Loan": Any Mortgage Loan that is
originated by Union Capital or Apple Bank, as identified in the Mortgage Loan
Schedule.
"Third Party Originator": Either of Union Capital and Apple
Bank.
"Third Party Originator Agreement": With respect to each
Mortgage Loan originated by Union Capital, the Seller's Warranty Certificate
dated as of November 18, 1998, executed and delivered by Union Capital in
favor of DLJ Mortgage Capital, Inc., the form of which is attached hereto as
Exhibit N-1; and, with respect to each Mortgage Loan originated by Apple Bank,
the Seller's Warranty Certificate dated as of December 3, 1998, executed and
delivered by Apple Bank in favor of DLJ Mortgage Capital, Inc., the form of
which is attached hereto as Exhibit N-2.
"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).
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"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.
"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": With respect to any Mortgage Loan or REO
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant
to Section 8.05(a).
"Trustee's Fee Rate": 0.00325% per annum.
"Trust Fund": Collectively, all of the assets of REMIC I,
REMIC II, REMIC III and Grantor Trust 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 any REMIC I Regular Interest (calculated in
accordance with Section 2.10(g) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.12(g) hereof).
"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.
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"Uncertificated Principal Balance": The principal balance
outstanding from time to time of any REMIC I Regular Interest (calculated in
accordance with Section 2.10(e) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.12(e) hereof).
"Underwriter": Donaldson, Lufkin & Jenrette Securities
Corporation or its successor in interest.
"Union Capital": Union Capital Investments, LLC or its
successor in interest.
"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.
"Unreimbursed Principal Balance Reduction": Any Principal
Balance Reduction made with respect to a Class of Principal Balance
Certificates, a REMIC II Regular Interest or a REMIC I Regular Interest for
which no distribution or deemed distribution of reimbursement has been made
pursuant to Section 4.01(a), Section 4.01(i) or Section 4.01(j), as
applicable.
"Unrestricted Servicer Reports": Each of the Delinquent Loan
Status Report, the Historical Loan Modification Report, the Historical Loss
Estimate Report, the REO Status Report, the CSSA Loan Periodic Update File,
the CSSA Property File and the CSSA Loan Set-Up File.
"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, 99.0%
of the Voting Rights shall be allocated among all the Classes of Principal
Balance 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 Master Servicer indicates a problem that the Master Servicer
determines can reasonably be expected to materially adversely affect the cash
flow generated by such Mortgaged Property; (iii) a Mortgage Loan as to which
the Master 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 Master Servicer's attention
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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 Master 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, 1.0%.
"year 2000 ready": With respect to any Person, the
possession (by licensing or otherwise) by such Person of computer systems,
including hardware and software, that are able to correctly interpret and
process data involving dates subsequent to December 31, 1999.
"Yield Maintenance Charge": With respect to any Mortgage
Loan, any premium, penalty or fee paid or payable, as the context requires, by
a Borrower 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;
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(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 Borrowers, Insurance
Proceeds and Liquidation Proceeds, shall be applied by the Master 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 Borrowers, 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 date of
receipt (or, in the case of a full Monthly Payment from any Borrower, through
the related Due Date), exclusive, however, in the case of an ARD Loan after
its Anticipated Repayment Date, of any portion of 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 Charge 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 Charge deemed to be due and owing
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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 Master 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 Master 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.
(e) The foregoing applications of amounts received in
respect of any Mortgage Loan or REO Property shall be determined by the Master
Servicer and reflected in the appropriate monthly report from the Master
Servicer and in the appropriate monthly 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 Master 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-
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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 and, further, that such
trust be designated as "DLJ Commercial Mortgage Trust 1998- CF2". 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, the Interest Reserve 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 9, 10, 13, 14,
15, 16, 17 and 19, the second paragraph of Section 7 and the first sentence of
Section 17) of the Mortgage Loan Purchase and Sale Agreement, (v) each Third
Party Originator Agreement (insofar as such right, title and interest was
assigned thereto under the 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, the Interest
Reserve 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
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Mortgage Notes with respect to the Mortgage Loans subject hereto from time to
time 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" 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 Master 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 Master 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 the Mortgage Loan Purchase
and Sale Agreement and each Third Party Originator Agreement.
(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 Column to prepare or cause to be
prepared promptly, pursuant to the 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
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 October 9,
1998, between the Depositor and the Trustee.
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(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 Master 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, Column or a
Third Party Originator 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, Column or a Third Party Originator that were delivered by or on
behalf of the related Borrowers 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 Master Servicer all unapplied Reserve Funds and Escrow
Payments in respect of the Mortgage Loans. The Master 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 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, Column 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) the original Mortgage Note specified in clause (i)
of the definition of "Mortgage File" and all allonges thereto are in its
possession or the possession of a Custodian on its behalf, and (ii) such
Mortgage Note has been reviewed by it or by such Custodian on its behalf and
(A) appears regular on its face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Borrower), (B) appears
to have been executed and (C) purports to relate to such Mortgage Loan.
(b) On or about the 45th day following the Closing Date
(and, if any exceptions are noted, every 180 days thereafter until the
earliest of (i) the date on which such exceptions are eliminated, (ii) the
date on which the affected Mortgage Loans are removed from the Trust Fund and
(iii) the second 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, Column and the Underwriter that, as to each Original
Mortgage Loan then subject to this Agreement (except as specifically
identified in any exception report annexed to such certification): (i) the
original 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
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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 Borrower), (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) (other than the zip code), (v) and (vi)(B) of the definition of
"Mortgage Loan Schedule" accurately reflects the information set forth in the
Mortgage File. If Column or a 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 Master 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 Master
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 Column 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, 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
discovered the Document Defect) the Trustee (which shall in turn notify the
Controlling Class Representative). Upon the Master Servicer's discovery or
receipt of notice of any such Document Defect, the Master Servicer shall
notify the Underwriter, Column and, in the case of a Third Party Mortgage
Loan, the related 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 Master Servicer shall, on behalf of the Trust,
exercise such rights and remedies as the Trust may have hereunder,
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under the Mortgage Loan Purchase and Sale Agreement and/or, in the case of any
Third Party Mortgage Loan, under the related 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 Master Servicer with respect to the foregoing, together with
any additional out-of-pocket expenses reasonably incurred by the Master
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 Column and/or, in the case of any Third Party Mortgage
Loan, the related Third Party Originator as contemplated by this Article 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) Column or
the related 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) Column or the related
Third Party Originator, as applicable, is obligated under the Mortgage Loan
Purchase and Sale Agreement or the related Third Party Originator Agreement,
as applicable, 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,
Column or the related 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
or, other than pursuant to this Section 2.03(a), receives notice of a breach
of any representation or warranty relating to any Mortgage Loan set forth in
or made pursuant to the Mortgage Loan Purchase and Sale Agreement or a Third
Party Originator Agreement (a "Breach"), the party or Certificateholder
discovering or receiving such notice of such Breach shall (without making any
determination of the materiality or adverseness thereof) give prompt written
notice thereof to the other parties hereto, including (unless it is the party
that discovered the Breach) the Trustee, and the Trustee shall in turn
(without making any determination of the materiality or adverseness thereof)
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
Master Servicer shall require that the Person (whether it is Column or, in the
case of a Third Party Mortgage Loan, the related 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 Mortgage Loan Purchase and Sale Agreement
or, in the case of a Third Party Mortgage Loan, the related 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 Mortgage Loan
Purchase and Sale Agreement or the related Third Party Originator Agreement,
as applicable) at the applicable Purchase Price (or, in the case of the
repurchase of a Third Party Mortgage Loan by the related Third Party
Originator, at such other price as is provided for in the related Third Party
Originator Agreement, with any shortfall between such price and the applicable
Purchase Price to be made up by Column pursuant to the 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
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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, specifying 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 Master 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 Third Party Mortgage Loan by the related Third Party Originator, to pay
such other cash amount as is provided for in the related Third Party
Originator Agreement, with any shortfall between such other cash amount and
the applicable Substitution Shortfall Amount to be made up by Column pursuant
to the Mortgage Loan Purchase and Sale Agreement), subject to any other
applicable terms and conditions of the Mortgage Loan Purchase and Sale
Agreement or the related 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 Warranting
Party (whether it is Column or, in the case of a Third Party Mortgage Loan,
the related 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 Master 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 Master 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 Third Party
Mortgage Loan a Breach on the part of Column under the Mortgage Loan Purchase
and Sale Agreement (other than a Breach of any of the representations and
warranties of Column relating to or affecting the status of the affected
Mortgage Loan as a "qualified mortgage" within the meaning of the REMIC
Provisions) and a Breach on the part of a Third Party Originator under the
related Third Party Originator Agreement, and such Breaches give rise to a
cure or repurchase/substitution obligation under both the Mortgage Loan
Purchase and Sale Agreement and the related Third Party Originator Agreement,
then the Master Servicer shall request Column to effect a cure of Column's
Breach or to repurchase or replace the affected Mortgage Loan only if the
related Third Party Originator does not do so within such Third Party
Originator's applicable cure/repurchase/substitution period, 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 for Column shall in no event extend more
than 30 days (or, in the case of the Mortgage Loan originated by Apple Bank,
90 days) from the end of the cure/repurchase/substitution period for the
related 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.
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If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased or replaced by
Column or a Third Party Originator as contemplated by this Section 2.03, then,
prior to the subject repurchase or substitution, the Master Servicer shall use
its best efforts, subject to the terms of the related Mortgage Loans, to
prepare and, to the extent necessary and appropriate, have executed by the
related Borrower 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 Master Servicer and the Trustee have received from the Depositor, Column
or, in the case of a Third Party Mortgage Loan, the related 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 Master Servicer with a
limited power of attorney that enables the Master Servicer to execute) the
documentation referred to in the prior sentence; provided that the Trustee
shall not be liable for any misuse of any such power of attorney by the Master
Servicer. The Master Servicer shall advance all costs and expenses incurred by
the Trustee and the Master Servicer pursuant to this paragraph, and such
advances shall constitute and be reimbursable as Servicing Advances. Neither
the Master 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 Master 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 Master
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 Cut-off Date and on or prior to the related date of substitution, shall be
part of the Trust Fund. Monthly Payments due with respect to 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 Master 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 Master Servicer shall direct Column to
amend the Mortgage Loan Schedule to reflect the removal of 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 Master 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.
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(b) Upon receipt of an Officer's Certificate from the Master
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 Column or a 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 Column or a
Third Party Originator, each of the Master 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
Master 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 Third Party Mortgage Loan by Column, the Trustee shall assign to Column
all right, title and interest of the Trustee in respect of such Mortgage Loan
under the related Third Party Originator Agreement. The costs and expenses
incurred by the Master 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 Agreement and the
Third Party Originator Agreements provide the sole remedies available to the
Certificateholders, or the Trustee on their behalf, respecting any Breach. If
Column and/or a Third Party Originator defaults on its obligations to
repurchase or replace any Mortgage Loan as contemplated by this Section 2.03,
the Master 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 Master Servicer shall determine are in the best interests of the
Certificateholders (taken as a collective whole). Any and all expenses
incurred by the Master 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.
(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.
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(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 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.
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(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 Master
Servicer.
(a) The Master 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 Master Servicer is a limited liability company duly
organized, validly existing and in good standing under the laws of
the State of Delaware and is in compliance with the laws of each
State in which any Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not
violate the Master 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.
(iii) The Master 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 Master Servicer,
enforceable against the Master 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 Master 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 federal, state or local governmental or regulatory authority,
which violation, in the Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master 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 Master Servicer of the transactions
contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained.
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(vii) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that, if
determined adversely to the Master Servicer, would prohibit the
Master Servicer from entering into this Agreement or that, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master
Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer.
(viii) Each officer, director (if any) or employee of the
Master 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 Master
Servicer.
(x) The Master Servicing Fee is reasonable in light of the
duties and obligations of the Master Servicer.
(xi) The Master 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.
(xii) The Master Servicer is currently modifying its
computer systems and expects that, by July 31, 1999, it will be "year
2000 ready" to a degree that its operations and ability to perform
its obligations under this Agreement will not be materially and
adversely affected by the occurrence of calendar year 2000. The
Master Servicer is also assessing whether its key vendors and
subcontractors will be "year 2000 ready".
(b) The representations and warranties of the Master
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 Master 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 limited liability company duly
organized, validly existing and in good standing under the laws of
the State of Delaware, and the Special Servicer is in compliance
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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..
(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, 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 (if any) or employee of the
Special Servicer with responsibilities concerning the servicing and
administration of any Specially Serviced Mortgage Loan or REO
Property is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c).
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(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.
(xi) The Special Servicer is currently modifying its
computer systems and expects that, by July 31, 1999, it will be "year
2000 ready" to a degree that its operations and its ability to
perform its obligations under this Agreement will not be materially
and adversely affected by the occurrence of calendar year 2000. The
Special Servicer is also assessing whether its key vendors and
subcontractors will be "year 2000 ready".
(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.
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(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 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.
(ix) The Trustee is currently modifying its computer systems
and expects that, by December 31, 1999, it will be "year 2000 ready"
to a degree that its operations and its ability to perform its
obligations under this Agreement will not be materially and adversely
affected by the occurrence of calendar year 2000. The Trustee is also
assessing whether its key vendors and subcontractors will be "year
2000 ready".
(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.
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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.
(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.
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(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.
(ix) The REMIC Administrator is currently modifying its
computer systems and expects that, by December 31, 1999, it will be
"year 2000 ready" to a degree that its operations and its ability to
perform its obligations under this Agreement will not be materially
and adversely affected by the occurrence of calendar year 2000. The
REMIC Administrator is also assessing whether its key vendors and
subcontractors will be "year 2000 ready".
(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 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 17 Classes hereby
designated as the "Class S Certificates", the "Class A-1A Certificates", the
"Class A-1B 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 C Certificates", the "Class D 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-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 and Class B-6 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-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 "Principal Balance Certificates".
(g) The Class D Certificates are also designated as the
"Grantor Trust Certificates".
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(h) The Class S Certificates are also designated as the
"Interest Only Certificates".
(i) The Interest Only Certificates and the Principal Balance
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".
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, further, 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, the Interest Reserve
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 9, 10, 13, 14, 15, 16, 17 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 each Third Party
Originator Agreement (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
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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 number for the related Original Mortgage Loan set forth in the Mortgage
Loan Schedule.
(e) Each REMIC I Regular Interest shall have an
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(j) and,
further by any Principal Balance Reduction made with respect 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 to REMIC II in reimbursement of Unreimbursed Principal
Balance Reductions in respect of a REMIC I Regular Interest, 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) Each REMIC I Regular Interest shall have a 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 calculated
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 the subject 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 five (5) basis points (0.05%); 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 the subject 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 to be calculated on an Actual/360 Basis and were to accrue
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) five (5) basis points (0.05%); 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 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
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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 after the Determination Date in 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 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) Each REMIC I Regular Interest shall bear interest. 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(j) 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, further, 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.
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(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 12
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 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-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" and "REMIC II Regular
Interest C", respectively.
(e) Each REMIC II Regular Interest shall have an
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):
Designation of Initial Uncertificated Latest Possible
REMIC II Regular Interest Principal Balance Maturity Date(1)
A-1A $ 218,044,000 June 2008
A-1B $ 579,485,000 October 2008
A-2 $ 55,384,000 November 2008
A-3 $ 60,923,000 November 2008
A-4 $ 13,846,000 November 2008
B-1 $ 41,538,000 November 2008
B-2 $ 16,615,000 November 2008
B-3 $ 52,615,000 May 2012
B-4 $ 11,077,000 July 2013
B-5 $ 22,153,000 October 2013
B-6 $ 13,846,000 August 2014
C $ 22,154,439 October 2023
- ----------------
(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 with
respect to 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
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REMIC II Regular Interest on such Distribution Date pursuant to Section
4.01(i) and, further, by any Principal Balance Reduction made with respect 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 to REMIC III in reimbursement of
Unreimbursed Principal Balance Reductions in respect of a REMIC II Regular
Interest, 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.
(f) Each REMIC II Regular Interest shall have a REMIC II
Remittance Rate that, 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) Each REMIC II Regular Interest shall bear interest. 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(i) 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, further, 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 II Regular
Interests to the Trustee pursuant to Section 2.13 and in exchange therefor,
the Trustee shall execute, authenticate and deliver to or
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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 ten (10) separate beneficial
ownership interests in REMIC III.
(c) The respective Classes of the Principal Balance
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 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-2", "REMIC III Regular Interest
S-A-3", "REMIC III Regular Interest S-A-4", "REMIC III Regular Interest S-
B-3", "REMIC III Regular Interest S-B-4", "REMIC III Regular Interest S-B-5",
"REMIC III Regular Interest S-B-6" 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. For purposes of
accruing interest, however, each Class S REMIC III Regular Interest shall have
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,
however, for reporting purposes, the Class S Certificates shall be deemed to
have 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.
Each Class S REMIC III Regular Interest shall have a Class S
Strip Rate that, with respect to any 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 Principal Balance Certificates with
the same Corresponding REMIC II Regular Interest. Notwithstanding the
foregoing, however, for reporting purposes, the Class S Certificates shall be
deemed to have a Pass- Through Rate that, with respect to any Interest Accrual
Period, is equal to the quotient, expressed as a percentage and rounded to
eight decimal places, obtained by dividing (i) 12 times the aggregate amount
of Accrued Component Interest in respect of all the Class S REMIC III Regular
Interests for such Interest Accrual Period, by (ii) the aggregate of the
Uncertificated Principal Balances of all the REMIC II Regular Interests
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 Principal Balance Certificates shall have
a Class Principal Balance and a Pass-Through Rate.
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The following table sets forth for each Class of Principal
Balance Certificates the initial Class Principal Balance thereof, the
Pass-Through Rate thereof 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 $ 218,044,000 5.8800% June 2008
Class A-1B $ 579,485,000 6.2400% October 2008
Class A-2 $ 55,384,000 6.4800% November 2008
Class A-3 $ 60,923,000 6.6500% November 2008
Class A-4 $ 13,846,000 6.9000% November 2008
Class B-1 $ 41,538,000 7.0663% November 2008
Class B-2 $ 16,615,000 7.0663% November 2008
Class B-3 $ 52,615,000 6.0400% May 2012
Class B-4 $ 11,077,000 6.0400% July 2013
Class B-5 $ 22,153,000 5.9500% October 2013
Class B-6 $ 13,846,000 5.8300% August 2014
Class C $ 22,154,439 5.3400% October 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 Principal Balance Certificates will
be the Distribution Date in the calendar month specified in
the foregoing table with respect to such Class of Principal
Balance Certificates.
The respective Pass-Through Rates applicable to the Class
A-1A, Class A-1B, Class A-2, Class B-3, Class B-4, Class B-5, Class B-6 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 Rates applicable to
the Class A-3 and Class A-4 Certificates are subject to change and, in the
case of each such Class, 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 Pass-Through Rates applicable to the Class B-1 and
Class B-2 Certificates are variable and, in the case of each such Class, 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 Principal Balance 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
Principal Balance Reductions made with respect 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 Principal
Balance Certificates shall not otherwise be increased or reduced.
Distributions to the Holders of any such Class of Principal Balance
Certificates in reimbursement of any Unreimbursed Principal Balance Reductions
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in respect of such Class of Certificates shall not constitute distributions of
principal and shall not result in any reduction of the related Class Principal
Balance.
(f) Each Class S REMIC III Regular Interest shall bear
interest. 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) Each Class of Regular Interest Certificates shall bear
interest. Accrued Certificate Interest in respect of the Regular Interest
Certificates shall commence accruing on the Cut-off Date. With respect to each
Class of Principal Balance 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 Principal Balance
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.
It is the intention of the parties hereto that the
segregated pool of assets consisting of any collections of Additional Interest
received on the ARD Loans constitute a Grantor Trust for federal income tax
purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust D". The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust D 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 Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
D, the Trustee shall execute, authenticate and deliver to or upon the order of
the Depositor the Class D Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust D. The rights of the Holders
of the Class D Certificates to receive distributions from the proceeds of
Grantor Trust D, 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 Master Servicer and the Special Servicer
shall service and administer the Mortgage Loans and any REO Properties 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 express terms of this Agreement and the
respective Mortgage Loans and, to the extent consistent with the foregoing, in
accordance with the Servicing Standard. The Master 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 Master 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 Master
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
Master Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property.
(b) Subject to Section 3.01(a), the Master 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
Master 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 Master 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 and 3.20, any and all
assumptions, 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
Master Servicer or the Special Servicer, furnish, or cause to be so furnished,
to the Master Servicer or the Special Servicer, as appropriate, any limited
powers of attorney and other documents (each of which shall be prepared by the
Master 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 Master Servicer or the Special Servicer.
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(c) The relationship of each of the Master 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.
(a) The Master 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 Master Servicer
nor the Special Servicer shall, with respect to any 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 Master Servicer (as to Performing Mortgage
Loans) and the Special Servicer (as to Specially Serviced Mortgage Loans) each
may waive any Default Charges in connection with any specific delinquent
payment on a Mortgage Loan it is obligated to service hereunder.
(b) Ninety (90) days prior to the maturity date of each
Balloon Mortgage Loan, the Master Servicer shall send a notice to the related
Borrower 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 Master 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 Master 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 Borrower 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 Borrower on balances in the Servicing Account (or, if
and to the extent not payable to the related Borrower, and subject to Section
3.06, to pay such interest or other income to the Master Servicer); or (v) to
clear and terminate the Servicing Account at the termination of this Agreement
in accordance with Section 9.01. The Master Servicer shall pay or cause to be
paid to the Borrowers 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
Master Servicer shall deposit in a Servicing Account any amount not required
to be
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deposited therein, it may at any time withdraw such amount from such Servicing
Account, any provision herein to the contrary notwithstanding. Promptly after
any Escrow Payments are received by the Special Servicer from any Borrower,
and in any event within two Business Days after any such receipt, the Special
Servicer shall remit such Escrow Payments to the Master Servicer for deposit
in the applicable Servicing Account(s).
(b) The Master 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 Master 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 Borrower to escrow for
the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, each of the Master 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 Borrower make
payments in respect of such items at the time they first become due.
(c) In accordance with the Servicing Standard, the Master
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 Borrower is not required
to make Escrow Payments for real estate taxes, the Master 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 Borrower are insufficient to pay such item when
due, (y) the related Borrower 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 Borrowers and further as provided
in Section 3.05(a). No costs incurred by the Master 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 Master Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
(d) The Master 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 Borrower 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
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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 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 Borrower 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 Master Servicer, unless
otherwise required to be paid to the related Borrower by law or the terms of
the related Mortgage Loan. Any out-of-pocket expenses incurred by the Master
Servicer to enable the Master Servicer to make any draw under any Letter of
Credit shall constitute a Servicing Advance, and the Master Servicer shall
make reasonable efforts to recover such expenses from the related Borrower to
the extent the Borrower 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 Master Servicer shall request from the Borrower 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 Master
Servicer shall request from the Borrower 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 Borrower shall fail to promptly
respond to any inquiry described in this Section 3.03(e), the Master Servicer
shall notify the Trustee, the Special Servicer and the Controlling Class
Representative. The Master Servicer shall promptly notify the Trustee, the
Special Servicer and the Controlling Class Representative if the Master
Servicer shall determine that any Borrower 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, Distribution Account and
Interest Reserve Account.
(a) The Master 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 Master
Servicer shall deposit or cause to be deposited in the Collection Account,
upon receipt (in the case of payments by Borrowers 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 Master 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 Column or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse):
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(i) all payments on account of principal of the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, including Default Interest and Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges 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 Master
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 Master
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 Borrower 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 Borrowers 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 Master Servicer
in the Collection Account. The Master 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 Master 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
Master 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 Master 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
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REO Property shall be deposited by the Special Servicer into the REO Account
and remitted to the Master Servicer for deposit into the Collection Account
pursuant to Section 3.16(c).
(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 two 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, and (ii) one of which
sub-accounts (such sub-account, the "Class D Sub-Account") shall be deemed to
be held in trust for the benefit of the Holders of the Class D Certificates.
By 2:00 p.m. (New York City time) on each Master Servicer Remittance Date, the
Master Servicer shall deliver to the Trustee, for deposit in the Distribution
Account, an aggregate amount of immediately available funds equal to the
Master Servicer Remittance Amount for such Master Servicer Remittance Date.
Immediately upon deposit of the Master Servicer Remittance Amount for any
Master Servicer Remittance Date into the Distribution Account, any portion
thereof that represents any Additional Interest related to the ARD Loans shall
be deemed to have been deposited into the Class D Sub-Account and the
remaining portion thereof shall be deemed to have been deposited into the
REMIC Sub-Account. In addition, the Master 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 Master Servicer 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. As and when required pursuant to Section 3.05(c), the Trustee shall
transfer Interest Reserve Amounts in respect of the Interest Reserve Loans
from the Interest Reserve Account to the Distribution Account.
(c) The Trustee shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account") to be held in trust
for the benefit of the Certificateholders. Each account that constitutes the
Interest Reserve Account shall be an Eligible Account. On the Distribution
Date in January (except during a leap year) and February of each calendar
year, commencing in 1999, prior to any distributions being made in respect of
the Certificates on such Distribution Date, the Trustee shall, with respect to
each Interest Reserve Loan, withdraw from the Distribution Account and deposit
in the Interest Reserve Account an amount equal to the Interest Reserve
Amount, if any, in respect of such Interest Reserve Loan for such Distribution
Date.
(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 Master Servicer shall give notice to the other parties hereto
of the location of the Collection Account as of the Closing Date and of the
new location of the Collection Account prior to any change thereof. The
Distribution Account and Interest Reserve Account shall each 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
each of the Distribution Account and Interest Reserve Account prior to any
change thereof.
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SECTION 3.05. Permitted Withdrawals From the Collection
Account, the Distribution Account and the
Interest Reserve Account.
(a) The Master 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 Master Servicer Remittance Amount for each Master
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 Master 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 Master Servicing Fees
and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing
Fees in respect of each Performing Mortgage Loan, the Master
Servicer's right to payment pursuant to this clause (iii) with
respect to any Mortgage Loan being limited to amounts received on or
in respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds, Insurance Proceeds or otherwise) that are
allocable as interest thereon, including any such amounts received in
respect of such Mortgage Loan (or any related REO Property) after
such Mortgage Loan has ceased to be a Performing Mortgage Loan;
(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 Master
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 Borrower 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 of the particular Mortgage Loan or REO Property
as to which such Servicing Advance was made;
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(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 Master 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 Master 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, and the related Default
Charges then on deposit in the Collection Account are not sufficient
to make such payment, 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 Master Servicer Remittance Amount
not remitted by the Master Servicer to the Trustee on or before 5:00
p.m., New York City time, on the related Master 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);
(xvi) to pay itself, the Special Servicer, the REMIC
Administrator, the Depositor, the Trustee, any Fiscal Agent, or any
of their respective directors, members, managers, officers, employees
and agents, as the case may be, out of general collections on the
Mortgage Loans and any
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REO Properties, any amounts payable to any such Person pursuant to
Section 6.03, Section 7.01(b), Section 8.05(b) 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 Master 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, Column, a 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 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 Master
Servicer and Special Servicer.
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The Master 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 Master 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 Master
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, including the Trustee's Fee;
(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(b) 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.
(c) On the Master Servicer Remittance Date in March of each
year (commencing in March 1999), the Trustee shall withdraw from the Interest
Reserve Account and deposit in the Distribution Account
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all Interest Reserve Amounts in respect of the Interest Reserve Loans then on
deposit in the Interest Reserve Account. In addition, the Trustee may from
time to time make withdrawals from the Interest Reserve Account to pay the
Master Servicer, as additional servicing compensation in accordance with
Section 3.11(b), interest and investment income earned in respect of amounts
held in the Interest Reserve Account as provided in Section 3.06(b) (but only
to the extent of the Net Investment Earnings with respect to the Interest
Reserve Account for any Collection Period).
(d) The Trustee, any Fiscal Agent, the Depositor, the Master
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 Master 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 Master Servicer may direct (pursuant to a standing
order or otherwise) any depository institution (including the Trustee)
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; and provided, further,
that the funds in any Investment Account shall remain uninvested unless and
until the Master Servicer gives timely investment instructions with respect
thereto pursuant to this Section 3.06. 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 Master Servicer (with respect to Permitted Investments of
amounts in the Collection 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 Master 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 Master 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 Trustee (in
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the case of the Interest Reserve Account), the Master 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 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 Trustee, the Master
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 Master 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
Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.05(a). Whether or not the Master 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 Master 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
Borrower 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), the Master
Servicer (in the case of the Collection Account, the Interest Reserve Account
and 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 Master
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 Master
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
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in the REO Account. This provision is in no way intended to limit any actions
that the Master Servicer or Special Servicer may take in this regard at its
own expense.
(d) Amounts on deposit in the Distribution Account shall
remain uninvested.
(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 Master 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 Master 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 Borrower
is required to maintain, the Master 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 Borrower shall be required to
obtain the required insurance coverage from Qualified Insurers that, in each
case, have a financial strength or claims-paying rating no lower than two
rating categories below the highest rated Certificates outstanding, and in any
event no lower than "Baa2" from Moody's (if then rated by Moody's; and, if not
then rated by Moody's, "A:IX" or better from A.M. Best) 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 Borrower 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 financial strength or claims-paying
rating no lower than two rating categories below the highest rated
Certificates outstanding, and in any event no lower than "Baa2" from Moody's
(if then rated by Moody's; and, if not then rated by Moody's, "A:IX" or better
from A.M. Best) and "A" from Fitch (if then rated by Fitch; and, if not then
rated by Fitch, "A:IX" or better 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 Master 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 Master Servicer or the Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Borrower, 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
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pursuant to Section 3.16(c), in the case of amounts received in respect of an
REO Property. Any cost incurred by the Master 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 Master Servicer
on behalf of the Trust to enforce any obligations of the related Borrower
under such Mortgage Loan.
(b) If the Master 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 financial strength or claims-paying rating no lower
than "Baa2" from Moody's and "A" from Fitch (if then rated by Fitch; and, if
not then rated by Fitch, "A:IX" or better from A.M. Best) or is issued by an
insurer with such other financial strength or 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 Master 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 Master 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 Master 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 Master 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 financial strength or
claims-paying rating no lower than two rating categories below the highest
rated Certificates outstanding, and in any event no lower than "Baa2" from
Moody's 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 financial strength or 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 Master 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 Master 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.
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Each of the Master 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 financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "Baa2"
from Moody's 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,
employees and agents 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 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 Master 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 Master 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.
SECTION 3.08. Enforcement of Alienation Clauses.
The Master 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 Borrower, unless the Master 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 Master 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 Borrower as such Mortgage Loan or have Borrowers that are known to be
affiliated with the Borrower under such Mortgage Loan, represents 2% or more
of the then aggregate principal balance of the Mortgage Pool, 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
determination to waive the Trust's rights under a "due-on-sale" or "due- on
encumbrance" clause, the Master Servicer or the Special Servicer, as
appropriate, shall deliver to the Trustee and the other such party an
Officer's Certificate setting forth the basis for such determination. The
Master Servicer and the Special Servicer shall each provide the other with all
such information as each may reasonably request in order to make such
determination. Notwithstanding the foregoing, neither the Master 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 Borrower.
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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 Master Servicer nor the
Special Servicer shall, with respect to any 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.
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
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(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, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trust, obtain title to a Mortgaged Property by foreclosure, deed in lieu
of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders, 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
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 Master
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, as well as the cost
of any remedial, corrective or other further action contemplated by clause
(ii) of the preceding paragraph, shall be advanced by the Master Servicer at
the direction of the Special Servicer given in accordance with the Servicing
Standard subject to Section 3.19; provided, however, that the Master 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).
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The Special Servicer shall not be liable to the Trust, the
Certificateholders or any other party hereto for: (i) any determination made
by the Special Servicer pursuant to this Section 3.09(c) in good faith in
accordance with the Servicing Standard, without negligence or misfeasance on
the part of the Special Servicer, based on the environmental testing
contemplated above with respect to any Mortgaged Property; or (ii) any action
taken by the Special Servicer (including its refraining from action) in good
faith in accordance with the Servicing Standard, without negligence or
misfeasance on the part of the Special Servicer, based on such determination.
(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, 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
Master Servicer and the Controlling Class Representative monthly in writing as
to any actions taken by the Special Servicer with respect to any 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 Master Servicer shall promptly provide
to the Special Servicer on a timely basis all information in the Master
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 Master 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 Master
Servicer no later than the 10th Business Day following such Final Recovery
Determination.
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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 Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master 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 be accompanied by the form of any release or
discharge to be executed by the Trustee and 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 Master Servicer and
shall deliver to the Master Servicer such accompanying release or discharge,
duly executed. 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 Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof),
then, upon request of the Master Servicer and receipt from the Master 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, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
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 Master 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 Borrower 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 Master 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
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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 Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Performing Mortgage Loan, which fee shall be payable commencing in the
month following the month of accrual. As to each Performing Mortgage Loan, for
each calendar month (commencing with December 1998) or any applicable portion
thereof, the Master Servicing Fee shall accrue (on a 30/360 Basis) at the
Master Servicing Fee Rate on the Stated Principal Balance of such Mortgage
Loan outstanding immediately following the Distribution Date in such calendar
month (or, in the case of December 1998, on the Cut-off Date Balance of such
Mortgage Loan). The Master Servicing Fee with respect to any Performing
Mortgage Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof, if such Mortgage Loan becomes a Specially Serviced Mortgage Loan or
if the related Mortgaged Property becomes an REO Property. Master Servicing
Fees earned with respect to any Performing Mortgage Loan shall be payable
monthly from payments of interest on such Mortgage Loan. The Master Servicer
shall be entitled to recover unpaid Master Servicing Fees in respect of any
Performing Mortgage Loan out of the portion any related Insurance Proceeds or
Liquidation Proceeds allocable as interest on such Mortgage Loan (including
any such amounts received after such Mortgage Loan has ceased to be a
Performing Mortgage Loan) and out of any related Insurance Proceeds,
Liquidation Proceeds and REO Revenues received in respect of any related REO
Property and allocable as interest on the successor REO Mortgage Loan. The
right to receive the Master Servicing Fee may not be transferred in whole or
in part except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement.
(b) The Master 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 or was a Performing Mortgage Loan, any Net Default
Charges collected on such Mortgage Loan;
(ii) any and all assumption fees, assumption application
fees, modification fees, extension fees, charges for beneficiary
statements or demands and amounts collected for checks returned for
insufficient funds, in each case to the extent actually paid by
Borrower with respect to a Performing Mortgage Loan;
(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 Master 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, further, 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 Borrower under applicable
law or under the related Mortgage).
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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 Master 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, which fee shall be payable commencing in the month following
the month of accrual. As to each Specially Serviced Mortgage Loan and REO
Mortgage Loan, for any particular calendar month or applicable portion
thereof, the Special Servicing Fee shall accrue (on a 30/360 Basis) at the
Special Servicing Fee Rate on the Stated Principal Balance of such Mortgage
Loan or REO Mortgage Loan, as the case may be, outstanding immediately
following the Distribution Date in such calendar month. 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, in the case of a Specially Serviced Mortgage Loan, as of the date
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 (other than Additional
Interest and Default Interest) and principal received on such Mortgage Loan
for so long as it remains a Corrected Mortgage Loan (net of any portion of
such collection payable or reimbursable to the Master Servicer, the Special
Servicer or the Trustee for related unpaid or unreimbursed Master Servicing
Fees, 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
would become payable if and when such Mortgage Loan again became 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 Borrower 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
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder pursuant to Section 3.18 or Section 9.01, or the purchase or
replacement thereof by a Third Party Originator pursuant to the related Third
Party Originator Agreement or the purchase or replacement thereof by Column
pursuant to the 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 (other than any portion of any such payment or proceeds that
represents Additional Interest, Default Interest, a Prepayment Premium or a
Yield Maintenance Charge and net of any
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portion of any such payment or proceeds payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee to cover related unpaid or
unreimbursed Master Servicing Fees, Special Servicing Fees, Advances and/or
Advance Interest). 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 or was a Specially Serviced Mortgage Loan or
allocable to any 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
(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 Master Servicer with respect to
Specially Serviced Mortgage Loans, the Master 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 Master 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,
the Servicing Accounts or the REO Account, and neither the Master Servicer nor
the Special Servicer shall be entitled to reimbursement for any such expense
incurred by it except as expressly provided in this Agreement. If the Master
Servicer is required to make any Servicing Advance hereunder at the discretion
of the Special Servicer in accordance with Section 3.19 or otherwise, the
Special Servicer shall promptly provide the Master Servicer with such
documentation regarding the subject Servicing Advance as the Master Servicer
may reasonably request.
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(f) If the Master 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 Master Servicer or
Special Servicer, as the case may be, give notice of such failure, as
applicable, to the Master Servicer and the Special Servicer. If such Advance
is not made by the Master 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 Master 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 after
the related Servicing Advance has been reimbursed pursuant to this Agreement,
out of general collections on the Mortgage Loans and REO Properties on deposit
in the Collection Account. The Master 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 Master 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 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, the Trustee
(unless it is the Person making such determination) and the Controlling Class
Representative, 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 Master
Servicer or the Special Servicer with respect to a particular Servicing
Advance, and the Master 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 Master 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
Master 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 Master Servicer and the Special Servicer.
(i) Notwithstanding anything to the contrary set forth
herein, the Master 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 Master Servicer or the Special Servicer, would constitute a Nonrecoverable
Servicing Advance; provided that the Master Servicer (or the Special Servicer,
if a Specially Serviced Mortgage Loan or an REO Property is involved)
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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, the Trustee and the Controlling Class Representative, 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 Master 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 Master Servicer.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall, at its expense, 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. Beginning in 1999,
the Master 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 an unpaid principal balance of under
$2,000,000, once every two years), if the Special Servicer has not already
done so during that period pursuant to the preceding sentence. The Master
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 Master Servicer or Special Servicer, as applicable, is aware,
(ii) any change in the condition, occupancy or value of the Mortgaged Property
that the Master Servicer or the Special Servicer, as applicable, in accordance
with the Servicing Standard, considers material, or (iii) any waste committed
on the Mortgaged Property. The Master Servicer and the Special Servicer shall
each deliver to the Trustee, the Depositor, the Underwriter, the Controlling
Class Representative, each other and, upon request thereby, any
Certificateholder or Certificate Owner verified as such by the Trustee, a copy
(or image in suitable electronic media) of each such written report prepared
by the Master Servicer or the Special Servicer within 60 days of completion of
the related inspection.
(b) The Special Servicer, in the case of any Specially
Serviced Mortgage Loan, and the Master Servicer, in the case of all Performing
Mortgage Loans, shall make reasonable efforts to collect promptly from each
related Borrower quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and financial statements of such
Borrower, 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 Master Servicer and the
Special Servicer shall each deliver copies of all of the foregoing items so
collected thereby to the Trustee, the Depositor, the Underwriter, the
Controlling Class representative and each other, in each case within 60 days
of its receipt thereof.
Within 45 days after receipt by the Master Servicer, as to
Performing Mortgage Loans, and within 20 days after receipt by the Special
Servicer, as to Specially Serviced Mortgage Loans, of any annual operating
statements or rent rolls with respect to any Mortgaged Property or REO
Property, the Master Servicer or the Special Servicer, as applicable, shall,
based upon such operating statements or rent rolls, prepare (or, if previously
prepared, update) the written analysis of operations (the "Operating Statement
Analysis Report"), and the Special Servicer shall remit each Operating
Statement Analysis Report prepared
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by it, together with the underlying operating statements and rent rolls, to
the Master Servicer in a format reasonably acceptable to the Master Servicer.
All Operating Statement Analysis Reports shall be maintained by the Master
Servicer with respect to each Mortgaged Property and REO Property, and the
Master Servicer shall forward copies thereof to the Trustee, the Controlling
Class Representative and, upon written request, any Certificateholder or, to
the extent the Trustee has in accordance with Section 5.06(b) confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner,
together with the related operating statement or rent rolls. The Master
Servicer shall maintain an Operating Statement Analysis Report with respect to
each Mortgaged Property and REO Property. Each such Operating Statement
Analysis Report shall be substantially in the form of Exhibit E-8 attached
hereto (or, at the discretion of the Master Servicer (provided that no less
information is provided than is set forth in Exhibit E-8, in a CSSA format).
Within 45 days after receipt by the Master Servicer or 20
days after receipt by the Special Servicer of any annual operating statements
with respect to any Mortgaged Property or REO Property, as applicable, each of
the Master Servicer and the Special Servicer shall prepare or update (and, in
the case of the Special Servicer, forward within such 20-day period to the
Master Servicer in an electronic format reasonably acceptable to the Master
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 12:00 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 Master Servicer and
the Controlling Class Representative the following reports (or data files
relating to reports of the Master Servicer) with respect to the Specially
Serviced Mortgage Loans and any REO Properties, providing the required
information as of such Determination Date: (i) a CSSA Property File; and (ii)
a CSSA Loan Periodic Update File. At or before 12:00 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 Master
Servicer the following reports with respect to the Specially Serviced Mortgage
Loans and any REO Properties, providing the information required of the
Special Servicer in an electronic format reasonably acceptable to the Master
Servicer 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 Master Servicer shall
prepare (if and to the extent necessary) and deliver or cause to be delivered
to the Trustee data files relating to the following reports: (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, CSSA Loan Periodic Update File and Comparative Financial Status
Report (in each case combining the reports prepared by the Special Servicer
and the Master 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 Master
Servicer the reports set forth in Section 3.12(b) and Section 3.12(c), and the
Master 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, the Master Servicer and the Trustee. The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee may,
absent manifest error, conclusively rely on the reports to be provided by the
Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant
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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(b) or 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(b) or Section 3.12(c), the
Master 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 Master 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(b) or Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of
the Master 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 Master Servicer or Special Servicer so
fails because such disclosure, in the reasonable belief of the Master 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
Master 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).
(g) The Depositor shall provide to the Master 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
Set-up File, the CSSA Loan Periodic Update File and the CSSA Property File.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master 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
Master 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 Master 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 Master
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 Grantor Trust D 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); provided that neither the Master Servicer nor
the Special Servicer shall be required to deliver its Annual Performance
Certification until April 30 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.
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning in 1999, each
of the Master 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, the Underwriter, the
Controlling Class Representative and each other, to the effect that such firm
has examined such documents and records as it has deemed necessary and
appropriate
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relating to the Master Servicer's or the Special Servicer's, as the case may
be, servicing of the Mortgage Loans under this Agreement or the servicing of
mortgage loans similar to the Mortgage Loans under substantially similar
agreements for the preceding calendar year (or during the period from the date
of commencement of the Master Servicer's or the Special Servicer's, as the
case may be, duties hereunder until the end of such preceding calendar year in
the case of the first statement) and that the assertion of the management of
the Master Servicer or the Special Servicer, as the case may be, that it
maintained an effective internal control system over servicing of the Mortgage
Loans or similar mortgage loans is fairly stated in all material respects,
based upon established criteria, which statement meets the standards
applicable to accountants' reports intended for general distribution; provided
that neither the Master Servicer nor the Special Servicer shall be required to
cause the delivery of its Annual Accountants' Report until April 30 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 Master 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.
SECTION 3.15. Access to Certain Information.
Each of the Master 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 Master Servicer or the Special Servicer, as the case may be,
designated by it. The Master 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
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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 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 Master 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, reasonable travel
expenses 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).
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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 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.
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(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
(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 Master Servicer shall, at the
direction of the Special Servicer in accordance with Section 3.19, advance
such amounts as are necessary for such purposes unless the Master Servicer or
the Special Servicer determines, in its reasonable, good faith judgment, that
such advances would, if made, be Nonrecoverable Servicing Advances; provided,
however, that the Master 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
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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.
(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 Master Servicer, and the Trustee shall, within 5
days after receipt of such notice, notify all the Holders of Certificates of
the Controlling Class. The Majority Controlling Class Certificateholder may,
at its or their option, within 30 days after receipt of such notice, 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 Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Certificateholder(s) effecting such
purchase (or its or their 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(s) ownership of such Mortgage Loan. In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the Certificateholder(s) effecting such purchase (or
its or their designee).
(c) If the Majority Controlling Class Certificateholder has
not purchased 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, then the Trustee shall within 5
days of the end of such 30-day period send notice to the Master Servicer and
the Special Servicer that such Mortgage Loan was not purchased by such
Certificateholder(s), and either the Special Servicer or the Master Servicer
(in that order
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of priority) may, at its option, within 30 days after receipt of such notice,
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 Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Master Servicer or the Special Servicer, as applicable, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer, as applicable, the ownership of such Mortgage Loan. In connection
with any such purchase by the Master Servicer, the Special Servicer shall
deliver the related Servicing File to the Master Servicer.
(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 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 Master
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
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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
Master 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 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 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
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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 Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account by 2:00 p.m. (New York City time) on each
Master Servicer Remittance Date, without any right of reimbursement therefor,
an amount (a "Compensating Interest Payment") 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 Prepayment
Interest Excesses, Master Servicing Fees and, for so long as the same Person
is acting as Master Servicer and Special Servicer, Basic Special Servicing
Fees received by the Master Servicer during such Collection Period.
(b) No more frequently than once per calendar month, the
Special Servicer may require the Master Servicer, and the Master Servicer
shall be obligated, out of the Master Servicer's own funds, to reimburse the
Special Servicer for any Servicing Advances (other than Nonrecoverable
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 Master Servicer's
reimbursement to the Special Servicer of any Servicing Advance and payment to
the Special Servicer of interest thereon, all in accordance with this Section
3.19(b), the Master Servicer shall for all purposes of this Agreement be
deemed to have made such Servicing Advance at the same time as the Special
Servicer actually made such Servicing Advance, and accordingly, the Master
Servicer shall be entitled 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
Master 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 this
Agreement, if the Special Servicer is required under this Agreement to make
any Servicing Advance but does not desire to do so, the Special Servicer may,
in its sole discretion, request that the Master Servicer make such Servicing
Advance. Any such request shall be made, in writing, in a timely manner that
does not adversely affect the interests of any Certificateholder (and, in any
event, to the extent reasonably practicable, at least five (5) Business Days
in advance of the date on which the subject Servicing Advance is to be made)
and shall be accompanied by such information and documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request. The
Master 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
of the Master Servicer's receipt of such request. If the request is timely and
properly made, the Special Servicer shall be relieved of any obligations with
respect to a Servicing Advance that it so requests the Master Servicer to make
(regardless of whether or not the Master Servicer shall make such Servicing
Advance). The Master Servicer shall be entitled to reimbursement for any
Servicing Advance made by it at the direction of the Special Servicer,
together with 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
Master Servicer is entitled with respect to any other Servicing Advances made
thereby.
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Notwithstanding the foregoing provisions of this Section
3.19(b), the Master 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 Master 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 Master Servicer shall notify the Special
Servicer in writing of such determination and, if applicable, 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) the date on which the
Borrower under any Mortgage Loan becomes the subject of bankruptcy, insolvency
or similar proceedings, (iii) the 60th day (or, in the case of a Modified
Mortgage Loan or a Mortgage Loan where the Borrower has been the subject of a
bankruptcy, insolvency or similar proceedings since the Closing Date, the 30th
day) following the occurrence of any uncured delinquency in Monthly Payments
with respect to any Mortgage Loan, (iv) the date on which a receiver is
appointed and continues in such capacity in respect of the Mortgaged Property
securing any Mortgage Loan and (v) 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 deliver a copy thereof
to the Trustee, the Master Servicer 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.
With respect to each Required Appraisal Loan (unless such
Mortgage Loan has become a Corrected Mortgage Loan and has remained current
for at least twelve consecutive Monthly Payments, and no other Servicing
Transfer Event has occurred with respect thereto during the preceding twelve
months, 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) and, upon receipt, based upon such update, 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 Master 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 Master Servicer and the
Controlling Class Representative of such recalculated Appraisal Reduction
Amount.
(d) The Master 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.
(e) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment
Premium or Yield Maintenance Charge, as the case may be, payable under the
terms of the related Mortgage Note. Upon written request of any
Certificateholder,
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the Master Servicer shall disclose to such Certificateholder its calculation
of any such Prepayment Premium or Yield Maintenance Charge.
(f) The Master Servicer shall not permit defeasance of any
Mortgage Loan on or before the second anniversary of the Closing Date.
Subsequent to the second anniversary of the Closing Date, to the extent that
the Master Servicer can, in accordance with the related loan documents,
require defeasance of any Mortgage Loan in lieu of accepting a prepayment of
principal thereunder, including a prepayment of principal accompanied by a
Prepayment Premium or Yield Maintenance Charge, the Master Servicer shall, to
the extent it is not inconsistent with the Servicing Standard, require such
defeasance, provided that (i) the defeasance collateral consists of U.S.
Treasury obligations, (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event in respect of any REMIC
Pool, (iii) the Master Servicer has notified the Rating Agencies, (iv) the
Master Servicer has confirmed that such defeasance will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (provided
that the requirement to obtain such confirmation will be a precondition to the
defeasance only if the Master 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 Master Servicer has requested and received from the
related Borrower (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
Master Servicer pursuant to this Section 3.19(f) shall be paid by the Borrower
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.
(g) The Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Borrower under a Ground Lease,
promptly (and in any event within 45 days of the Closing Date) notify the
related ground lessor of the transfer of such Mortgage Loan to the Trust
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related Ground Lease should thereafter be forwarded to the
Master Servicer.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (as to Specially Serviced Mortgage
Loans) and, to the limited extent permitted below, the Master Servicer (as to
Performing Mortgage Loans) 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 Charges 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 Borrower 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(i) and 3.20(f), the Master 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 Master Servicer shall promptly
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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 (for no
additional compensation) 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 Master Servicer of all
information reasonably requested thereby in order to make an informed
decision, such consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02, 3.08 and
3.20(f), the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, agree to (or, in the case of any Performing
Mortgage Loan, consent to the Master Servicer's agreeing to) any
modification, waiver or amendment of any term of, or, in the case of
any Specially Serviced Mortgage Loan, take (or, in the case of any
Performing Mortgage Loan, consent to the Master 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 Mortgage Rate), than would liquidation;
(iii) the Special Servicer shall not, in the case of any
Specially Serviced Mortgage Loan, extend (or, in the case of any
Performing Mortgage Loan, consent to the Master Servicer's extending)
the date on which any Balloon Payment is scheduled to be due on any
Mortgage Loan to a date beyond the earliest of (A) the fifth
anniversary of such Mortgage Loan's Stated Maturity Date, (B) two
years prior to the Rated Final Distribution Date and (C) if such
Mortgage Loan is secured by a Mortgage solely or primarily on the
related Borrower's leasehold interest in the related Mortgaged
Property, ten years prior to the end of the then current term of the
related Ground Lease; and, furthermore, the Special Servicer shall
not, in the case of any Specially Serviced Mortgage Loan, grant (or,
in the case of any Performing Mortgage Loan, consent to the Master
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 related Borrower agrees to deliver to the Special
Servicer, the Trustee and the Controlling Class Representative,
quarterly operating statements with respect to the related Mortgaged
Property (the Special Servicer (or, if applicable, the Master
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 Master 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 or an Adverse
Grantor Trust Event with respect to the Grantor Trust;
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(v) the Special Servicer shall not, in the case of any
Specially Serviced Mortgage Loan, permit (or, in the case of any
Performing Mortgage Loan, consent to the Master Servicer's
permitting) any Borrower 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 Borrower, that such additional or
substitute collateral is in compliance with applicable environmental
laws and regulations and that there are no circumstances or
conditions present with respect to such new collateral relating to
the use, management or disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental
laws and/or regulations and (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, in the case of any
Specially Serviced Mortgage Loan, release (or, in the case of any
Performing Mortgage Loan, consent to the Master 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 Borrower, and (y)
notwithstanding clauses (i) through (vi) above, neither the Master Servicer
nor the Special Servicer shall be required to oppose the confirmation of a
plan in any bankruptcy or similar proceeding involving a Borrower 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.
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(c) Any payment of interest, which is deferred pursuant to
Section 3.20(a), shall not, for purposes of calculating monthly distributions
and reporting information to Certificateholders, 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 Master 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 Master Servicer and the Special Servicer
may, as a condition to its granting any request by a Borrower for consent,
modification, waiver or indulgence or any other matter or thing, the granting
of which is within the Master Servicer's or the Special Servicer's, as the
case may be, discretion pursuant 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 Borrower 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 Master 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 Master
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 Master
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 Master Servicer, the Trustee
and the Rating Agencies before the modification, waiver or amendment is agreed
to.
(f) With respect to any ARD Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, in its discretion, to
waive (such waiver to be in writing addressed to the related Borrower, with a
copy to the Trustee) all or any portion of the accrued Additional Interest if,
prior to the related maturity date, the related Borrower has requested the
right to prepay the Mortgage Loan in full together with all payments required
by the Mortgage Loan in connection with such prepayment except for such
accrued Additional Interest, provided that the Master Servicer had determined,
in its reasonable, good faith judgment, that the waiver of the Trust's right
to receive 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 Mortgage Rate) than a
refusal to waive the right to such Additional Interest. The Master Servicer
will have no liability to the Trust, the Certificateholders or any other
person so long as such determination is exercised in accordance with the
Servicing Standard.
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SECTION 3.21. Transfer of Servicing Between Master 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 Master Servicer is not
also the Special Servicer, the Master 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 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
Master Servicer or any Sub-Servicer thereof, the information, documents and
records to be delivered by the Master 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 Master 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 Master 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
Master Servicer; and, upon giving such notice and returning such Servicing
File to the Master Servicer, the Special Servicer's obligation to service such
Mortgage Loan, and the Special Servicer's right to receive the Special
Servicing Fee with respect to such Mortgage Loan, shall terminate, and the
obligations of the Master Servicer to service and administer such Mortgage
Loan 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 Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
the Master 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 Master
Servicer), and copies of any additional related Mortgage Loan information,
including correspondence with the related Borrower generated while such
Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The Master 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.
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(d) In connection with the performance of its obligations
hereunder, each of the Master 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 Master 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 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 Master 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 Master 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 Master 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 Master 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 Master
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 Master Servicer or Special Servicer, as the
case may be, contemplated by Section 3.20 hereof without the consent of the
Master Servicer or Special Servicer, as the case may be; and (vi) does not
permit the Sub-Servicer any greater rights of indemnification out of the Trust
Fund than those that the Master Servicer or the Special Servicer, as the case
may be, have pursuant to Section 6.03; provided that the appointment by the
Master 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 Master 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 Master 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 Master 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 Master 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 Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make Advances
shall be deemed to have been advanced by the Master Servicer or the Special
Servicer, as the case may be, out of its own funds and, accordingly, such
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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 Master 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 Master Servicer or the Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the
Master Servicer and the Special Servicer shall each be deemed to have received
any payment when a Sub-Servicer retained by it receives such payment.
(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 Master 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 Master 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 Master 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 Master 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 Master 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 other successor
Master Servicer or Special Servicer, as the case may be, shall succeed to the
rights and assume the obligations of the Master 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 Master
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 Master
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.
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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% of the
Class 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 those specified in 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% of the Class 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 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 the Majority
Controlling Class Certificateholder by 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 Master 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
Master 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 Master 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 and to each Holder (or,
in the case of Book-Entry Certificates, Certificate Owner) of the Controlling
Class. The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
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 such existing Controlling Class Representative.
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(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.
(e) Any and all expenses of the Controlling Class
Representative shall be borne by the Holders (or, if applicable, the
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 Borrower with respect to this Agreement
or any particular Mortgage Loan, the Controlling Class Representative shall
immediately notify the Trustee, the Master 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, (i) the
Controlling Class Representative had with regard to the particular matter
acted in good faith, without gross negligence or willful misfeasance and (ii)
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) Prior to taking any of the following actions, the
Special Servicer shall (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 (including a copy
of any document contained in the Servicing File):
(A) 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;
(B) any modification, amendment or waiver of any
Specially Serviced Mortgage Loan;
(C) any proposed sale of a defaulted Mortgage Loan
or REO Property (other than in connection with the
termination of the Trust Fund);
(D) any acceptance of a discounted payoff;
(E) any determination to bring an REO Property into
compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at an REO
Property;
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(F) any release of collateral for a Mortgage Loan
(other than in accordance with the terms of, or upon
satisfaction of, such Mortgage Loan);
(G) any acceptance of substitute or additional
collateral for a Mortgage Loan (other than in accordance
with the terms of such Mortgage Loan);
(H) any determination to seek a deficiency judgment
against the Mortgagor under any Specially Serviced Mortgage
Loan; and
(I) 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 Master 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) regardless of 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 gross
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 grossly 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
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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
Unreimbursed Principal Balance Reductions, if any,
with respect to each such Class of Certificates;
(iv) 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;
(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-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 clause (ii) above;
(vi) to reimburse the Holders of the Class A-2
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(vii) 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;
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(viii) after the Class Principal Balances of the Class
A-1A, Class A-1B 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) and (v) above;
(ix) to reimburse the Holders of the Class A-3
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(x) 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;
(xi) after the Class Principal Balances of the Class
A-1A, Class A-1B, 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) and
(viii) above;
(xii) to reimburse the Holders of the Class A-4
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(xiii) 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;
(xiv) 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 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), and (xi) above;
(xv) to reimburse the Holders of the Class B-1
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
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(xvi) 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;
(xvii) 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) and (xiv) above;
(xviii) to reimburse the Holders of the Class B-2
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(xix) 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;
(xx) 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) and (xvii) above;
(xxi) to reimburse the Holders of the Class B-3
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(xxii) 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;
(xxiii) 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 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;
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(xxiv) to reimburse the Holders of the Class B-4
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(xxv) 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;
(xxvi) 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) and (xxiii)
above;
(xxvii) to reimburse the Holders of the Class B-5
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(xxviii) 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;
(xxix) 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) and
(xxvi) above;
(xxx) to reimburse the Holders of the Class B-6
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(xxxi) 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;
(xxxii) 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
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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), (xxiii), (xxvi)
and (xxix) above;
(xxxiii) to reimburse the Holders of the Class C
Certificates, up to an amount equal to all
Unreimbursed Principal Balance Reductions, if any,
with respect to such Class of Certificates;
(xxxiv) 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(i), over (B) the aggregate
distributions made in respect of the Regular
Interest Certificates on such Distribution Date
pursuant to clauses (i) through (xxxiii) above;
(xxxv) 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(j), over (B) the aggregate
distributions deemed made in respect of the REMIC
II Regular Interests on such Distribution Date
pursuant to Section 4.01(i); and
(xxxvi) 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 (xxxv) 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) and (xxxii) 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 Principal Balance
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 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 CrossOver 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.
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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 to the Holders of the Class S
Certificates the entire amount of such Prepayment Premium as additional
interest.
If a Yield Maintenance Charge 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 among the Holders of the
respective Classes of Regular Interest Certificates in the proportions set
forth below the entire amount of such Yield Maintenance Charge as additional
interest:
(i) The Holders of the Class (or Classes) of Principal
Balance 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 (A) the amount of such Yield
Maintenance Charge, multiplied by (B) 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 Principal Balance
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 Charge was
received, over the relevant Discount Rate.
(ii) Any portion of such Yield Maintenance Premium that may
remain after such distributions on the Principal Balance Certificates
will be distributed to the Holders of the Class S Certificates.
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 the Stated Maturity Date (or, in the case of an ARD
Loan, the Anticipated Repayment Date) of the prepaid Mortgage Loan. If Release
H.15 is no longer published, the Master Servicer shall select a comparable
publication to determine the Treasury Rate.
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Any Prepayment Premiums and/or Yield Maintenance Charges
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) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account any amounts then on deposit in the Class D
Sub-Account of the Distribution Account that represent Additional Interest
collected in respect of the ARD Loans during or prior to the related
Collection Period and shall distribute such amounts to the Holders of the
Class D Certificates.
(d) 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 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 Principal Balance 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 Principal Balance 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.
(e) 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 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.
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(f) 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.
(g) 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 Principal Balance
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(g) shall not have been
surrendered for cancellation within six months after the time specified in
such notice, the Trustee shall mail a second notice to the remaining
non-tendering 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.
(h) 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 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.
(i) All distributions made in respect of each Class of
Principal Balance Certificates on each Distribution Date pursuant to Section
4.01(a) or 4.01(b) shall be deemed to have first been distributed from
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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
Charges) or in reimbursement of any related Unreimbursed Principal Balance
Reductions 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 Charges) or in reimbursement of any related Unreimbursed Principal
Balance Reductions 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(i). Notwithstanding the deemed distributions on the REMIC
II 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), 4.01(b) or 4.01(c), as applicable.
(j) 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(i), 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(j), 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 Unreimbursed
Principal Balance Reductions, if any, in respect of each
REMIC I Regular Interest.
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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(i), the Trustee shall be deemed to
have distributed to REMIC II each Prepayment Premium and Yield Maintenance
Charge 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(i), 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(j). Notwithstanding the deemed
distributions on the REMIC I Regular Interests described in this Section
4.01(j), actual distributions of funds from the Distribution Account shall be
made only in accordance with Section 4.01(a), 4.01(b) or 4.01(c), as
applicable.
SECTION 4.02. Statements to Certificateholders; Certain Other
Reports.
(a) Based solely on information provided to the Trustee by
the Master 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, provide or make available electronically (or, upon request,
by first class mail) to the Depositor, the Rating Agencies, the Controlling
Class Representative, each Certificateholder and, to the extent that the
Trustee has in accordance with Section 5.06(b) confirmed the Ownership
Interest in the Certificates held thereby, each Certificate Owner a statement
in respect of the distribution made on such Distribution Date substantially in
the form of, and containing the information set forth in, Exhibit E-1 hereto
(the "Trustee Report"); provided that the Trustee need not deliver to the
Depositor 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 provide or make
available electronically (or, upon request, by first class mail) to the
Depositor, the Rating Agencies, the Controlling Class Representative, each
Certificateholder and each Certificate Owner to which a Trustee Report was
forwarded on such Distribution Date, a copy of the following reports delivered
to it by the Master 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 provide or make available electronically on
each Distribution Date (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 Periodic Update File containing information regarding each
Mortgage Loan and the CSSA Property File containing information regarding each
Mortgaged Property and REO Property as of the end of the related Collection
Period. The Trustee Report, the CSSA Loan Periodic Update File, the CSSA
Property File and the reports referred to in the first sentence of this
paragraph collectively constitute the "Certificateholder Reports". Absent
manifest error, none of the Master Servicer, the Special Servicer or the
Trustee shall be
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responsible for the accuracy or completeness of any information supplied to it
by a Borrower or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer, the
Special Servicer or the Trustee, as applicable. None of the Trustee, the
Master Servicer or the Special Servicer shall have any obligation to verify
the accuracy or completeness of any information provided by a Borrower, a
third party or each other.
The Trustee shall make available each month, to
Certificateholders, Certificate Owners, prospective investors and any other
interested party, via the Trustee's Internet Website all Trustee Reports and
Unrestricted Servicer Reports 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; provided that,
unless (i) the particular report or information has been filed with the
Commission pursuant to Section 8.15 or (ii) the Depositor has notified the
Trustee that the Underwriter has sold the Non-Registered Certificates to
unaffiliated third parties, access to such reports and information on the
Trustee's Internet Website will be password protected to the same extent, and
limited to the same Persons, as the Restricted Servicer Reports. 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, Column, any
Rating Agency, the Controlling Class Representative 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 substantially 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, Column, 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.ctslink.com/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 Master Servicer shall deliver to the
Trustee and the Special Servicer the CSSA Loan Periodic Update File,
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
Periodic Update File 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 the Master
Servicer to the
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Trustee by telecopy or in such electronic or other form as may be reasonably
acceptable to the Trustee and the Master Servicer. The Special Servicer shall
from time to time (and, in any event, as may be reasonably required by the
Master Servicer) provide the Master Servicer with such information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties
as may be necessary for the Master Servicer to prepare each report and any
supplemental information to be provided by the Master Servicer to the Trustee.
Notwithstanding the foregoing, the failure of the Master
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 Master Servicer or the Special Servicer so fails because such
disclosure, in the reasonable belief of the Master 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 Master
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 Master 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 Master Servicer or the Special Servicer, as the case may be.
SECTION 4.03. P&I Advances; Advances relating to the Master
Servicer Remittance Amount.
(a) On or before 2:00 p.m., New York City time, on each P&I
Advance Date, the Master Servicer shall, subject 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 Master Servicer's records and
replaced by the Master Servicer by deposit in the Collection Account prior to
the next succeeding Master Servicer Remittance Date (to the extent not
previously replaced through the deposit of Late Collections of
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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 Master 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 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 Master Servicer
Remittance Amount required to be remitted on such date, then the Trustee shall
provide notice of such failure to the Master 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 Master 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 Master Servicer Remittance Amount that was required to be, but
was not, made or remitted, as the case may be, by the Master Servicer at or
prior to such time.
(b) The aggregate amount of P&I Advances to be made by the
Master 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 any
related Master 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
Borrower 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 Master
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 Master 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 Master Servicer with respect to a particular P&I Advance. The
Special Servicer shall promptly furnish any party required to make P&I
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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.
(d) The Trustee and any Fiscal Agent shall each be entitled
to reimbursement of the amount of any Master 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 Master
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, the Master 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 Master 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.
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 Principal Balance
Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then the Class Principal Balances of the
Class C, Class B-6, Class B-5, Class B-4, Class B-3, Class B-2, Class B-1,
Class A-4, Class A-3 and Class A-2 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 Principal Balance
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(i), 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-6, REMIC II Regular Interest B-5,
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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 and REMIC II Regular Interest A-2 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(j), 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 of the
related Mortgage Loan or REO Mortgage Loan, as the case may be (or, if
applicable in cases involving the substitution of multiple Replacement
Mortgage Loans, the aggregate Stated Principal Balance of each and every
related Mortgage 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 Master 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 Master 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 Class S, Class A, Class B-1 and Class B-2 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 Principal Balance 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 Master
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 Master 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 Master
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
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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.
(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 required 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:
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(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
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
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for taking any other action with respect to such
Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a
Holder of a Residual 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.
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(e) [Reserved.]
(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 canceled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such canceled 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.
SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A, Class B-1 and Class B-2
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
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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 Master 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 Master 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.
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
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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 Master 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 Master 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 paragraph 1 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 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 MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Depositor, the Master Servicer,
the Special Servicer and the REMIC
Administrator.
The Depositor, the Master 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 Master Servicer, the Special Servicer and the REMIC
Administrator herein.
SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator.
Subject to the following paragraph, each of the Depositor,
the Master Servicer, the Special Servicer and the REMIC Administrator shall
each keep in full effect its existence, rights and franchises as a
corporation, bank, trust company, partnership, limited liability company,
association or other 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 Master 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 Master Servicer, the Special Servicer or the REMIC
Administrator shall be a party, or any Person succeeding to the business of
the Depositor, the Master Servicer, the Special Servicer or the REMIC
Administrator, shall be the successor of the Depositor, the Master 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 Master 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
Master Servicer, the Special Servicer and the
REMIC Administrator.
None of the Depositor, the Master 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 Master
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
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otherwise be imposed by reason of misfeasance, bad faith or negligence in the
performance of, or reckless disregard of, such party's obligations or duties
hereunder. The Depositor, the Master 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 Master 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 Master
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, warranty or covenant 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 Master
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 Master 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 Master 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. Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
The REMIC Administrator, the Master 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 Master 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 Master 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 Master 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 Master 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; provided that, if no
successor REMIC administrator, master servicer or special servicer, as
applicable, shall have been so appointed and have accepted appointment within
90 days after the REMIC Administrator, Master Servicer or Special Servicer, as
the case may be, has given notice of such resignation, the resigning REMIC
Administrator, Master Servicer or Special Servicer,
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as applicable, may petition any court of competent jurisdiction for the
appointment of a successor REMIC administrator, master servicer or special
servicer, as applicable. In addition, the Master 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 the Master 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 Master 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 Master Servicer, the
Special Servicer or the REMIC Administrator are transferred to a successor
thereto, the entire amount of compensation payable to the Master 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 Master Servicer, the Special
Servicer and the REMIC Administrator.
The Master 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 Master
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 Master
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 Master 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 Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or exercise the rights of the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder;
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provided, however, that none of the Master 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 Master Servicer, the Special Servicer or the REMIC Administrator
and is not obligated to supervise the performance of the Master Servicer, the
Special Servicer or the REMIC Administrator under this Agreement or otherwise.
SECTION 6.06. Designation of Special Servicer by the
Controlling Class.
The Holder or Holders of the Certificates representing more
than 50% of the Class Principal Balance of 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
Master 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 Master 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. If the Controlling Class of Certificates
are Book-Entry Certificates, then the rights set forth in this Section 6.06
with respect to replacing the Special Servicer may be exercised by the related
Certificate Owners holding beneficial ownership of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class.
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SECTION 6.07. Master Servicer or Special Servicer as Owner of
a Certificate.
If, at any time during which the Master Servicer or the
Special Servicer or an Affiliate of the Master 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 Master 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 Master Servicer's or the Special Servicer's
reasonable, good faith judgment, violate the Servicing Standard, but that, if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
reasonable, good faith judgment, be considered by other Persons to violate the
Servicing Standard, then the Master Servicer or the Special Servicer may (but
need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (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 Master
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 Master
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 Master 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 Master 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 Master 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 Master 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 Master 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 Master 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 Master
Servicer for deposit into the Collection Account, any amount required
to be so deposited or remitted under this Agreement, which failure
continues unremedied for one Business Day following the date on which
such deposit or remittance, as the case may be, was first required to
be made; or
(iii) any failure by the Master 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 Master Servicer Remittance Date, the full amount of
the Master 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 Master Servicer Remittance
Date, as the case may be; or
(iv) any failure by the Master 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
Master 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 Master 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 Master Servicer or the
Special Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Master
Servicer or the Special Servicer, 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
Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master 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 Master 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
Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master 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, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Master Servicer, 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 Master 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, marshaling of assets and
liabilities or similar proceedings of or relating to it or of or
relating to all or substantially all of its property; or
(xii) the Master 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
(xiii) the Trustee shall have received notice from either of
the Rating Agencies to the effect that, or the Trustee shall
otherwise have actual knowledge, based on a written publication or
notification by such Rating Agency, that, the continuation of the
Master Servicer or the Special Servicer in such capacity would result
in a qualification, downgrade or withdrawal of any rating assigned
thereby to any Class of Certificates; or
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(xiv) one or more ratings assigned by either Rating Agency
to the Certificates shall have been qualified, downgraded or
withdrawn, or otherwise made the subject of a "negative" credit
watch, as a result of the Master Servicer or Special Servicer, as the
case may be, acting in such capacity; or
(xv) the Master Servicer or the Special Servicer, as the
case may be, shall no longer be "approved" by either Rating Agency to
act in such capacity for pools of mortgage loans similar to the
Mortgage Pool.
When a single entity acts as Master 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 Master
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 Depositor and Trustee each 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 (xv) 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 Master 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 Master
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
Master 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 Master 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 Master 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 Master
Servicer or Special Servicer pursuant to this paragraph
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shall be borne by the Master 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).
(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 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 Master
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 Master 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 Master 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 Master Servicer, the Special Servicer or
the REMIC Administrator, as the case may be, by the terms and provisions
hereof, including, if the Master Servicer is the resigning or terminated
party, the Master Servicer's obligation to make P&I Advances; provided,
however, that any failure to perform such duties or responsibilities caused by
the Master 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
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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 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 Master
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 Master 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 Master 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 Master 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 Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination
of the Master Servicer, the Special Servicer or the REMIC Administrator
pursuant to Section 7.01, any appointment of a successor to the Master
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), clause
(xiii), clause (xiv) or clause (xv) of Section 7.01(a) may be waived only by
all of the Certificateholders of the affected Classes.
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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 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 Master 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 and
place of conducting
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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 Master 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 Master 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 Master 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 required to expend or
risk its own
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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 Master
Servicer, the Special Servicer or the REMIC Administrator (unless the
Trustee is acting as Master 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 or beneficial
owners of the Certificates, made in
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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 Master 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 Master 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 Master 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 accrue during each calendar month, commencing with
December 1998, at the Trustee's Fee Rate on a
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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 December 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's Fee
shall accrue from time to time on a 30/360 Basis. 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 Master 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 Master 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 Master 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 Master 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 Master 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
Master 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 Master 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 Master 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 Master 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. In addition, the Trustee shall
at all times maintain a long-term unsecured debt rating of no less than "Aa3"
from Moody's and "AA" from 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 "Baa2" from Moody's and "BBB" from 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 "A1" from
Moody's and "A+" from 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,
Column, the Master 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 or the Trust, (iii) Column 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 Master 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 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.
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(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 Master 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 Master 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 Master 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 "Aa3" from Moody's and "AA" from 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 Master
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 Master 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 rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
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(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 Master 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 Master Servicer and the Trustee may consider necessary or
desirable. If the Master 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 Master 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 Master 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
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
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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 Master 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 Master Servicer
need not be obtained and the Trustee shall inform the Master 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,
Column or any Affiliate of the Depositor or Column, 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 Master 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, 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
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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 Master Servicer and the Special Servicer, respectively, to
the Trustee since the Closing Date; (v) all Annual Accountants' Reports caused
to be delivered by the Master Servicer and the Special Servicer, respectively,
to the Trustee since the Closing Date; (vi) the most recent inspection report
prepared by the Master 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
Borrower collected by the Master 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 Master 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 Master 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 Master 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
information confidential). Notwithstanding the foregoing, no
Certificateholder, Certificate Owner or prospective Certificateholder or
Certificate Owner need keep confidential any information received from the
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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 "Aa3" from
Moody's and "AA" from 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 "Aa3" from
Moody's and "AA" from 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.
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(b) To the extent that the Trustee is required, pursuant to
the terms of this Agreement, to make any Advance, whether as successor Master
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.
(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 Master 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.
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SECTION 8.15. Filings with the Securities and Exchange
Commission.
For so long as it is required under, and in accordance with,
the Exchange Act and applicable "no-action letters" issued by the Commission,
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 have
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 Master
Servicer or the Special Servicer to the Trustee shall be so delivered in the
format required for electronic filing via the EDGAR system; 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 (other than items
generated by the Trustee) that have not been received in such EDGAR-compatible
format nor shall it have any responsibility to convert any such items (other
than items generated by the Trustee) to such format.
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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 Master
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 Master Servicer and
approved by the Trustee, minus (C) if the purchaser is the Master 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
Master 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 Master 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 Master 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 Charges 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 Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder, such Person(s) shall deliver to the
Master Servicer for deposit (or, if the Master Servicer is the purchaser, it
shall deposit) in the Collection Account (after the Determination Date, and
prior to the Master Servicer Remittance Date, relating to the anticipated
Final Distribution Date) an amount in immediately available funds equal to the
Termination Price. On the Master Servicer Remittance Date for the Final
Distribution Date, the Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred thereto on such Master 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
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remaining Mortgage Loans and shall execute all assignments, endorsements and
other 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 Master 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 Master 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), 4.01(b) and/or 4.01(c).
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 Master 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
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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:
(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 Master 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
Master Servicer pursuant to Section 3.09(g) and all of the applicable income
tax and other information returns for Grantor Trust D). 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 Grantor
Trust D 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 Master Servicer, if
such tax arises out of or results from a breach by the Master 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), in all
other instances. If any tax is imposed on Grantor Trust D, 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 Master Servicer, if such tax arises out of or
results from a breach by the Master 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 Grantor Trust D 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 Master 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 Third Party Mortgage Loan, the related 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, the Interest Reserve 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,
the Interest Reserve 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 Master 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, Master 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 Master 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 Grantor Trust D 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 Grantor Trust
D, (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 Grantor Trust D.
(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 Master 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 Master Servicer and the Special Servicer, Banc One Mortgage
Capital Markets, LLC, address: 1717 Main Street --14th Floor, Dallas, Texas
75201, attention: Edgar L. Smith, II, telecopy number: (214) 290-4480, with a
copy to Banc One Mortgage Capital Markets, LLC, 1717 Main Street, Dallas,
Texas 75201, attention: Paul G. Smyth, telecopy number: (214) 290-4293; (iii)
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-CF2, telecopy number: (410) 884-2372; (iv) in the case of
the Rating Agencies, (A) Moody's Investors Service, Inc., 99 Church Street,
New York, New York 10007, Attention: Commercial MBS Monitoring Department,
telecopy number (212) 553-0300; and (B) in the case of Fitch IBCA, Inc., One
State
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Street Plaza, New York, New York 10004, attention: Commercial Mortgage
Surveillance Department, telecopy number: (212) 635-0295; 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
Borrower, 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 Master Servicer,
the Special Servicer or the REMIC Administrator and the appointment of
a successor;
(iv) the appointment, resignation or removal of a Fiscal
Agent;
(v) any change in the location of the Distribution Account
or the Interest Reserve Account;
(vi) any repurchase or substitution of a Mortgage Loan by
Column or a Third Party Originator as contemplated by Section 2.03;
and
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(vii) the final payment to any Class of Certificateholders.
(b) The Master 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 Master 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 Master 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 Master 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 aggregate Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of or material damage to a Mortgaged
Property.
(d) Each of the Master Servicer and the Special Servicer, as
the case may be, shall promptly furnish (or, in the case of the Master
Servicer, with the consent of the Depositor, make available via the Master
Servicer's Internet website) to 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.
(e) The Trustee shall promptly deliver to each Rating Agency
(in hard copy format or through use of the Trustee's Internet website for
Moody's) 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.
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(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 Master 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. 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.
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<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:
-------------------------------------
Name:
Title:
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
Master Servicer
By:
-------------------------------------
Name:
Title:
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
Special Servicer
By:
-------------------------------------
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
solely in its capacity as
Trustee and REMIC Administrator
By:
-------------------------------------
Name:
Title:
<PAGE>
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the ______ day of _________________ 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 ______________ 1998, before me, a
notary public in and for said State, personally appeared ___________________,
personally known to me to be the _____________________ of BANC ONE MORTGAGE
CAPITAL MARKETS, LLC, 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 _______________ 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-CF2
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.
<TABLE>
<S> <C>
Pass-Through Rate: Class Notional Amount of the Class S
Variable Certificates as of the Closing Date:
$_____________
Cut-off Date: December 1, 1998 Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
Closing Date: December 3, 1998 $_____________
First Distribution Date: Aggregate Stated Principal Balance of the
January 12, 1999 Mortgage Loans as of the Closing Date ("Initial
Pool Balance"): $1,107,680,439
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
Banc One Mortgage Capital Markets, LLC Norwest Bank Minnesota, National Association
Certificate No. S-_ CUSIP No.: ____________
</TABLE>
A-1-1
<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., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, 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 (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 DECEMBER 3, 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 A CONSTANT YIELD METHOD WITH
DAILY COMPOUNDING. 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 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.
A-1-2
<PAGE>
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. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Banc One Mortgage Capital Markets, LLC as master servicer and
special servicer (the "Master Servicer" and "Special Servicer", respectively,
depending upon the capacity in which it is acting, each of which terms includes
any successor entity under the Agreement), and Norwest Bank Minnesota, National
Association as trustee and REMIC administrator (the "Trustee" and "REMIC
Administrator", respectively, 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 12th day of
such month (or, if such 12th day is not a Business Day, 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 January, 1999,
will be the 7th day of such month or, if such 7th 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
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
A-1-3
<PAGE>
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 Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master 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 Master 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 Master 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
Master 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;
A-1-4
<PAGE>
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 Master 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 Master
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-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>
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-CF2
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.
<TABLE>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class
___% per annum [A-1A][A-1B] Certificates as of the Closing
Date: $_____________________
Cut-off Date: December 1, 1998 Initial Certificate Principal Balance of
Closing Date: December 3, 1998 this Certificate as of the Closing Date:
$________________
First Distribution Date: Aggregate Stated Principal Balance of the
January 13, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,107,680,439
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
Bank One Mortgage Capital Markets, LLC Norwest Bank Minnesota, National
Association
Certificate No. [A-1A][A-1B]-___ CUSIP No.: ________________
</TABLE>
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., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, 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 (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 DECEMBER 3, 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 A CONSTANT YIELD METHOD
WITH DAILY COMPOUNDING. 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.
A-2-2
<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 Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), Banc One Mortgage Capital Markets, LLC as master
servicer and special servicer (the "Master Servicer" and "Special Servicer",
respectively, depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), and Norwest Bank
Minnesota, National Association as trustee and REMIC administrator (the
"Trustee" and "REMIC Administrator", respectively, 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 12th day of
such month (or, if such 12th day is not a Business Day, 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 January,
1999, will be the 7th day of such month or, if such 7th 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-2-3
<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.
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 Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master 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 Master 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-2-4
<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 Master 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
Master 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 Master 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 Master
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-2-5
<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 [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-2-6
<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-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-2, CLASS A-3, CLASS A-4, CLASS B-1
AND CLASS B-2 CERTIFICATES
CLASS [A-2] [A-3] [A-4] [B-1][B-2] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1998-CF2
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.
<TABLE>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class [A-2]
______ % per annum [for A-2] variable [A-3] [A-4][B-1] [B-2] Certificates as of the
[for Class [A-3] [A-4] [B-1] [B-2]] Closing Date: $_________________
Cut-off Date: December 1, 1998 Initial Certificate Principal Balance of this
Closing Date: December 3, 1998 Certificate as of the Closing Date:
$______________
First Distribution Date: Aggregate Stated Principal Balance of the
January 13, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,107,680,439
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
Bank One Mortgage Capital Markets, LLC Norwest Bank Minnesota, National
Association
Certificate No. [A-2] [A-3] [A-4][B-1] CUSIP No.: ________________
[B-2]-__
</TABLE>
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 (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., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, 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 ("OID")
RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS
DECEMBER 3, 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
A-3-2
<PAGE>
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 A CONSTANT YIELD METHOD WITH DAILY
COMPOUNDING. 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-2]
[A-3][A-4] [B-1] [B-2] 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-2] [A-3] [A-4][B-1] [B-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. as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Banc One Mortgage
Capital Markets, LLC as master servicer and special servicer (the "Master
Servicer" and "Special Servicer", respectively, depending upon the capacity in
which it is acting, each of which terms includes any successor entity under the
Agreement), and Norwest Bank Minnesota, National Association as trustee and
REMIC administrator (the "Trustee" and "REMIC Administrator", respectively,
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 12th day of
such month (or, if such 12th day is not a Business Day, 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-2] [A-3] [A-4][B-1] [B-2] Certificates on the applicable Distribution
Date pursuant to the Agreement. The "Determination Date" in each month,
commencing in January, 1999, will be the 7th day of such month or, if such 7th
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
A-3-3
<PAGE>
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 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,
A-3-4
<PAGE>
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.
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 Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master 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
A-3-5
<PAGE>
hereof for all purposes, and none of the Depositor, the Master 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 Master 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
Master 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 Master 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 Master
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-3-6
<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-2] [A-3] [A-4][B-1] [B-2]
Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By: ________________________
Authorized Officer
A-3-7
<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-3-8
<PAGE>
EXHIBIT A-4
FORM OF CLASS B-3, CLASS B-4, CLASS B-5,
CLASS B-6 AND CLASS C CERTIFICATES
CLASS [B-3] [B-4] [B-5] [B-6] [C] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1998-CF2
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.
<TABLE>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class
______% per annum [B-3] [B-4] [B-5] [B-6] [C] Certificates as
of the Closing Date:
$__________________
Cut-off Date: December 1, 1998 Initial Certificate Principal Balance of this
Closing Date: December 3, 1998 Certificate as of the Closing Date:
$__________________
First Distribution Date: Aggregate Stated Principal Balance of the
January 13, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,107,680,439
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
Banc One Mortgage Capital Markets, LLC Norwest Bank Minnesota, National
Association
Certificate No. [B-3] [B-4] [B-5] [B-6] CUSIP No.: ___________
[C]-___
</TABLE>
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 (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., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, 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 ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 3, 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
A-4-2
<PAGE>
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 A CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. 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-3]
[B-4] [B-5] [B-6] [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-3] [B-4] [B-5] [B-6] [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. as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Banc One Mortgage
Capital Markets, LLC as master servicer and special servicer (the "Master
Servicer" and "Special Servicer", respectively, depending upon the capacity in
which it is acting, each of which terms includes any successor entity under the
Agreement), and Norwest Bank Minnesota, National Association as trustee and
REMIC administrator (the "Trustee" and "REMIC Administrator", respectively,
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 12th day of
such month (or, if such 12th day is not a Business Day, 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-3] [B-4] [B-5] [B-6] [C] Certificates on the applicable Distribution
Date pursuant to the Agreement. The "Determination Date" in each month,
commencing in January, 1999, will be the 7th day of such month or, if such 7th
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
A-4-3
<PAGE>
(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, 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 Master 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
A-4-4
<PAGE>
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 Master 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 (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
A-4-5
<PAGE>
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 three 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 Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master 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 Master 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 Master 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
Master 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 Master 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 Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee and any
Fiscal Agent with the consent of the Holders
A-4-6
<PAGE>
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-4-7
<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 [B-3] [B-4] [B-5] [B-6] [C]
Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By: ___________________________
Authorized Officer
A-4-8
<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-4-9
<PAGE>
EXHIBIT A-5
FORM OF CLASS D CERTIFICATES
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1998-CF2
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.
<TABLE>
<S> <C>
Cut-off Date: December 1, 1998 Percentage Interest evidenced by
this Certificate: ___%
Closing Date: December 3, 1998 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,107,680,439
First Distribution Date: Trustee and REMIC Administrator:
January 13, 1999 Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. D-__
</TABLE>
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 (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., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, 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 ENTITLES THE HOLDER HEREOF ONLY TO CERTAIN ADDITIONAL INTEREST
(IF ANY) RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
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 D 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. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Banc One Mortgage Capital Markets, LLC as master servicer and
special servicer (the "Master Servicer" and "Special Servicer", respectively,
depending upon the capacity in which it is acting, each of which terms includes
any successor entity under the Agreement), and Norwest Bank Minnesota, National
Association as trustee and REMIC administrator (the "Trustee" and "REMIC
Administrator", respectively, 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,
A-5-2
<PAGE>
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 12th day of
such month (or, if such 12th day is not a Business Day, 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 Certificates on the applicable Distribution Date pursuant to the
Agreement. The "Determination Date" in each month, commencing in January, 1999,
will be the 7th day of such month or, if such 7th 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
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
A-5-3
<PAGE>
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
Master 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 Master
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 (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
A-5-4
<PAGE>
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 three 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 Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master 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 Master 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 Master 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
A-5-5
<PAGE>
permits, but does not require, the Master 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.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master 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 Master
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-5-6
<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 D Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By: ___________________________
Authorized Officer
A-5-7
<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-5-8
<PAGE>
EXHIBIT A-6
FORM OF CLASS R-I, CLASS R-II AND CLASS R-III CERTIFICATES
CLASS [R-I], [R-II] AND [R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1998-CF2
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.
<TABLE>
<S> <C>
Cut-off Date: December 1, 1998 Percentage Interest evidenced by
this Certificate: ___%
Closing Date: December 3, 1998 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $1,107,680,439
First Distribution Date: Trustee and REMIC Administrator:
January 13, 1999 Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [R-I] [R-II] [R-III]-__
</TABLE>
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 (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., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, 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 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.
A-6-2
<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 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. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), Banc One Mortgage Capital Markets, LLC as master
servicer and special servicer (the "Master Servicer" and "Special Servicer",
respectively, depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), and Norwest Bank
Minnesota, National Association as trustee and REMIC administrator (the
"Trustee" and "REMIC Administrator", respectively, 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 12th day of
such month (or, if such 12th day is not a Business Day, 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
January, 1999, will be the 7th day of such month or, if such 7th 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
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
A-6-3
<PAGE>
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 Master 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 Master 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 (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
A-6-4
<PAGE>
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.
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
A-6-5
<PAGE>
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".
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 five 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
A-6-6
<PAGE>
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 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 Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master 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 Master 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 Master Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder, at a price determined as
provided in the Agreement, of
A-6-7
<PAGE>
all the Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master 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.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master 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 Master
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-6-8
<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 [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-6-9
<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-6-10
<PAGE>
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE
B-1-1
<PAGE>
Mortgage Loan Schedule
<TABLE>
<CAPTION>
# Property Name Address City
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 Chanin Building 122 East 42nd Street New York
2 250 South Clinton Street (1A) 250 South Clinton Street Syracuse
3 GATX Warehouse (1A) 4472 and 4580 Steelway Boulevard Clay
4 1001 and 1011 Airport Industrial Park (1A) 1001 and 1011 Air Park Drive Swatara
5 Northeast Industrial Park Building # 21 (1A) Route 146 Guilderland
6 507 Plum Street (1A) 507 Plum Street Syracuse
7 Zanesville (1A) 3530 East Pike Zanesville
8 Northeast Industrial Park Building # 8 (1A) Route 146 Guilderland
9 Northeast Industrial Park Building # 22 (1A) Route 146 Guilderland
10 4, 5 & 8 Marway Circle (1A) 4, 5 & 8 Marway Circle Gates
11 Marysville (1A) 16725 Square Drive Marysville
12 One Clinton Square (1A) One Clinton Square Syracuse
13 The Center at Rancho Niguel (1B) 28121-28141 Crown Valley Parkway &
28201-28251 Crown Valley Parkway Laguna Niguel
14 The Edwards Center at Rancho Niguel (1B) 25461-25471 Rancho Niguel Road Laguna Niguel
15 Rivertree Court Shopping Center (1C) 701 N. Milwaukee Avenue Vernon Hills
16 Woodland Heights Shopping Center (1C) 225 Irving Park Road Streamwood
17 Winnetka Commons Shopping Center (1C) 3540 Winnetka Avenue North New Hope
18 Berwyn Plaza Shopping Center (1C) 6901 West Ogden Avenue Berwyn
19 Walgreen's Store (1C) 331 North Irving Woodstock
20 Heritage Pointe 10018 Holly Lane Des Plaines
21 Best Western Inn of Chicago 162 East Ohio Street Chicago
22 Christiana Hilton Inn - Newark, DE 100 Continental Drive Newark
23 Embassy Crossing (2) 9570 U.S. Highway 19 Port Richey
24 Jefferson at Treetops Apartments 5217 Old Spicewood Springs Road Austin
25 Dominion Tower & Parking Garage 1400 NW 10th Avenue Miami
26 Holiday Inn Hurstbourne 1325 South Hurstbourne Parkway Louisville
27 Blue Ash Portfolio (1D) 10925 Reed Hartman Highway Blue Ash
28 Springdale Office Center (1D) 230, 260 & 270 Northland Blvd. Springdale
29 Executive Center East (1D) 4030 Mt. Carmel Tobasco Road Union Township
30 McDonald's (1D) 5055 Old Taylor Mill Road Taylor Mill
31 11 Park Place 11 Park Place New York
32 Twin Creek Apartments 1111 James Donlon Boulevard Antioch
33 Storage Box / Stowaway Storage (1E) 810 Jimmy Ann Drive / 3742 Nova Road Daytona Beach / Port Orange
34 Maplewood Mobile Estates (1E) 5608 Newman Drive Port Orange
35 Corporate Office Park 4900-4970 Corporate Drive Huntsville
36 Knights Bridge II Apartments 4000 Greencastle Road Silver Spring
37 Preston Stonebrooke Shopping Center SWC of Preston Road & Stonebrooke Parkway Frisco
38 Run in Foods DP #4 (1F) 1551 Florida State Route 559 Polk City
39 Run in Foods DP #7 (1F) 29502 Florida State Route 52 San Antonio
40 Run in Foods #401 (1F) 11511 North U.S. Highway 301 Thonotosassa
41 Run in Foods #406 (1F) 4911 N. 110th Avenue Pinellas Park
42 Run in Foods #402 (1F) 3002 North U.S. Highway 301 Tampa
43 Run in Foods #403 (1F) 401 East Sligh Avenue Tampa
44 Run in Foods #404 (1F) 18226 Powell Road Brooksville
45 Run in Foods #410 (1F) 6513 W. 14th Street Bradenton
46 Super 8-Midtown (1G) 2500 University Boulevard Albuquerque
47 Super 8-East (1G) 450 Paisano Street Albuquerque
48 Super 8-West (1G) 6030 Iliff Road Albuquerque
49 Wellington Woods & Lakes 136 Wellington Lakes Drive &
1704 Lafayette Boulevard Fredericksburg
50 Hampton Inn - Indianapolis, IN 105 S. Meridian Street Indianapolis
51 Chidlaw Building 2221 E. Bijou Street Colorado Springs
52 Grandview Garden Apartments 1500 S. Waterford Drive Florissant
53 Cornerstone Office Park 1289-1335 S. Linden Road Flint Township
54 160 Pine Street 160 Pine Street San Francisco
55 River Run Apartments 141 Old Orange Park Road Orange Park
56 180 N. Michigan Avenue Office Building 180 N. Michigan Avenue Chicago
57 Oak Hills Apartments 1913 Estrada Parkway Drive Irving
58 145 Rosemary Street 145 Rosemary Street Needham
59 Holiday Inn - Metroplex-Youngstown, OH 1620 Motor Inn Drive Youngstown
60 MCOM Building 1045 Firestone Parkway Nashville
61 Mayport Trace Apartments 2160 Mayport Road Jacksonville
62 Mercantile Bank Building 800 SW Jackson Street Topeka
63 Brook Forest Apartments 3300-3400 169th Street Hammond
64 Midfield Shopping Center 201 Midfield Street Midfield/Birmingham
65 Far East Plaza 727 North Broadway Los Angeles
66 Highland Square Shopping Center 2010 S. Caraway Road Jonesboro
67 Spanish Villa Apartments 10611 Abercorn Extension Savannah
68 Greens Corner Shopping Center (3) 4975 Jimmy Carter Boulevard Atlanta
69 Mountain Ridge Apartments 2626 Duncanville Road Dallas
70 Radisson Suites - Huntsville, AL 6000 S. Memorial Parkway Huntsville
71 Holiday Campground 10000 Park Boulevard Seminole
72 Plantation Meadows Apartments 7221 NW 16th Street Plantation
73 Gresham Townhomes 21051 Gresham Street Canoga Park
74 Lakewood Apartments 2121 Stone Lake Woodstock
75 Imperial Plaza Shopping Center 303-319 Havendale Boulevard Auburndale
76 Super 8 - Las Vegas, NV 4250 Koval Lane Las Vegas
<PAGE>
<CAPTION>
Original
Zip Principal Cut-Off Date
# Property Name County State Code Balance Balance (6)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Chanin Building New York NY 10168 $ 75,000,000 $ 74,732,033
2 250 South Clinton Street (1A) Onondaga NY 13202 16,560,000 16,547,710
3 GATX Warehouse (1A) Onondaga NY 13080 11,120,000 11,111,747
4 1001 and 1011 Airport Industrial Park (1A) Dauphin PA 17057 7,280,000 7,274,597
5 Northeast Industrial Park Building # 21 (1A) Albany NY 12084 5,280,000 5,276,081
6 507 Plum Street (1A) Onondaga NY 13204 5,200,000 5,196,141
7 Zanesville (1A) Muskingum OH 43701 4,600,000 4,596,586
8 Northeast Industrial Park Building # 8 (1A) Albany NY 12084 4,320,000 4,316,794
9 Northeast Industrial Park Building # 22 (1A) Albany NY 12084 3,680,000 3,677,269
10 4, 5 & 8 Marway Circle (1A) Monroe NY 14624 3,540,000 3,537,373
11 Marysville (1A) Union OH 43040 2,240,000 2,238,338
12 One Clinton Square (1A) Onondaga NY 13202 1,680,000 1,678,753
13 The Center at Rancho Niguel (1B) Orange CA 92677 23,000,000 22,979,767
14 The Edwards Center at Rancho Niguel (1B) Orange CA 92677 5,700,000 5,694,986
15 Rivertree Court Shopping Center (1C) Lake IL 60061 18,190,000 18,190,000
16 Woodland Heights Shopping Center (1C) Cook IL 60107 3,100,000 3,100,000
17 Winnetka Commons Shopping Center (1C) Hennepin MN 55427 2,375,000 2,375,000
18 Berwyn Plaza Shopping Center (1C) Cook IL 60402 740,000 740,000
19 Walgreen's Store (1C) McHenry IL 60098 595,000 595,000
20 Heritage Pointe Cook IL 60016 25,000,000 24,982,355
21 Best Western Inn of Chicago Cook IL 60611 22,000,000 21,883,901
22 Christiana Hilton Inn - Newark, DE New Castle DE 19713 21,500,000 21,450,788
23 Embassy Crossing (2) Pasco FL 34668 20,000,000 20,000,000
24 Jefferson at Treetops Apartments Travis TX 78759 19,600,000 19,540,212
25 Dominion Tower & Parking Garage Dade FL 33128 18,700,000 18,600,917
26 Holiday Inn Hurstbourne Jefferson KY 40222 18,500,000 18,402,920
27 Blue Ash Portfolio (1D) Hamilton OH 45242 10,839,000 10,814,420
28 Springdale Office Center (1D) Hamilton OH 45246 3,766,000 3,757,460
29 Executive Center East (1D) Clermont OH 45255 1,120,000 1,117,460
30 McDonald's (1D) Kenton KY 41015 275,000 274,376
31 11 Park Place New York NY 10007 15,000,000 14,946,276
32 Twin Creek Apartments Contra Costa CA 94509 12,800,000 12,752,406
33 Storage Box / Stowaway Storage (1E) Volusia FL 32119 6,160,000 6,133,110
34 Maplewood Mobile Estates (1E) Volusia FL 32127 5,840,000 5,822,523
35 Corporate Office Park Madison AL 35804 11,300,000 11,222,769
36 Knights Bridge II Apartments Montgomery MD 20866 9,650,000 9,615,263
37 Preston Stonebrooke Shopping Center Collin TX 75034 8,900,000 8,885,682
38 Run in Foods DP #4 (1F) Polk FL 33868 2,604,000 2,576,894
39 Run in Foods DP #7 (1F) Pasco FL 33576 2,429,000 2,403,716
40 Run in Foods #401 (1F) Hillsborough FL 33592 882,000 872,819
41 Run in Foods #406 (1F) Pinellas FL 33609 859,675 850,726
42 Run in Foods #402 (1F) Hillsborough FL 33619 782,000 773,860
43 Run in Foods #403 (1F) Hillsborough FL 33604 632,000 625,421
44 Run in Foods #404 (1F) Hernando FL 33609 443,850 439,230
45 Run in Foods #410 (1F) Manatee FL 34207 67,475 66,773
46 Super 8-Midtown (1G) Bernalillo NM 87107 5,800,000 5,778,801
47 Super 8-East (1G) Bernalillo NM 87123 1,600,000 1,594,152
48 Super 8-West (1G) Bernalillo NM 87121 1,200,000 1,195,614
49 Wellington Woods & Lakes N/A VA 22401 8,200,000 8,163,754
50 Hampton Inn - Indianapolis, IN Marion IN 46225 8,050,000 8,007,182
51 Chidlaw Building El Paso CO 80909 8,000,000 7,977,577
52 Grandview Garden Apartments St. Louis MO 63033 7,750,000 7,732,025
53 Cornerstone Office Park Genesee MI 48532 7,500,000 7,493,668
54 160 Pine Street San Francisco CA 94111 7,500,000 7,483,711
55 River Run Apartments Clay FL 32073 7,500,000 7,466,848
56 180 N. Michigan Avenue Office Building Cook IL 60601 7,300,000 7,279,388
57 Oak Hills Apartments Dallas TX 75061 7,240,000 7,198,183
58 145 Rosemary Street Norfolk MA 02194 7,000,000 6,983,919
59 Holiday Inn - Metroplex-Youngstown, OH Trumbull OH 44420 7,000,000 6,977,499
60 MCOM Building Davidson TN 37086 6,900,000 6,836,759
61 Mayport Trace Apartments Duval FL 32233 6,800,000 6,790,078
62 Mercantile Bank Building Shawnee KS 66612 6,800,000 6,776,289
63 Brook Forest Apartments Lake IN 46323 6,600,000 6,581,227
64 Midfield Shopping Center Jefferson AL 35228 6,500,000 6,489,738
65 Far East Plaza Los Angeles CA 90012 6,500,000 6,484,764
66 Highland Square Shopping Center Craighead AR 72401 6,350,000 6,336,379
67 Spanish Villa Apartments Chatham GA 31419 6,300,000 6,284,400
68 Greens Corner Shopping Center (3) Gwinnett GA 30093 6,240,000 6,240,000
69 Mountain Ridge Apartments Dallas TX 75211 6,200,000 6,178,732
70 Radisson Suites - Huntsville, AL Madison AL 35802 6,050,000 6,012,231
71 Holiday Campground Pinellas FL 33777 6,000,000 5,981,166
72 Plantation Meadows Apartments Broward FL 33313 5,850,000 5,832,325
73 Gresham Townhomes Los Angeles CA 91306 5,650,000 5,624,359
74 Lakewood Apartments McHenry IL 60098 5,600,000 5,584,071
75 Imperial Plaza Shopping Center Polk FL 33823 5,393,936 5,389,365
76 Super 8 - Las Vegas, NV Clark NV 89109 5,400,000 5,380,263
<PAGE>
<CAPTION>
Original Remaining Original Remaining
Term To Term To Amorti- Amorti-
Maturity Maturity zation zation
Monthly Mortgage (months) (months) Maturity Term Term
# Property Name Payment Rate (7) (7) Date (months) (months)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 Chanin Building $ 526,739.98 6.930% 120 117 06/01/22 300 297
2 250 South Clinton Street (1A) 115,789.92 7.500% 120 119 11/01/08 360 359
3 GATX Warehouse (1A) 77,752.65 7.500% 120 119 11/01/08 360 359
4 1001 and 1011 Airport Industrial Park (1A) 50,902.82 7.500% 120 119 11/01/08 360 359
5 Northeast Industrial Park Building # 21 (1A) 36,918.53 7.500% 120 119 11/01/08 360 359
6 507 Plum Street (1A) 36,359.15 7.500% 120 119 11/01/08 360 359
7 Zanesville (1A) 32,163.87 7.500% 120 119 11/01/08 360 359
8 Northeast Industrial Park Building # 8 (1A) 30,206.07 7.500% 120 119 11/01/08 360 359
9 Northeast Industrial Park Building # 22 (1A) 25,731.09 7.500% 120 119 11/01/08 360 359
10 4, 5 & 8 Marway Circle (1A) 24,752.19 7.500% 120 119 11/01/08 360 359
11 Marysville (1A) 15,662.40 7.500% 120 119 11/01/08 360 359
12 One Clinton Square (1A) 11,746.80 7.500% 120 119 11/01/08 360 359
13 The Center at Rancho Niguel (1B) 147,499.71 6.640% 120 119 11/01/08 360 359
14 The Edwards Center at Rancho Niguel (1B) 36,554.28 6.640% 120 119 11/01/08 360 359
15 Rivertree Court Shopping Center (1C) 109,645.28 7.000% 120 119 11/01/08 IO IO
16 Woodland Heights Shopping Center (1C) 18,686.11 7.000% 120 119 11/01/08 IO IO
17 Winnetka Commons Shopping Center (1C) 14,315.97 7.000% 120 119 11/01/08 IO IO
18 Berwyn Plaza Shopping Center (1C) 4,460.56 7.000% 120 119 11/01/08 IO IO
19 Walgreen's Store (1C) 3,586.53 7.000% 120 119 11/01/08 IO IO
20 Heritage Pointe 179,103.06 7.750% 120 119 11/01/08 360 359
21 Best Western Inn of Chicago 176,558.50 7.450% 120 117 09/01/18 240 237
22 Christiana Hilton Inn - Newark, DE 151,683.33 6.980% 120 118 10/01/23 300 298
23 Embassy Crossing (2) 137,109.41 7.090% 120 116 08/01/08 336 336
24 Jefferson at Treetops Apartments 127,907.92 6.810% 120 116 08/01/08 360 356
25 Dominion Tower & Parking Garage 136,251.07 7.340% 120 115 07/01/08 300 295
26 Holiday Inn Hurstbourne 135,392.43 7.390% 120 115 07/01/23 300 295
27 Blue Ash Portfolio (1D) 72,257.78 7.020% 120 117 09/01/08 360 357
28 Springdale Office Center (1D) 25,105.90 7.020% 120 117 09/01/08 360 357
29 Executive Center East (1D) 7,466.44 7.020% 120 117 09/01/08 360 357
30 McDonald's (1D) 1,833.28 7.020% 120 117 09/01/08 360 357
31 11 Park Place 99,493.34 6.970% 120 115 07/01/08 360 355
32 Twin Creek Apartments 83,617.02 6.820% 120 115 07/01/08 360 355
33 Storage Box / Stowaway Storage (1E) 44,604.31 7.270% 120 116 08/01/08 300 296
34 Maplewood Mobile Estates (1E) 38,423.19 6.890% 120 116 08/01/08 360 356
35 Corporate Office Park 79,864.12 7.610% 120 110 01/31/08 360 350
36 Knights Bridge II Apartments 63,877.97 6.950% 120 115 07/01/08 360 355
37 Preston Stonebrooke Shopping Center 56,605.70 6.560% 120 118 10/01/08 360 358
38 Run in Foods DP #4 (1F) 22,631.09 8.520% 120 113 05/01/08 240 233
39 Run in Foods DP #7 (1F) 21,110.18 8.520% 120 113 05/01/08 240 233
40 Run in Foods #401 (1F) 7,665.37 8.520% 120 113 05/01/08 240 233
41 Run in Foods #406 (1F) 7,471.34 8.520% 120 113 05/01/08 240 233
42 Run in Foods #402 (1F) 6,796.28 8.520% 120 113 05/01/08 240 233
43 Run in Foods #403 (1F) 5,492.65 8.520% 120 113 05/01/08 240 233
44 Run in Foods #404 (1F) 3,857.45 8.520% 120 113 05/01/08 240 233
45 Run in Foods #410 (1F) 586.42 8.520% 120 113 05/01/08 240 233
46 Super 8-Midtown (1G) 44,967.34 7.000% 240 238 10/01/18 240 238
47 Super 8-East (1G) 12,404.78 7.000% 240 238 10/01/18 240 238
48 Super 8-West (1G) 9,303.59 7.000% 240 238 10/01/18 240 238
49 Wellington Woods & Lakes 54,444.71 6.980% 120 114 06/01/08 360 354
50 Hampton Inn - Indianapolis, IN 58,549.49 7.320% 120 115 07/01/23 300 295
51 Chidlaw Building 54,086.60 7.160% 120 116 08/01/08 360 356
52 Grandview Garden Apartments 51,145.23 6.920% 180 177 09/01/13 360 357
53 Cornerstone Office Park 49,144.44 6.850% 120 119 11/01/08 360 359
54 160 Pine Street 50,959.90 7.210% 120 117 09/01/08 360 357
55 River Run Apartments 49,796.99 6.980% 120 114 06/01/08 360 354
56 180 N. Michigan Avenue Office Building 49,206.09 7.130% 120 116 08/01/08 360 356
57 Oak Hills Apartments 54,799.42 8.330% 84 74 02/01/05 360 350
58 145 Rosemary Street 49,296.07 6.960% 120 118 10/01/08 300 298
59 Holiday Inn - Metroplex-Youngstown, OH 51,866.06 7.530% 120 117 09/01/23 300 297
60 MCOM Building 55,501.58 7.480% 240 235 07/01/18 240 235
61 Mayport Trace Apartments 45,103.65 6.970% 120 118 10/01/08 360 358
62 Mercantile Bank Building 48,365.07 7.070% 120 117 09/01/08 300 297
63 Brook Forest Apartments 44,354.11 7.100% 120 116 08/01/08 360 356
64 Midfield Shopping Center 41,684.70 6.640% 120 118 10/01/08 360 358
65 Far East Plaza 45,320.55 6.850% 180 178 10/01/13 300 298
66 Highland Square Shopping Center 46,226.03 7.330% 120 118 10/01/08 300 298
67 Spanish Villa Apartments 44,527.09 7.000% 300 298 10/01/23 300 298
68 Greens Corner Shopping Center (3) 43,856.09 7.350% 120 115 07/01/08 336 336
69 Mountain Ridge Apartments 41,833.34 7.140% 120 115 07/01/08 360 355
70 Radisson Suites - Huntsville, AL 53,738.48 6.810% 180 178 10/01/13 180 178
71 Holiday Campground 41,870.73 7.480% 120 115 07/01/08 360 355
72 Plantation Meadows Apartments 38,332.66 6.850% 120 116 08/01/08 360 356
73 Gresham Townhomes 37,097.60 6.870% 120 114 06/01/08 360 354
74 Lakewood Apartments 37,633.79 7.100% 120 116 08/01/08 360 356
75 Imperial Plaza Shopping Center 36,035.41 7.000% 115 114 06/01/08 355 354
76 Super 8 - Las Vegas, NV 41,866.14 7.000% 240 238 10/01/18 240 238
<PAGE>
<CAPTION>
Fee Simple/
# Property Name ARD(8) Defeasance Leasehold
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 Chanin Building 09/01/08 L (2), D (7.5), O (0.5) Leasehold
2 250 South Clinton Street (1A) L (2), D (7.5), O (0.5) Fee/Leasehold
3 GATX Warehouse (1A) L (2), D (7.5), O (0.5) Fee
4 1001 and 1011 Airport Industrial Park (1A) L (2), D (7.5), O (0.5) Fee
5 Northeast Industrial Park Building # 21 (1A) L (2), D (7.5), O (0.5) Fee
6 507 Plum Street (1A) L (2), D (7.5), O (0.5) Fee/Leasehold
7 Zanesville (1A) L (2), D (7.5), O (0.5) Fee
8 Northeast Industrial Park Building # 8 (1A) L (2), D (7.5), O (0.5) Fee
9 Northeast Industrial Park Building # 22 (1A) L (2), D (7.5), O (0.5) Fee
10 4, 5 & 8 Marway Circle (1A) L (2), D (7.5), O (0.5) Fee
11 Marysville (1A) L (2), D (7.5), O (0.5) Fee
12 One Clinton Square (1A) L (2), D (7.5), O (0.5) Fee
13 The Center at Rancho Niguel (1B) L (2), D (7.5), O (0.5) Fee
14 The Edwards Center at Rancho Niguel (1B) L (2), D (7.5), O (0.5) Fee
15 Rivertree Court Shopping Center (1C) L (2), D (7.5), O (0.5) Fee
16 Woodland Heights Shopping Center (1C) L (2), D (7.5), O (0.5) Fee
17 Winnetka Commons Shopping Center (1C) L (2), D (7.5), O (0.5) Fee
18 Berwyn Plaza Shopping Center (1C) L (2), D (7.5), O (0.5) Fee
19 Walgreen's Store (1C) L (2), D (7.5), O (0.5) Fee
20 Heritage Pointe L (2), D (7.5), O (0.5) Fee
21 Best Western Inn of Chicago 09/01/08 L (2), D (7.5), O (0.5) Fee
22 Christiana Hilton Inn - Newark, DE 10/01/08 L (2), D (7.5), O (0.5) Fee
23 Embassy Crossing (2) L (2), D (7.5), O (0.5) Fee
24 Jefferson at Treetops Apartments L (3), D (6.5), O (0.5) Fee
25 Dominion Tower & Parking Garage L (2), D (7.5), O (0.5) Fee
26 Holiday Inn Hurstbourne 07/01/08 L (2), D (7.5), O (0.5) Fee
27 Blue Ash Portfolio (1D) L (2), D (7.5), O (0.5) Fee
28 Springdale Office Center (1D) L (2), D (7.5), O (0.5) Fee
29 Executive Center East (1D) L (2), D (7.5), O (0.5) Fee
30 McDonald's (1D) L (2), D (7.5), O (0.5) Fee
31 11 Park Place L (2), D (7.5), O (0.5) Fee
32 Twin Creek Apartments L (2), D (7.5), O (0.5) Fee
33 Storage Box / Stowaway Storage (1E) L (2), D (7.5), O (0.5) Fee
34 Maplewood Mobile Estates (1E) L (2), D (7.5), O (0.5) Fee
35 Corporate Office Park L (3), D (7) Fee
36 Knights Bridge II Apartments No Fee
37 Preston Stonebrooke Shopping Center L (2), D (7.5), O (0.5) Fee
38 Run in Foods DP #4 (1F) L (2.92), D (6.5), O (0.58) Fee
39 Run in Foods DP #7 (1F) L (2.92), D (6.5), O (0.58) Fee
40 Run in Foods #401 (1F) L (2.92), D (6.5), O (0.58) Fee
41 Run in Foods #406 (1F) L (2.92), D (6.5), O (0.58) Fee
42 Run in Foods #402 (1F) L (2.92), D (6.5), O (0.58) Fee
43 Run in Foods #403 (1F) L (2.92), D (6.5), O (0.58) Fee
44 Run in Foods #404 (1F) L (2.92), D (6.5), O (0.58) Fee
45 Run in Foods #410 (1F) L (2.92), D (6.5), O (0.58) Leasehold
46 Super 8-Midtown (1G) L (3), D (16.42), O (0.58) Fee
47 Super 8-East (1G) L (3), D (16.42), O (0.58) Fee
48 Super 8-West (1G) L (3), D (16.42), O (0.58) Fee
49 Wellington Woods & Lakes L (2), D (3), YM 1% (4.42), O (0.58) Fee
50 Hampton Inn - Indianapolis, IN 07/01/98 L (2), D (7.5), O (0.5) Fee
51 Chidlaw Building L (2), D (7.5), O (0.5) Fee
52 Grandview Garden Apartments L (3), D (11.5), O (0.5) Fee
53 Cornerstone Office Park L (2), D (7.5), O (0.5) Fee
54 160 Pine Street L (2), D (7.5), O (0.5) Fee
55 River Run Apartments L (2), D (3), YM 1% (4.42), O (0.58) Fee
56 180 N. Michigan Avenue Office Building L (2), D (7.5), O (0.5) Fee
57 Oak Hills Apartments No Fee
58 145 Rosemary Street L (2), D (7.5), O (0.5) Fee
59 Holiday Inn - Metroplex-Youngstown, OH 09/01/98 L (2), D (7.5), O (0.5) Fee
60 MCOM Building L (2), D (17.5), O (0.5) Fee
61 Mayport Trace Apartments L (2), D (7.5), O (0.5) Fee
62 Mercantile Bank Building L (2), D (7.5), O (0.5) Fee
63 Brook Forest Apartments L (2), D (7.5), O (0.5) Fee
64 Midfield Shopping Center L (2), D (7.5), O (0.5) Fee
65 Far East Plaza L (2), D (12.5), O (0.5) Fee
66 Highland Square Shopping Center L (2), D (7.5), O (0.5) Fee
67 Spanish Villa Apartments L (2), D (22.5), O (0.5) Fee
68 Greens Corner Shopping Center (3) L (2), D (7.5), O (0.5) Fee
69 Mountain Ridge Apartments L (2), D (7.5), O (0.5) Fee
70 Radisson Suites - Huntsville, AL L (2), D (12.5), O (0.5) Fee
71 Holiday Campground L (2), D (7.5), O (0.5) Fee
72 Plantation Meadows Apartments L (2), D (7.5), O (0.5) Fee
73 Gresham Townhomes L (2), D (7.5), O (0.5) Fee
74 Lakewood Apartments L (2), D (7.5), O (0.5) Fee
75 Imperial Plaza Shopping Center No Fee
76 Super 8 - Las Vegas, NV L (3), D (16.42), O (0.58) Fee
<PAGE>
<CAPTION>
Interest
# Property Name Originator Accrual
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 Chanin Building Column Actual/360
2 250 South Clinton Street (1A) Column Actual/360
3 GATX Warehouse (1A) Column Actual/360
4 1001 and 1011 Airport Industrial Park (1A) Column Actual/360
5 Northeast Industrial Park Building # 21 (1A) Column Actual/360
6 507 Plum Street (1A) Column Actual/360
7 Zanesville (1A) Column Actual/360
8 Northeast Industrial Park Building # 8 (1A) Column Actual/360
9 Northeast Industrial Park Building # 22 (1A) Column Actual/360
10 4, 5 & 8 Marway Circle (1A) Column Actual/360
11 Marysville (1A) Column Actual/360
12 One Clinton Square (1A) Column Actual/360
13 The Center at Rancho Niguel (1B) Column Actual/360
14 The Edwards Center at Rancho Niguel (1B) Column Actual/360
15 Rivertree Court Shopping Center (1C) Column Actual/360
16 Woodland Heights Shopping Center (1C) Column Actual/360
17 Winnetka Commons Shopping Center (1C) Column Actual/360
18 Berwyn Plaza Shopping Center (1C) Column Actual/360
19 Walgreen's Store (1C) Column Actual/360
20 Heritage Pointe Column Actual/360
21 Best Western Inn of Chicago Column Actual/360
22 Christiana Hilton Inn - Newark, DE Column Actual/360
23 Embassy Crossing (2) Column Actual/360
24 Jefferson at Treetops Apartments Column Actual/360
25 Dominion Tower & Parking Garage Column Actual/360
26 Holiday Inn Hurstbourne Column Actual/360
27 Blue Ash Portfolio (1D) Column Actual/360
28 Springdale Office Center (1D) Column Actual/360
29 Executive Center East (1D) Column Actual/360
30 McDonald's (1D) Column Actual/360
31 11 Park Place Apple Bank Actual/360
32 Twin Creek Apartments Column Actual/360
33 Storage Box / Stowaway Storage (1E) Union Capital Actual/360
34 Maplewood Mobile Estates (1E) Union Capital Actual/360
35 Corporate Office Park Column Actual/360
36 Knights Bridge II Apartments Column Actual/360
37 Preston Stonebrooke Shopping Center Column Actual/360
38 Run in Foods DP #4 (1F) Column Actual/360
39 Run in Foods DP #7 (1F) Column Actual/360
40 Run in Foods #401 (1F) Column Actual/360
41 Run in Foods #406 (1F) Column Actual/360
42 Run in Foods #402 (1F) Column Actual/360
43 Run in Foods #403 (1F) Column Actual/360
44 Run in Foods #404 (1F) Column Actual/360
45 Run in Foods #410 (1F) Column Actual/360
46 Super 8-Midtown (1G) Column Actual/360
47 Super 8-East (1G) Column Actual/360
48 Super 8-West (1G) Column Actual/360
49 Wellington Woods & Lakes Column Actual/360
50 Hampton Inn - Indianapolis, IN Column Actual/360
51 Chidlaw Building Column Actual/360
52 Grandview Garden Apartments Column Actual/360
53 Cornerstone Office Park Column Actual/360
54 160 Pine Street Column Actual/360
55 River Run Apartments Column Actual/360
56 180 N. Michigan Avenue Office Building Column Actual/360
57 Oak Hills Apartments Column Actual/360
58 145 Rosemary Street Union Capital Actual/360
59 Holiday Inn - Metroplex-Youngstown, OH Column Actual/360
60 MCOM Building Union Capital 30/360
61 Mayport Trace Apartments Column Actual/360
62 Mercantile Bank Building Column Actual/360
63 Brook Forest Apartments Column Actual/360
64 Midfield Shopping Center Column Actual/360
65 Far East Plaza Column Actual/360
66 Highland Square Shopping Center Column Actual/360
67 Spanish Villa Apartments Union Capital 30/360
68 Greens Corner Shopping Center (3) Column Actual/360
69 Mountain Ridge Apartments Column Actual/360
70 Radisson Suites - Huntsville, AL Column Actual/360
71 Holiday Campground Union Capital Actual/360
72 Plantation Meadows Apartments Column Actual/360
73 Gresham Townhomes Column Actual/360
74 Lakewood Apartments Column Actual/360
75 Imperial Plaza Shopping Center Column Actual/360
76 Super 8 - Las Vegas, NV Column Actual/360
</TABLE>
<PAGE>
Mortgage Loan Schedule
<TABLE>
<CAPTION>
# Property Name Address City
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
77 Thunder Hollow 3780 Idlebrook Circle Casselberry
78 K-Mart Montwood Point 11330-60 Montwood Drive El Paso
79 Trabuco Marketplace 21602, 21612 & 21702 Plano
Trabuo Road Rancho Santa Margarita
80 Indian Valley Apartments 3536 Indian Creek Road Clarkston
81 Flamingo West Centre 4850 West Flamingo Road Las Vegas
82 Mill Creek Shopping Center 9 & 50 Market Street South Portland
83 High Vista Apartments 5041 Alabama Street El Paso
84 Woodland Office Center 500 East Calaveras Street Milpitas
85 Bayfair Apartments 16077 Ashland Avenue San Lorenzo
86 University Green Apartments 1620 Bay Area Boulevard Houston
87 El Dorado Mobile Home Estates 4525 West Twain Avenue Las Vegas
88 Holiday Inn - Danbury, CT 80 Newtown Road Danbury
89 Country Inn & Suites Hotel 4880 University Drive Huntsville
90 Center Ridge Apartments 700 West Center Street Duncanville
91 The Marriott Building 509 South Sixth Street Springfield
92 Silicon Valley Inn 690 N. Mathilda Avenue Sunnyvale
93 Best Western - Sunnyvale 940 W. Weddell Drive Sunnyvale
94 Golden Valley Commons 7700 Olson Memorial Highway Golden Valley
95 West Park Place 7400 West Greenfield Avenue West Allis
96 Naperville Office Court 1801-1813 N. Mill Street Naperville
97 Holiday Inn Express Hotel &
Suites - Mountain View, CA 93 El Camino Real (SR 82) Mountain View
98 Best Buy / Drug Emporium 1580 Southlake Parkway Morrow
99 Medical Arts Building 1307 8th Avenue Fort Worth
100 Comfort Inn - Sunnyvale 595 N. Mathilda Avenue Sunnyvale
101 Holiday Inn North Denver 4849 Bannock Street Denver
102 Windlands Shopping Center (4) 3760 Nolensville Pike Nashville
103 Northborough Woods Apartments 13502 Northborough Drive Houston
104 Madison Building 412 Madison Street Tampa
105 Victory Townhomes 22301 Victory Boulevard Woodland Hills
106 Dairy Plaza Shopping Center 1527-1561 N. Singleton Avenue Titusville
107 Comfort Inn - Concord, NH 71 Hall Street Concord
108 Peconic Plaza North Side of Old Country
Road (Route 58) Riverhead
109 Bayou Village Place Apartments 6310 Dumfries Drive Houston
110 Country Suites - Chattanooga, TN 7051 McCutcheon Road Chattanooga
111 531 West Deming 531 West Deming Chicago
112 Camelot Apartments 2906 Washtenaw Avenue Ypsilanti Township
113 Sevilla Apartments 1455 North Perry Road Carrollton
114 The Way III Apartments 5301 Marvin D. Love Freeway Dallas
115 Glenview Office and Industrial Park 1800-1884 Johns Drive Glenview
116 Hampton Inn - Decatur, AL 2041 Beltline Road Decatur
117 Mission Industrial Park (1H) 4748 Mission Boulevard Ontario
118 Jurupa Business Park (1H) 7101 Jurupa Avenue Riverside
119 Colony Square Shopping Center 3074 Ross Clark Circle Dothan
120 Vintage Business Park 3000 Vintage Drive,
3017-3025 Clinton Drive Juneau
121 Crossroads Shopping Center US Highway 52 Darlington
122 High Country Plaza 15817 Bernardo Center Drive San Diego
123 Glencoe Avenue Industrial 4040 Del Rey Avenue and
4051 Glencoe Avenue Los Angeles
124 St. Charles Apartments (1I) 1034 Elm Avenue Americus
125 St. James Apartments (1I) 1008 E. 24th Avenue Cordele
126 Plaza at Sunrise SWC Ramon Road & Sunrise Way Palm Springs
127 Shannon Arms III Apartments 9029 Jamacha Road Spring Valley
128 River Valley Square Shopping Center NWC Telegraph Rd. & Lorain St. Monroe
129 Rio Commercial Center 779-895 NE Dixie Highway Jensen Beach
130 Alexis Apartment Complex 3500 Foothills Road Las Cruces
131 Beltway Plaza 4710 4710 Auth Place Camp Springs
132 Casa Linda MHP 5250 E. Lake Mead Boulevard Las Vegas
133 Mesa Ridge Apartments 8000 Creek Bend Drive Houston
134 Vintage Business Park II 3030-3032 Vintage Drive Juneau
135 Mountain Village Shopping Center 749 E. Main Street Jefferson
136 Rock River Tower Apartments 913 Main Street Rockford
137 Durango Plaza Retail Center 4420-4450 South Durango Drive Las Vegas
138 Beatrice Avenue Industrial 12636 Beatrice Street Los Angeles
139 Miller Apartments 2335 Stuart Avenue Albany
140 University Square Outlet Mall 816 College Road Wilmington
141 Ridgewood Plaza SWC Ridge Rd. & Manor Ave. Munster
142 Chase Village Apartments 8028 Gessner Drive Austin
143 Warsaw Village Shopping Center US Highway 360 Warsaw
144 Provident Place Office Building 2220 San Jacinto Blvd. Denton
145 920 S. Waukegan Road 920 S. Waukegan Road Lake Forest
146 Amberley Suite Hotel 807 Bank St. Decatur
147 Rite-Aid of Maine, Inc. (5) 37 Portland Street--U.S. Route 1 Kennebunk
148 Stuart Towne Apartments 1901 Old Shell Road Port Royal
149 Santa Ana Villa 2204 North Peach Avenue Clovis
150 Orland Park Outlots 9310-9396 159th Street Orland Park
151 Brazos Square Shopping Center 120 State Highway 332 Lake Jackson
152 Community Mall Route 37 West Toms River
153 Comfort Inn - Fife, WA 5601 Pacific Highway East Fife
<PAGE>
<CAPTION>
Original
Zip Principal Cut-off Date
# Property Name County State Code Balance Balance(6)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
77 Thunder Hollow Seminole FL 32707 5,400,000 5,376,131
78 K-Mart Montwood Point El Paso TX 79936 5,250,000 5,226,550
79 Trabuco Marketplace Orange CA 92679 5,200,000 5,191,635
80 Indian Valley Apartments Dekalb GA 30021 5,200,000 5,184,735
81 Flamingo West Centre Clark NV 89103 5,200,000 5,182,026
82 Mill Creek Shopping Center Cumberland ME 04112 5,200,000 5,156,062
83 High Vista Apartments El Paso TX 79930 5,100,000 5,088,408
84 Woodland Office Center Santa Clara CA 95035 5,100,000 5,081,203
85 Bayfair Apartments Alameda CA 94502 5,100,000 5,078,525
86 University Green Apartments Harris TX 77058 5,000,000 4,992,290
87 El Dorado Mobile Home Estates Clark NV 89103 5,000,000 4,987,467
88 Holiday Inn - Danbury, CT Fairfield CT 06810 5,000,000 4,979,134
89 Country Inn & Suites Hotel Madison AL 35816 5,000,000 4,968,786
90 Center Ridge Apartments Dallas TX 75116 4,816,000 4,795,622
91 The Marriott Building Sangamon IL 62701 4,800,000 4,779,387
92 Silicon Valley Inn Santa Clara CA 94086 4,700,000 4,694,503
93 Best Western - Sunnyvale Santa Clara CA 94089 4,600,000 4,594,723
94 Golden Valley Commons Hennepin MN 55427 4,550,000 4,543,457
95 West Park Place Milwaukee WI 53214 4,500,000 4,483,613
96 Naperville Office Court DuPage IL 60563 4,500,000 4,484,524
97 Holiday Inn Express Hotel &
Suites - Mountain View, CA Santa Clara CA 94040 4,400,000 4,384,751
98 Best Buy / Drug Emporium Clayton GA 30260 4,230,000 4,211,500
99 Medical Arts Building Tarrant TX 76104 4,150,000 4,136,799
100 Comfort Inn - Sunnyvale Santa Clara CA 94086 4,100,000 4,095,296
101 Holiday Inn North Denver Denver CO 80216 4,100,000 4,079,752
102 Windlands Shopping Center (4) Davidson TN 37211 3,900,000 3,900,000
103 Northborough Woods Apartments Harris TX 77067 3,900,000 3,880,220
104 Madison Building Hillsborough FL 33602 3,850,000 3,829,125
105 Victory Townhomes Los Angeles CA 91303 3,850,000 3,833,023
106 Dairy Plaza Shopping Center Brevard FL 32796 3,760,000 3,743,186
107 Comfort Inn - Concord, NH Merrimack NH 03301 3,750,000 3,741,417
108 Peconic Plaza Suffolk NY 11901 3,675,000 3,662,519
109 Bayou Village Place Apartments Harris TX 77096 3,600,000 3,594,772
110 Country Suites - Chattanooga, TN Hamilton TN 37421 3,550,000 3,542,357
111 531 West Deming Cook IL 60614 3,500,000 3,494,642
112 Camelot Apartments Washtenaw MI 48197 3,500,000 3,487,684
113 Sevilla Apartments Dallas TX 75006 3,500,000 3,484,678
114 The Way III Apartments Dallas TX 75232 3,500,000 3,480,251
115 Glenview Office and Industrial Park Cook IL 60025 3,460,000 3,454,690
116 Hampton Inn - Decatur, AL Morgan AL 35601 3,450,000 3,428,463
117 Mission Industrial Park (1H) San Bernardino CA 91762 1,850,000 1,847,624
118 Jurupa Business Park (1H) Riverside CA 92504 1,545,000 1,542,864
119 Colony Square Shopping Center Houston AL 36301 3,400,000 3,388,493
120 Vintage Business Park Juneau AK 99801 3,400,000 3,381,424
121 Crossroads Shopping Center Darlington SC 29532 3,225,000 3,203,312
122 High Country Plaza San Diego CA 92127 3,200,000 3,197,320
123 Glencoe Avenue Industrial Los Angeles CA 90292 3,200,000 3,195,319
124 St. Charles Apartments (1I) Sumter GA 31709 1,595,000 1,588,971
125 St. James Apartments (1I) Crisp GA 31015 1,595,000 1,588,971
126 Plaza at Sunrise Riverside CA 92264 3,050,000 3,036,512
127 Shannon Arms III Apartments San Diego CA 91977 3,050,000 3,036,744
128 River Valley Square Shopping Center Monroe MI 48162 2,975,000 2,964,951
129 Rio Commercial Center Martin FL 34957 2,962,500 2,952,134
130 Alexis Apartment Complex Dona Ana NM 88011 2,950,000 2,939,984
131 Beltway Plaza 4710 Prince George MD 20746 2,925,000 2,918,412
132 Casa Linda MHP Clark NV 89114 2,880,000 2,876,077
133 Mesa Ridge Apartments Harris TX 77071 2,850,000 2,843,795
134 Vintage Business Park II Juneau AK 99801 2,850,000 2,842,693
135 Mountain Village Shopping Center Ashe NC 28640 2,850,000 2,834,250
136 Rock River Tower Apartments Winnebago IL 61103 2,800,000 2,795,314
137 Durango Plaza Retail Center Clark NV 89117 2,800,000 2,793,858
138 Beatrice Avenue Industrial Los Angeles CA 90066 2,750,000 2,740,791
139 Miller Apartments Dougherty GA 31707 2,715,000 2,712,775
140 University Square Outlet Mall New Hanover NC 28402 2,700,000 2,696,587
141 Ridgewood Plaza Lake IN 46321 2,700,000 2,692,339
142 Chase Village Apartments Travis TX 78753 2,700,000 2,691,090
143 Warsaw Village Shopping Center Richmond VA 22572 2,650,000 2,646,461
144 Provident Place Office Building Denton TX 76205 2,650,000 2,645,982
145 920 S. Waukegan Road Lake IL 60045 2,650,000 2,643,121
146 Amberley Suite Hotel Morgan AL 35601 2,650,000 2,633,457
147 Rite-Aid of Maine, Inc. (5) York ME 04043 2,625,000 2,608,053
148 Stuart Towne Apartments Beaufort SC 29935 2,600,000 2,578,376
149 Santa Ana Villa Fresno CA 93612 2,550,000 2,546,021
150 Orland Park Outlots Cook IL 60462 2,500,000 2,489,830
151 Brazos Square Shopping Center Brazoria TX 77566 2,500,000 2,488,424
152 Community Mall Ocean NJ 08753 2,500,000 2,467,051
153 Comfort Inn - Fife, WA Pierce WA 98424 2,450,000 2,444,911
<PAGE>
<CAPTION>
Orig-
Original Remaining inal Remaining
Term to Term to Amorti- Amorti-
Maturity Maturity zation zation
Monthly Mortgage (months) (months) Maturity Term Term
# Property Name Payment Rate (7) (7) Date (months) (months)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
77 Thunder Hollow 35,853.83 6.980% 120 114 06/01/08 360 354
78 K-Mart Montwood Point 42,783.20 6.990% 216 214 10/01/16 216 214
79 Trabuco Marketplace 33,072.99 6.560% 180 178 10/01/13 360 358
80 Indian Valley Apartments 34,491.02 6.970% 120 116 08/01/08 360 356
81 Flamingo West Centre 37,151.54 7.120% 120 117 09/01/08 300 297
82 Mill Creek Shopping Center 42,049.97 7.550% 240 235 07/01/18 240 235
83 High Vista Apartments 33,964.69 7.010% 120 117 09/01/08 360 357
84 Woodland Office Center 35,236.49 6.750% 120 117 09/01/23 300 297
85 Bayfair Apartments 34,549.18 7.180% 120 114 06/01/08 360 354
86 University Green Apartments 32,396.68 6.740% 120 118 10/01/08 360 358
87 El Dorado Mobile Home Estates 31,833.93 6.570% 120 117 09/01/08 360 357
88 Holiday Inn - Danbury, CT 36,982.09 7.510% 120 116 08/01/23 300 296
89 Country Inn & Suites Hotel 44,411.97 6.810% 180 178 10/01/13 180 178
90 Center Ridge Apartments 32,560.13 7.160% 120 114 06/01/08 360 354
91 The Marriott Building 36,713.09 6.500% 144 142 10/01/10 228 226
92 Silicon Valley Inn 34,244.92 7.340% 120 119 11/01/08 300 299
93 Best Western - Sunnyvale 33,874.00 7.460% 120 119 11/01/08 300 299
94 Golden Valley Commons 30,362.99 7.030% 180 178 10/01/13 360 358
95 West Park Place 31,290.22 6.820% 120 117 09/01/08 300 297
96 Naperville Office Court 30,332.52 7.130% 120 115 07/01/08 360 355
97 Holiday Inn Express Hotel &
Suites - Mountain View, CA 35,150.74 7.390% 240 238 10/01/18 240 238
98 Best Buy / Drug Emporium 30,601.99 7.260% 120 116 08/01/08 300 296
99 Medical Arts Building 28,818.74 7.430% 60 55 07/01/03 360 355
100 Comfort Inn - Sunnyvale 30,192.04 7.460% 120 119 11/01/08 300 299
101 Holiday Inn North Denver 30,834.02 7.700% 120 115 07/01/23 300 295
102 Windlands Shopping Center (4) 27,176.07 7.260% 120 115 07/01/08 336 336
103 Northborough Woods Apartments 25,894.43 6.980% 120 113 05/01/08 360 353
104 Madison Building 27,753.70 7.220% 120 115 07/01/08 300 295
105 Victory Townhomes 25,588.29 6.990% 120 114 06/01/08 360 354
106 Dairy Plaza Shopping Center 26,911.64 7.140% 120 116 08/01/08 300 296
107 Comfort Inn - Concord, NH 26,456.39 6.980% 120 118 10/01/08 300 298
108 Peconic Plaza 26,492.16 7.220% 120 117 09/01/08 300 297
109 Bayou Village Place Apartments 23,926.72 6.990% 120 118 10/01/08 360 358
110 Country Suites - Chattanooga, TN 25,797.03 7.310% 120 118 10/01/08 300 298
111 531 West Deming 22,747.48 6.770% 120 118 10/01/08 360 358
112 Camelot Apartments 23,379.69 7.040% 120 115 07/01/08 360 355
113 Sevilla Apartments 23,332.62 7.020% 120 114 06/01/08 360 354
114 The Way III Apartments 24,759.60 7.010% 180 175 07/01/13 300 295
115 Glenview Office and Industrial Park 22,464.50 6.760% 120 118 10/01/08 360 358
116 Hampton Inn - Decatur, AL 30,644.26 6.810% 180 178 10/01/13 180 178
117 Mission Industrial Park (1H) 12,781.86 6.750% 120 119 11/01/08 300 299
118 Jurupa Business Park (1H) 10,476.82 7.190% 120 118 10/01/08 360 358
119 Colony Square Shopping Center 24,553.53 7.240% 120 117 09/01/08 300 297
120 Vintage Business Park 24,422.31 7.180% 120 115 07/01/08 300 295
121 Crossroads Shopping Center 23,123.85 7.160% 180 174 06/01/13 300 294
122 High Country Plaza 21,053.80 6.890% 120 119 11/01/08 360 359
123 Glencoe Avenue Industrial 21,203.78 6.960% 120 118 10/01/08 360 358
124 St. Charles Apartments (1I) 12,127.80 6.750% 120 118 10/01/08 240 238
125 St. James Apartments (1I) 12,127.81 6.750% 120 118 10/01/08 240 238
126 Plaza at Sunrise 21,947.46 7.200% 120 116 08/01/08 300 296
127 Shannon Arms III Apartments 20,394.25 7.050% 120 114 06/01/08 360 354
128 River Valley Square Shopping Center 20,193.95 7.200% 120 115 07/01/08 360 355
129 Rio Commercial Center 21,032.92 7.050% 120 117 09/01/08 300 297
130 Alexis Apartment Complex 19,984.33 7.180% 180 175 07/01/13 360 355
131 Beltway Plaza 4710 19,558.42 7.050% 120 117 09/01/08 360 357
132 Casa Linda MHP 19,646.68 7.250% 120 118 10/01/08 360 358
133 Mesa Ridge Apartments 20,600.00 7.250% 120 118 10/01/08 300 298
134 Vintage Business Park II 18,977.13 6.350% 120 118 10/01/08 300 298
135 Mountain Village Shopping Center 20,361.90 7.120% 120 115 07/01/08 300 295
136 Rock River Tower Apartments 17,495.84 6.390% 120 118 10/01/08 360 358
137 Durango Plaza Retail Center 20,166.49 7.210% 120 118 10/01/08 300 298
138 Beatrice Avenue Industrial 19,965.86 7.300% 120 117 09/01/08 300 297
139 Miller Apartments 18,062.96 7.000% 120 119 11/01/08 360 359
140 University Square Outlet Mall 18,825.46 6.850% 120 119 11/01/08 300 299
141 Ridgewood Plaza 18,163.07 7.110% 120 116 08/01/08 360 356
142 Chase Village Apartments 18,492.07 7.290% 120 115 07/01/08 360 355
143 Warsaw Village Shopping Center 17,892.99 6.500% 120 119 11/01/08 300 299
144 Provident Place Office Building 17,293.67 6.810% 120 118 10/01/08 360 358
145 920 S. Waukegan Road 17,530.41 6.280% 120 118 10/01/08 300 298
146 Amberley Suite Hotel 23,538.34 6.810% 180 178 10/01/13 180 178
147 Rite-Aid of Maine, Inc. (5) 18,528.39 7.080% 240 234 06/01/18 307 301
148 Stuart Towne Apartments 19,657.07 6.960% 120 115 07/01/08 252 247
149 Santa Ana Villa 16,437.68 6.690% 120 118 10/01/08 360 358
150 Orland Park Outlots 17,173.27 7.320% 120 114 06/01/08 360 354
151 Brazos Square Shopping Center 17,589.82 6.950% 120 116 08/01/08 300 296
152 Community Mall 25,789.56 7.060% 144 141 09/01/10 144 141
153 Comfort Inn - Fife, WA 18,105.28 7.500% 120 118 10/01/08 300 298
<PAGE>
<CAPTION>
Fee Simple/
# Property Name ARD(8) Defeasance Leasehold
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
77 Thunder Hollow L (2), D (3), YM 1% (4.42), O (0.58) Fee
78 K-Mart Montwood Point L (2), D (15.5), O (0.5) Fee
79 Trabuco Marketplace L (2), D (12.5), O (0.5) Fee
80 Indian Valley Apartments L (2), D (7.5), O (0.5) Fee
81 Flamingo West Centre L (2), D (7.5), O (0.5) Fee
82 Mill Creek Shopping Center L (2), D (17.5), O (0.5) Fee
83 High Vista Apartments L (2), D (7.5), O (0.5) Fee
84 Woodland Office Center 09/01/98 L (2), D (7.5), O (0.5) Fee
85 Bayfair Apartments L (2), D (7.5), O (0.5) Fee
86 University Green Apartments L (2), D (7.5), O (0.5) Fee
87 El Dorado Mobile Home Estates L (2), D (7.5), O (0.5) Fee
88 Holiday Inn - Danbury, CT 08/01/98 L (2), D (7.5), O (0.5) Fee
89 Country Inn & Suites Hotel L (2), D (12.5), O (0.5) Fee
90 Center Ridge Apartments L (2), D (7.5), O (0.5) Fee
91 The Marriott Building L (2), D (7.5), O (0.5) Fee
92 Silicon Valley Inn L (2), D (7.5), O (0.5) Fee
93 Best Western - Sunnyvale L (2), D (7.5), O (0.5) Fee
94 Golden Valley Commons L (2), D (12.5), O (0.5) Fee
95 West Park Place L (2), D (7.5), O (0.5) Fee
96 Naperville Office Court L (2), D (7.5), O (0.5) Fee
97 Holiday Inn Express Hotel &
Suites - Mountain View, CA L (2), D (17.5), O (0.5) Fee
98 Best Buy / Drug Emporium L (2), D (7.5), O (0.5) Fee
99 Medical Arts Building L (2), D (2.5), O (0.5) Fee
100 Comfort Inn - Sunnyvale L (2), D (7.5), O (0.5) Fee
101 Holiday Inn North Denver 07/01/98 L (2.92), D (6.58), O (0.5) Fee
102 Windlands Shopping Center (4) L (2), D (7.5), O (0.5) Fee
103 Northborough Woods Apartments L (2), D (7.5), O (0.5) Fee
104 Madison Building L (2), D (7.5), O (0.5) Leasehold
105 Victory Townhomes L (2), D (7.5), O (0.5) Fee
106 Dairy Plaza Shopping Center L (2), D (7.5), O (0.5) Fee
107 Comfort Inn - Concord, NH L (2), D (7.5), O (0.5) Fee
108 Peconic Plaza L (2), D (7.5), O (0.5) Fee
109 Bayou Village Place Apartments L (2), D (7.5), O (0.5) Fee
110 Country Suites - Chattanooga, TN L (2), D (7.5), O (0.5) Fee
111 531 West Deming L (2), D (7.5), O (0.5) Fee
112 Camelot Apartments L (2), D (7.5), O (0.5) Fee
113 Sevilla Apartments L (2), D (7.5), O (0.5) Fee
114 The Way III Apartments L (2), D (12.5), O (0.5) Fee
115 Glenview Office and Industrial Park L (2), D (7.5), O (0.5) Fee
116 Hampton Inn - Decatur, AL L (2), D (12.5), O (0.5) Fee
117 Mission Industrial Park (1H) L (2), D (7.5), O (0.5) Fee
118 Jurupa Business Park (1H) L (2), D (7.5), O (0.5) Fee
119 Colony Square Shopping Center L (2), D (7.5), O (0.5) Fee
120 Vintage Business Park L (2), D (7.5), O (0.5) Fee
121 Crossroads Shopping Center L (2), D (12.5), O (0.5) Fee
122 High Country Plaza L (2), D (7.5), O (0.5) Fee
123 Glencoe Avenue Industrial L (2), D (7.5), O (0.5) Fee
124 St. Charles Apartments (1I) L (2.92), D (7.58), O (0.5) Fee
125 St. James Apartments (1I) L (2.92), D (7.58), O (0.5) Fee
126 Plaza at Sunrise L (2), D (7.5), O (0.5) Fee
127 Shannon Arms III Apartments L (2), D (7.5), O (0.5) Fee
128 River Valley Square Shopping Center L (2), D (7.5), O (0.5) Fee
129 Rio Commercial Center L (2), D (7.5), O (0.5) Fee
130 Alexis Apartment Complex L (2), D (12.5), O (0.5) Fee
131 Beltway Plaza 4710 L (2), D (7.5), O (0.5) Fee
132 Casa Linda MHP L (2), D (7.5), O (0.5) Fee
133 Mesa Ridge Apartments L (2), D (7.5), O (0.5) Fee
134 Vintage Business Park II L (2), D (7.5), O (0.5) Leasehold
135 Mountain Village Shopping Center L (2), D (7.5), O (0.5) Fee
136 Rock River Tower Apartments L (2), D (7.5), O (0.5) Fee
137 Durango Plaza Retail Center L (2), D (7.5), O (0.5) Fee
138 Beatrice Avenue Industrial L (2), D (7.5), O (0.5) Fee
139 Miller Apartments L (2), D (7.5), O (0.5) Fee
140 University Square Outlet Mall L (2), D (7.5), O (0.5) Fee
141 Ridgewood Plaza L (2), D (7.5), O (0.5) Fee
142 Chase Village Apartments L (2), D (7.5), O (0.5) Fee
143 Warsaw Village Shopping Center L (2), D (7.5), O (0.5) Fee
144 Provident Place Office Building L (2), D (7.5), O (0.5) Fee
145 920 S. Waukegan Road L (2), D (7.5), O (0.5) Fee
146 Amberley Suite Hotel L (2), D (12.5), O (0.5) Fee
147 Rite-Aid of Maine, Inc. (5) L (2), D (17.5), O (0.5) Fee
148 Stuart Towne Apartments L (2), D (7.5), O (0.5) Fee
149 Santa Ana Villa L (2), D (7.5), O (0.5) Fee
150 Orland Park Outlots L (2), D (7.5), O (0.5) Fee
151 Brazos Square Shopping Center L (2), D (7.5), O (0.5) Fee
152 Community Mall L (2), D (9.5), O (0.5) Fee
153 Comfort Inn - Fife, WA L (2), D (7.5), O (0.5) Fee
<PAGE>
<CAPTION>
Interest
# Property Name Originator Accrual
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
77 Thunder Hollow Column Actual/360
78 K-Mart Montwood Point Union Capital Actual/360
79 Trabuco Marketplace Column Actual/360
80 Indian Valley Apartments Column Actual/360
81 Flamingo West Centre Column Actual/360
82 Mill Creek Shopping Center Column Actual/360
83 High Vista Apartments Union Capital Actual/360
84 Woodland Office Center Column Actual/360
85 Bayfair Apartments Column Actual/360
86 University Green Apartments Union Capital Actual/360
87 El Dorado Mobile Home Estates Column Actual/360
88 Holiday Inn - Danbury, CT Column Actual/360
89 Country Inn & Suites Hotel Column Actual/360
90 Center Ridge Apartments Column Actual/360
91 The Marriott Building Column Actual/360
92 Silicon Valley Inn Column Actual/360
93 Best Western - Sunnyvale Column Actual/360
94 Golden Valley Commons Column Actual/360
95 West Park Place Column Actual/360
96 Naperville Office Court Column Actual/360
97 Holiday Inn Express Hotel & Suites - Mountain View, CA Column Actual/360
98 Best Buy / Drug Emporium Union Capital Actual/360
99 Medical Arts Building Column Actual/360
100 Comfort Inn - Sunnyvale Column Actual/360
101 Holiday Inn North Denver Column Actual/360
102 Windlands Shopping Center (4) Column Actual/360
103 Northborough Woods Apartments Column Actual/360
104 Madison Building Union Capital Actual/360
105 Victory Townhomes Column Actual/360
106 Dairy Plaza Shopping Center Column Actual/360
107 Comfort Inn - Concord, NH Column Actual/360
108 Peconic Plaza Column Actual/360
109 Bayou Village Place Apartments Column Actual/360
110 Country Suites - Chattanooga, TN Column Actual/360
111 531 West Deming Column Actual/360
112 Camelot Apartments Column Actual/360
113 Sevilla Apartments Column Actual/360
114 The Way III Apartments Column Actual/360
115 Glenview Office and Industrial Park Column Actual/360
116 Hampton Inn - Decatur, AL Column Actual/360
117 Mission Industrial Park (1H) Column Actual/360
118 Jurupa Business Park (1H) Column Actual/360
119 Colony Square Shopping Center Union Capital Actual/360
120 Vintage Business Park Column Actual/360
121 Crossroads Shopping Center Column Actual/360
122 High Country Plaza Column Actual/360
123 Glencoe Avenue Industrial Column Actual/360
124 St. Charles Apartments (1I) Column Actual/360
125 St. James Apartments (1I) Column Actual/360
126 Plaza at Sunrise Column Actual/360
127 Shannon Arms III Apartments Column Actual/360
128 River Valley Square Shopping Center Column Actual/360
129 Rio Commercial Center Column Actual/360
130 Alexis Apartment Complex Column Actual/360
131 Beltway Plaza 4710 Column Actual/360
132 Casa Linda MHP Union Capital Actual/360
133 Mesa Ridge Apartments Column Actual/360
134 Vintage Business Park II Column Actual/360
135 Mountain Village Shopping Center Column Actual/360
136 Rock River Tower Apartments Column Actual/360
137 Durango Plaza Retail Center Column Actual/360
138 Beatrice Avenue Industrial Column Actual/360
139 Miller Apartments Column Actual/360
140 University Square Outlet Mall Column Actual/360
141 Ridgewood Plaza Column Actual/360
142 Chase Village Apartments Column Actual/360
143 Warsaw Village Shopping Center Column Actual/360
144 Provident Place Office Building Column Actual/360
145 920 S. Waukegan Road Column Actual/360
146 Amberley Suite Hotel Column Actual/360
147 Rite-Aid of Maine, Inc. (5) Column Actual/360
148 Stuart Towne Apartments Column Actual/360
149 Santa Ana Villa Column Actual/360
150 Orland Park Outlots Column Actual/360
151 Brazos Square Shopping Center Column Actual/360
152 Community Mall Column Actual/360
153 Comfort Inn - Fife, WA Column Actual/360
</TABLE>
<PAGE>
Mortgage Loan Schedule
<TABLE>
<CAPTION>
# Property Name Address City
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
154 Aspen Business Center 9942 and 9934 N. Alpine Road Machesney Park
155 Hampton Inn - Ft. Pierce, FL 2831 Reynolds Drive Ft. Pierce
156 Oak Tree Mobile Home Park 565 Diamond Road Jackson Township
157 Walnut Square Apartments 1440 Linden Road Flint
158 Royal Oaks Mobile Home Park 4069 South Pacific Highway Medford
159 Plymouth Square Apartments 9421 Marguerite Road Plymouth Township
160 Watchung View Apartments 650 Somerset Avenue North Plainfield
161 Embassy Apartments 4, 20, 34, 42 & 45 Embassy Square Tonawanda
162 Best Buy - West Dundee 979 Main Street West Dundee
163 1400 Destrehan Avenue 1400 Destrehan Avenue Harvey
164 Breckenridge Condominiums 1701 Big Sur Drive Arlington
165 Rosemont Terrace Apartments 3690 South Port Drive Rancho Cordova
166 Days Inn - Dover, DE 272 North Dupont Highway Dover
167 Iberia Center 16588 Bernardo Center Drive San Diego
168 Shadydale Village Mobile Home Park 100 Apollo Avenue Fayetteville
169 Park Terrace Shopping Center 2223 NC Highway 54 Durham
170 Hanover Village Apartments S/W/S of Division Street Hanover Township
171 Travelodge Hotel--Seatac 14845 Pacific Highway South Tukwila
172 Harlem Furniture 2575 N. Elston Avenue Chicago
173 Tree Tops Apartments 3421 Old Vineyard Road Winston-Salem
174 Old Town Place Apartments 1506 School Road Carrollton
175 The Meadows Apartments 10108 Malaga Way Rancho Cordova
176 Chapman & Feldner Shopping Center 1708-1724 West Chapman Avenue Orange
177 BCH Office Building 1717 Second St & 1722 Third St Sacramento
178 Colonial Pines Mobile Estates 2101 Colonial Avenue Navarre
179 NationsBank Professional Center 8181 W. Broward Blvd. Plantation
180 Belmeade Office Park 2910 Belmeade, 2410 & 2420 Tarpley Road Carrollton
181 Central Building 245 Main Street Salinas
182 710 Amsterdam Avenue 710 Amsterdam Avenue New York
183 Sandstone Apartments & Vista
North Apartments 1502 and 1616 Calle Del Norte Laredo
184 Highland Park Place Shopping Center 14461-14529 Woodward Avenue Highland Park
185 Salem Creek Apartment Complex 802-803 Flame Circle San Antonio
186 Country Greens Apartments 630 Stevens Village Drive Dallas
187 Sahara West Plaza 4601 West Sahara Avenue Las Vegas
188 Walgreen's 2690 Mission Street San Francisco
189 Econolodge - Bangor, ME 327 Odlin Road Bangor
190 Comfort Inn - Bangor, ME 750 Hogan Road Bangor
191 Point Clinton 186 Center Street Clinton
192 Rite-Aid Pharmacy 1623 White Mountain Highway - Routes 16 & 302 Conway
193 Taft and Cleveland Paradise Apartments 2545 Taft Street & 1720 Cleveland Street Hollywood
194 Tyrone Village MHP 13618 North Florida Avenue Tampa
195 Steamboat Road 702-708 Steamboat Road Greenwich
196 Kerr Station Village S. Kerr Ave. & Franklin Wilmington
197 Meadow Run Apartments 3301 Abbeville Highway Anderson
198 45 Church Street 45 Church Street Stamford
199 New Brunswick Apartments 119 Livingston Ave. New Brunswick
200 Fiesta RV Resort 46421 Madison Street Indio
201 Cedar Place Office Park 813 East 86th Street Indianapolis
202 Oak Hollow Mobile Home Park 2746 North Oak Harbor Drive Oak Harbor
203 Centerline Plaza Apartments 25005 Lawrence Street Warren
204 Southport Place 30 Jelliff Lane Southport
205 Bell Building 424 S. 5th Street Springfield
206 Days Inn - Bangor, ME 250 Odlin Road Bangor
207 Stratford Shopping Center 25-41 South White Horse Pike Stratford
208 Country Aire Manor 17102 Meridian Street East Puyallup
209 Corlett Creek Apartments 1105 N. Chipman St. Owosso
210 Anchor Bay Apartments 50620 Jefferson Road New Baltimore
211 Tall Pines Shopping Center 905-911 Pine Crest Drive Marshall
212 Skyline Professional Building 12940 Harriet Avenue South Burnsville
213 Southwood Acres MHP Irish Hill Road & Lexington Mill Road Magnolia
214 Nalbert Apartments 1301, 1315, 1317 and 1319 Ft. Meyer Drive Arlington
215 1220 South University Avenue 1220 South University Avenue Ann Arbor
216 49 Commerce Drive / 81 Ethan Allen Drive 49 Commerce Dr. & 81 Ethan Allen Drive South Burlington
217 3211 Battleground 3211 Battleground Avenue Greensboro
218 Gardner Building 17-19 Gardner Road Fairfield
219 778 Main Street 778 Main Street South Portland
220 Briarwood Apartments 3500 Briarwood Drive Dumfries
221 Walton Village Shopping Center 3021-3095 Walton Boulevard Auburn Hills
222 Rancho Santa Fe Shopping Center 5081 North Rainbow Boulevard Las Vegas
223 Winston Place Apartments 3108 Winston Place Manhattan
224 Hondo Park Apartments 2544 Hondo Avenue Dallas
225 Allegheny Apartments 12001-12021 Allegheny Street Sun Valley
226 Huntington North Apartments 298-326 Auburn Street Portland
227 Rite Aid - Yarmouth US Route 1 Yarmouth
228 Sylvan Apartments 13727-13749 Sylvan Street Los Angeles
229 Finger Lakes/Farmington Court Apartments 1214 Mertensia Road Farmington
230 Walnut Villas Apartments 1027 East Florence Avenue Vineland
<PAGE>
<CAPTION>
Original
Zip Principal Cut-off Date
# Property Name County State Code Balance Balance(6)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
154 Aspen Business Center Winnebago IL 60115 2,425,000 2,421,580
155 Hampton Inn - Ft. Pierce, FL St. Lucie FL 34945 2,400,000 2,396,482
156 Oak Tree Mobile Home Park Ocean NJ 08527 2,400,000 2,394,157
157 Walnut Square Apartments Genesee MI 48532 2,400,000 2,390,965
158 Royal Oaks Mobile Home Park Jackson OR 97051 2,350,000 2,347,823
159 Plymouth Square Apartments Wayne MI 48170 2,340,000 2,329,575
160 Watchung View Apartments Somerset NJ 07060 2,310,000 2,304,820
161 Embassy Apartments Erie NY 14150 2,270,000 2,266,050
162 Best Buy - West Dundee Kane IL 60118 2,250,000 2,244,978
163 1400 Destrehan Avenue Jefferson LA 70058 2,225,000 2,219,495
164 Breckenridge Condominiums Tarrant TX 75007 2,130,000 2,126,716
165 Rosemont Terrace Apartments Sacramento CA 95670 2,130,000 2,122,371
166 Days Inn - Dover, DE Kent DE 19901 2,100,000 2,097,579
167 Iberia Center San Diego CA 92128 2,100,000 2,096,958
168 Shadydale Village Mobile Home Park Fayette GA 30214 2,100,000 2,095,307
169 Park Terrace Shopping Center Durham NC 27713 2,100,000 2,095,107
170 Hanover Village Apartments Luzerne PA 18702 2,100,000 2,093,895
171 Travelodge Hotel--Seatac King WA 98168 2,100,000 2,089,894
172 Harlem Furniture Cook IL 60606 2,100,000 2,088,578
173 Tree Tops Apartments Forsyth NC 27103 2,100,000 2,084,949
174 Old Town Place Apartments Dallas TX 75006 2,080,000 2,075,606
175 The Meadows Apartments Sacramento CA 95670 2,065,000 2,057,604
176 Chapman & Feldner Shopping Center Orange CA 92668 2,000,000 1,995,645
177 BCH Office Building Sacramento CA 95814 2,000,000 1,992,928
178 Colonial Pines Mobile Estates Santa Rosa FL 32566 2,000,000 1,992,764
179 NationsBank Professional Center Broward FL 33324 1,950,000 1,947,050
180 Belmeade Office Park Dallas TX 75006 1,950,000 1,945,618
181 Central Building Monterey CA 93901 1,925,000 1,921,524
182 710 Amsterdam Avenue New York NY 10025 1,915,000 1,912,089
183 Sandstone Apartments &
Vista North Apartments Webb TX 78041 1,900,000 1,896,820
184 Highland Park Place Shopping Center Wayne MI 48203 1,850,000 1,845,496
185 Salem Creek Apartment Complex Bexar TX 78221 1,850,000 1,843,783
186 Country Greens Apartments Dallas TX 75208 1,850,000 1,839,757
187 Sahara West Plaza Clark NV 89108 1,800,000 1,794,168
188 Walgreen's San Francisco CA 94110 1,800,000 1,792,496
189 Econolodge - Bangor, ME Penobscot ME 04401 1,800,000 1,792,615
190 Comfort Inn - Bangor, ME Penobscot ME 04401 1,800,000 1,792,615
191 Point Clinton Hunterdon NJ 08809 1,800,000 1,790,438
192 Rite-Aid Pharmacy Carroll NH 03818 1,760,000 1,746,971
193 Taft and Cleveland Paradise Apartments Broward FL 33020 1,750,000 1,738,574
194 Tyrone Village MHP Hillsborough FL 33613 1,700,000 1,698,607
195 Steamboat Road Fairfield CT 06830 1,700,000 1,697,983
196 Kerr Station Village New Hanover NC 28402 1,700,000 1,697,851
197 Meadow Run Apartments Anderson SC 29624 1,700,000 1,692,877
198 45 Church Street Fairfield CT 06906 1,700,000 1,691,182
199 New Brunswick Apartments Middlesex NJ 13760 1,675,000 1,671,244
200 Fiesta RV Resort Riverside CA 92201 1,650,000 1,646,461
201 Cedar Place Office Park Marion IN 46240 1,650,000 1,646,258
202 Oak Hollow Mobile Home Park Island WA 98277 1,650,000 1,644,074
203 Centerline Plaza Apartments Macomb MI 48091 1,645,000 1,640,077
204 Southport Place Fairfield CT 06490 1,600,000 1,596,887
205 Bell Building Sangamon IL 62701 1,600,000 1,595,934
206 Days Inn - Bangor, ME Penobscot ME 04401 1,600,000 1,594,866
207 Stratford Shopping Center Camden NJ 08084 1,600,000 1,593,556
208 Country Aire Manor Pierce WA 98375 1,600,000 1,593,213
209 Corlett Creek Apartments Shiawassee MI 48867 1,580,000 1,574,126
210 Anchor Bay Apartments Macomb MI 48047 1,560,000 1,555,331
211 Tall Pines Shopping Center Harrison TX 75670 1,550,000 1,532,164
212 Skyline Professional Building Dakota MN 55337 1,525,000 1,523,886
213 Southwood Acres MHP Kent DE 19962 1,520,000 1,515,341
214 Nalbert Apartments Arlington VA 22209 1,520,000 1,514,819
215 1220 South University Avenue Washtenaw MI 48104 1,500,000 1,497,817
216 49 Commerce Drive / 81 Ethan Allen Drive Chittenden VT 05403 1,500,000 1,490,301
217 3211 Battleground Guilford NC 27408 1,500,000 1,487,111
218 Gardner Building Essex NJ 07004 1,466,000 1,464,261
219 778 Main Street Cumberland ME 04106 1,450,000 1,448,138
220 Briarwood Apartments Prince William VA 22026 1,450,000 1,447,651
221 Walton Village Shopping Center Oakland MI 48321 1,450,000 1,445,425
222 Rancho Santa Fe Shopping Center Clark NV 89103 1,450,000 1,444,971
223 Winston Place Apartments Riley KS 66502 1,440,000 1,436,546
224 Hondo Park Apartments Dallas TX 75219 1,425,000 1,423,866
225 Allegheny Apartments Los Angeles CA 91352 1,425,000 1,419,806
226 Huntington North Apartments Cumberland ME 04102 1,420,000 1,415,052
227 Rite Aid - Yarmouth Cumberland ME 04096 1,420,000 1,414,258
228 Sylvan Apartments Los Angeles CA 91401 1,400,000 1,397,841
229 Finger Lakes/Farmington Court Apartments Ontario NY 14425 1,400,000 1,397,635
230 Walnut Villas Apartments Cumberland NJ 08360 1,400,000 1,396,642
<PAGE>
<CAPTION>
Orig-
Original Remaining inal Remaining
Term to Term to Amorti- Amorti-
Maturity Maturity tization zation
Monthly Mortgage (months) (months) Maturity Term Term
# Property Name Payment Rate (7) (7) Date (months) (months)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
154 Aspen Business Center 16,313.13 7.110% 120 118 10/01/08 360 358
155 Hampton Inn - Ft. Pierce, FL 17,518.06 7.000% 120 119 11/01/08 276 275
156 Oak Tree Mobile Home Park 16,415.55 6.640% 120 118 10/01/08 300 298
157 Walnut Square Apartments 15,598.27 6.770% 120 115 07/01/08 360 355
158 Royal Oaks Mobile Home Park 14,660.94 6.375% 120 119 11/01/08 360 359
159 Plymouth Square Apartments 16,778.24 7.160% 180 176 08/01/13 300 296
160 Watchung View Apartments 15,477.24 7.070% 180 177 09/01/13 360 357
161 Embassy Apartments 13,932.52 6.220% 120 118 10/01/08 360 358
162 Best Buy - West Dundee 15,105.55 7.090% 204 201 09/01/15 360 357
163 1400 Destrehan Avenue 15,092.95 6.550% 120 118 10/01/08 300 298
164 Breckenridge Condominiums 13,800.98 6.740% 120 118 10/01/08 360 358
165 Rosemont Terrace Apartments 14,128.05 6.970% 120 115 07/01/08 360 355
166 Days Inn - Dover, DE 15,423.32 7.430% 120 119 11/01/08 300 299
167 Iberia Center 13,971.35 7.000% 120 118 10/01/08 360 358
168 Shadydale Village Mobile Home Park 14,990.05 7.110% 120 118 10/01/08 300 298
169 Park Terrace Shopping Center 13,830.60 6.900% 120 117 09/01/08 360 357
170 Hanover Village Apartments 13,985.46 7.010% 120 116 08/01/08 360 356
171 Travelodge Hotel--Seatac 15,972.36 7.830% 120 115 07/01/08 300 295
172 Harlem Furniture 16,559.75 7.220% 240 237 09/01/18 240 237
173 Tree Tops Apartments 14,539.98 7.400% 84 74 02/01/05 360 350
174 Old Town Place Apartments 14,302.31 7.330% 120 117 09/01/08 360 357
175 The Meadows Apartments 13,696.92 6.970% 120 115 07/01/08 360 355
176 Chapman & Feldner Shopping Center 14,456.14 7.250% 120 118 10/01/08 300 298
177 BCH Office Building 14,122.83 6.990% 120 117 09/01/08 300 297
178 Colonial Pines Mobile Estates 13,212.16 6.930% 120 115 07/01/08 360 355
179 NationsBank Professional Center 12,738.53 6.820% 120 118 10/01/08 360 358
180 Belmeade Office Park 13,881.87 7.080% 120 118 10/01/08 300 298
181 Central Building 15,507.67 7.500% 120 119 11/01/08 240 239
182 710 Amsterdam Avenue 12,484.37 6.800% 120 118 10/01/08 360 358
183 Sandstone Apartments &
Vista North Apartments 11,872.17 6.390% 120 118 10/01/08 360 358
184 Highland Park Place Shopping Center 12,653.65 6.640% 120 118 10/01/08 300 298
185 Salem Creek Apartment Complex 12,582.64 7.220% 120 115 07/01/08 360 355
186 Country Greens Apartments 13,205.52 7.110% 180 175 07/01/13 300 295
187 Sahara West Plaza 12,413.76 7.360% 120 115 07/01/08 360 355
188 Walgreen's 13,239.70 7.090% 240 237 09/01/18 276 273
189 Econolodge - Bangor, ME 13,419.14 7.600% 120 116 08/01/08 300 296
190 Comfort Inn - Bangor, ME 13,419.14 7.600% 120 116 08/01/08 300 296
191 Point Clinton 14,390.81 7.400% 120 117 09/01/08 240 237
192 Rite-Aid Pharmacy 13,592.49 6.950% 240 236 08/01/18 240 236
193 Taft and Cleveland Paradise Apartments 12,728.15 7.320% 180 174 06/01/13 300 294
194 Tyrone Village MHP 11,310.14 7.000% 120 119 11/01/08 360 359
195 Steamboat Road 12,287.72 7.250% 120 119 11/01/08 300 299
196 Kerr Station Village 11,853.07 6.850% 120 119 11/01/08 300 299
197 Meadow Run Apartments 11,539.40 7.200% 120 114 06/01/08 360 354
198 45 Church Street 12,507.61 7.450% 120 115 07/01/08 300 295
199 New Brunswick Apartments 11,222.67 7.070% 180 177 09/01/13 360 357
200 Fiesta RV Resort 12,011.49 7.330% 120 118 10/01/08 300 298
201 Cedar Place Office Park 10,999.66 7.020% 120 117 09/01/08 360 357
202 Oak Hollow Mobile Home Park 11,556.81 6.900% 120 117 09/01/08 300 297
203 Centerline Plaza Apartments 10,822.97 6.890% 120 116 08/01/08 360 356
204 Southport Place 12,299.36 6.890% 120 119 11/01/08 240 239
205 Bell Building 10,703.55 6.400% 132 130 10/01/09 300 298
206 Days Inn - Bangor, ME 11,865.52 7.540% 120 117 09/01/08 300 297
207 Stratford Shopping Center 11,034.45 7.360% 120 114 06/01/08 360 354
208 Country Aire Manor 10,806.51 7.150% 120 114 06/01/08 360 354
209 Corlett Creek Apartments 10,866.57 6.700% 120 117 09/01/08 300 297
210 Anchor Bay Apartments 10,263.73 6.890% 120 116 08/01/08 360 356
211 Tall Pines Shopping Center 12,138.38 7.130% 120 114 06/01/08 240 234
212 Skyline Professional Building 10,746.68 7.580% 180 179 11/01/13 360 359
213 Southwood Acres MHP 9,899.14 6.790% 120 116 08/01/08 360 356
214 Nalbert Apartments 10,937.75 7.200% 120 117 09/01/08 300 297
215 1220 South University Avenue 9,959.40 6.980% 120 118 10/01/08 360 358
216 49 Commerce Drive / 81 Ethan Allen Drive 13,273.64 6.750% 180 178 10/01/13 180 178
217 3211 Battleground 12,558.91 7.370% 120 116 08/01/08 216 212
218 Gardner Building 10,596.35 7.250% 120 119 11/01/08 300 299
219 778 Main Street 10,018.22 6.750% 120 119 11/01/08 300 299
220 Briarwood Apartments 9,193.61 6.530% 120 118 10/01/08 360 358
221 Walton Village Shopping Center 13,033.01 7.000% 120 119 11/01/08 180 179
222 Rancho Santa Fe Shopping Center 10,340.98 7.100% 120 117 09/01/08 300 297
223 Winston Place Apartments 9,358.96 6.770% 120 117 09/01/08 360 357
224 Hondo Park Apartments 9,624.55 7.150% 120 119 11/01/08 360 359
225 Allegheny Apartments 9,385.05 6.900% 120 115 07/01/08 360 355
226 Huntington North Apartments 11,309.54 7.350% 240 238 10/01/18 240 238
227 Rite Aid - Yarmouth 10,370.91 6.240% 240 238 10/01/18 240 238
228 Sylvan Apartments 9,071.07 6.740% 120 118 10/01/08 360 358
229 Finger Lakes/Farmington Court Apartments 8,711.30 6.350% 120 118 10/01/08 360 358
230 Walnut Villas Apartments 9,098.99 6.770% 120 117 09/01/08 360 357
<PAGE>
<CAPTION>
Fee Simple/
# Property Name Defeasance Leasehold
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
154 Aspen Business Center L (2), D (7.5), O (0.5) Fee
155 Hampton Inn - Ft. Pierce, FL L (2), D (7.5), O (0.5) Fee
156 Oak Tree Mobile Home Park L (2), D (7.5), O (0.5) Fee
157 Walnut Square Apartments L (2), D (7.5), O (0.5) Fee
158 Royal Oaks Mobile Home Park L (2), D (7.5), O (0.5) Fee
159 Plymouth Square Apartments No Fee
160 Watchung View Apartments L (3.08), D (11.42), O (0.5) Fee
161 Embassy Apartments L (2), D (7.5), O (0.5) Fee
162 Best Buy - West Dundee L (2), D (14.5), O (0.5) Fee
163 1400 Destrehan Avenue L (2.92), D (7.58), O (0.5) Fee
164 Breckenridge Condominiums L (2), D (7.5), O (0.5) Fee
165 Rosemont Terrace Apartments No Fee
166 Days Inn - Dover, DE L (2), D (7.5), O (0.5) Fee
167 Iberia Center L (2), D (7.5), O (0.5) Fee
168 Shadydale Village Mobile Home Park L (2), D (7.5), O (0.5) Fee
169 Park Terrace Shopping Center L (3.08), D (6.42), O (0.5) Fee
170 Hanover Village Apartments L (2), D (7.5), O (0.5) Fee
171 Travelodge Hotel--Seatac L (2.92), D (7.58), O (0.5) Fee
172 Harlem Furniture L (2), D (17.5), O (0.5) Fee
173 Tree Tops Apartments No Fee
174 Old Town Place Apartments L (2), D (7.5), O (0.5) Fee
175 The Meadows Apartments No Fee
176 Chapman & Feldner Shopping Center No Fee
177 BCH Office Building L (2), D (7.5), O (0.5) Fee
178 Colonial Pines Mobile Estates L (2), D (7.5), O (0.5) Fee
179 NationsBank Professional Center L (2), D (7.5), O (0.5) Fee
180 Belmeade Office Park L (2), D (7.5), O (0.5) Fee
181 Central Building No Fee
182 710 Amsterdam Avenue L (2), D (7.5), O (0.5) Fee
183 Sandstone Apartments &
Vista North Apartments L (2), D (7.5), O (0.5) Fee
184 Highland Park Place Shopping Center L (2), D (7.5), O (0.5) Fee
185 Salem Creek Apartment Complex L (2), D (7.5), O (0.5) Fee
186 Country Greens Apartments L (2), D (12.5), O (0.5) Fee
187 Sahara West Plaza L (2), D (7.5), O (0.5) Fee
188 Walgreen's L (2), D (17.5), O (0.5) Fee
189 Econolodge - Bangor, ME L (2), D (7.5), O (0.5) Fee
190 Comfort Inn - Bangor, ME L (2), D (7.5), O (0.5) Fee
191 Point Clinton L (2), D (7.5), O (0.5) Fee
192 Rite-Aid Pharmacy L (2), D (17.5), O (0.5) Fee
193 Taft and Cleveland Paradise Apartments L (2), D (12.5), O (0.5) Fee
194 Tyrone Village MHP L (2), D (7.5), O (0.5) Fee
195 Steamboat Road No Fee
196 Kerr Station Village L (2), D (7.5), O (0.5) Fee
197 Meadow Run Apartments L (2), D (7.5), O (0.5) Fee
198 45 Church Street L (2), D (7.5), O (0.5) Fee
199 New Brunswick Apartments L (3.08), D (11.42), O (0.5) Fee
200 Fiesta RV Resort L (2), D (7.5), O (0.5) Fee
201 Cedar Place Office Park L (2), D (7.5), O (0.5) Fee
202 Oak Hollow Mobile Home Park L (2), D (7.5), O (0.5) Fee
203 Centerline Plaza Apartments L (2), D (7.5), O (0.5) Fee
204 Southport Place L (2), D (7.5), O (0.5) Fee
205 Bell Building L (2), D (8.5), O (0.5) Fee
206 Days Inn - Bangor, ME L (2), D (7.5), O (0.5) Fee/Leasehold
207 Stratford Shopping Center L (2), D (7.5), O (0.5) Fee
208 Country Aire Manor L (2), D (7.5), O (0.5) Fee
209 Corlett Creek Apartments L (2), D (7.5), O (0.5) Fee
210 Anchor Bay Apartments L (2), D (7.5), O (0.5) Fee
211 Tall Pines Shopping Center L (3), D (6.5), O (0.5) Fee
212 Skyline Professional Building L (2.92), D (11.58), O (0.5) Fee
213 Southwood Acres MHP L (3.08), D (6.42), O (0.5) Fee
214 Nalbert Apartments No Fee
215 1220 South University Avenue No Fee
216 49 Commerce Drive / 81 Ethan Allen Drive L (2), D (12.5), O (0.5) Fee
217 3211 Battleground L (2), D (7.5), O (0.5) Fee
218 Gardner Building No Fee
219 778 Main Street L (2), D (7.5), O (0.5) Fee
220 Briarwood Apartments L (2), D (7.5), O (0.5) Fee
221 Walton Village Shopping Center L (2), D (7.5), O (0.5) Fee
222 Rancho Santa Fe Shopping Center L (2), D (7.5), O (0.5) Fee
223 Winston Place Apartments L (2), D (7.5), O (0.5) Fee
224 Hondo Park Apartments L (2), D (7.5), O (0.5) Fee
225 Allegheny Apartments L (2), D (7.5), O (0.5) Fee
226 Huntington North Apartments No Fee
227 Rite Aid - Yarmouth L (2), D (17.5), O (0.5) Leasehold
228 Sylvan Apartments L (2), D (7.5), O (0.5) Fee
229 Finger Lakes/Farmington Court Apartments L (2), D (7.5), O (0.5) Fee
230 Walnut Villas Apartments L (2), D (7.5), O (0.5) Fee
<PAGE>
<CAPTION>
Interest
# Property Name Originator Accrual
- ----------------------------------------------------------------------------------------------------------
<S>
154 Aspen Business Center Column Actual/360
155 Hampton Inn - Ft. Pierce, FL Column Actual/360
156 Oak Tree Mobile Home Park Union Capital Actual/360
157 Walnut Square Apartments Column Actual/360
158 Royal Oaks Mobile Home Park Union Capital Actual/360
159 Plymouth Square Apartments Column Actual/360
160 Watchung View Apartments Column Actual/360
161 Embassy Apartments Column Actual/360
162 Best Buy - West Dundee Column Actual/360
163 1400 Destrehan Avenue Column Actual/360
164 Breckenridge Condominiums Column Actual/360
165 Rosemont Terrace Apartments Column Actual/360
166 Days Inn - Dover, DE Column Actual/360
167 Iberia Center Column Actual/360
168 Shadydale Village Mobile Home Park Union Capital Actual/360
169 Park Terrace Shopping Center Column Actual/360
170 Hanover Village Apartments Column Actual/360
171 Travelodge Hotel--Seatac Column Actual/360
172 Harlem Furniture Column Actual/360
173 Tree Tops Apartments Column Actual/360
174 Old Town Place Apartments Column Actual/360
175 The Meadows Apartments Column Actual/360
176 Chapman & Feldner Shopping Center Column Actual/360
177 BCH Office Building Column Actual/360
178 Colonial Pines Mobile Estates Union Capital Actual/360
179 NationsBank Professional Center Column Actual/360
180 Belmeade Office Park Column Actual/360
181 Central Building Column Actual/360
182 710 Amsterdam Avenue Column Actual/360
183 Sandstone Apartments & Vista North Apartments Column Actual/360
184 Highland Park Place Shopping Center Column Actual/360
185 Salem Creek Apartment Complex Column Actual/360
186 Country Greens Apartments Column Actual/360
187 Sahara West Plaza Column Actual/360
188 Walgreen's Column Actual/360
189 Econolodge - Bangor, ME Column Actual/360
190 Comfort Inn - Bangor, ME Column Actual/360
191 Point Clinton Column Actual/360
192 Rite-Aid Pharmacy Column Actual/360
193 Taft and Cleveland Paradise Apartments Column Actual/360
194 Tyrone Village MHP Union Capital Actual/360
195 Steamboat Road Column Actual/360
196 Kerr Station Village Column Actual/360
197 Meadow Run Apartments Column Actual/360
198 45 Church Street Column Actual/360
199 New Brunswick Apartments Column Actual/360
200 Fiesta RV Resort Union Capital Actual/360
201 Cedar Place Office Park Column Actual/360
202 Oak Hollow Mobile Home Park Union Capital Actual/360
203 Centerline Plaza Apartments Column Actual/360
204 Southport Place Column Actual/360
205 Bell Building Column Actual/360
206 Days Inn - Bangor, ME Column Actual/360
207 Stratford Shopping Center Column Actual/360
208 Country Aire Manor Union Capital Actual/360
209 Corlett Creek Apartments Column Actual/360
210 Anchor Bay Apartments Column Actual/360
211 Tall Pines Shopping Center Column 30/360
212 Skyline Professional Building Column Actual/360
213 Southwood Acres MHP Column Actual/360
214 Nalbert Apartments Column Actual/360
215 1220 South University Avenue Column Actual/360
216 49 Commerce Drive / 81 Ethan Allen Drive Column 30/360
217 3211 Battleground Column Actual/360
218 Gardner Building Column Actual/360
219 778 Main Street Column Actual/360
220 Briarwood Apartments Column Actual/360
221 Walton Village Shopping Center Column Actual/360
222 Rancho Santa Fe Shopping Center Column Actual/360
223 Winston Place Apartments Column Actual/360
224 Hondo Park Apartments Column Actual/360
225 Allegheny Apartments Column Actual/360
226 Huntington North Apartments Column Actual/360
227 Rite Aid - Yarmouth Column Actual/360
228 Sylvan Apartments Column Actual/360
229 Finger Lakes/Farmington Court Apartments Column Actual/360
230 Walnut Villas Apartments Column Actual/360
</TABLE>
<PAGE>
Mortgage Loan Schedule
<TABLE>
<CAPTION>
# Property Name Address City
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
231 Portsmouth Place Apartments 263 Rockland Avenue Portsmouth
232 70 Warren Avenue 70 Warren Avenue Chelsea
233 Martinsville Plaza 1966 Washington Valley Road Martinsville
234 Route 66 Business World 7215 New Market Court Manassas
235 Woodwinds Condominiums 3947 Pleasant Run Road Irving
236 College Square Apartments 6210-6220 South 51st Street Greendale
237 Car Engineering Building 51 Victor Heights Parkway Victor
238 Executive Townhomes 2501 N. Bishop Street San Marcos
239 Hartford Crossing Retail Plaza 550 Hartford Avenue Providence
240 Cypress Plaza Shopping Center 9801-9969 Walker Street & 5481 Ball Road Cypress
241 Sarasota Place Apartments 4815-4845 Bradenton Road Sarasota
242 Clayton Forest Apartments 4711 Waldrop Drive Forest Park
243 Checker Auto Parts Store 911 North Circle Drive / 1005 West Highway 50 Colorado Springs / Pueblo
244 Southpointe Center 24021 Alessandro Boulevard Moreno Valley
245 Maple Court Apartments 25 Teaneck Road Ridgefield Park
246 Crestwood MHP 4404 Ruddell Road SE Lacey
247 Hyde Park Place Apartments 3627 Gillham Road Kansas City
248 Allen Medical Office Building 515 W. Main Street Allen
249 Canyon View Offices 21308 Pathfinder Road Diamond Bar
250 Firehouse Square 602/620 Auburn Way South Auburn
251 Plymouth Place Plaza 34706-34730 Plymouth Road Livonia
252 Meridian Mobile Estates 202 27th Avenue SE Puyallup
253 Country Mobile Estates 16308 B Street East Spanaway
254 Village Apartments 2458 Westgate Drive Commerce
255 Ackels Mobile Home Park 25151 Dequindre Road Madison Heights
256 Redford Manor Apartments 27000 Joy Road Redford
257 Doms Business Park 41-995 Boardwalk Palm Desert
258 Bradfield Creek Townhomes 2122 Woodnote Garland
259 San Remo Apartments 2204 San Gabriel Street Austin
260 Consolidated Printing 1301-B Governor Court Abingdon
261 Knightsbridge Apartments 5906-5912 Park Heights Avenue Baltimore
262 Whispering Meadows 640-660 South Porter Street Manchester
263 Buckingham Court Apartments 3524 Buckingham Road Garland
264 Homestead Apartments 5401 56th Street Lubbock
265 4th Avenue West Estates 11100 4th Avenue West Everett
266 Treaty Oaks Apartments 3700 Manchaca Road Austin
267 Wilshire Estates MHP 228 Billy Avenue Warner Robins
268 Hollywood Video 6473 Niles Street Bakersfield
269 5 Milk Street 5 Milk Street Portland
270 Cardi Building 833 Phillips Road Victor
271 Boulevard of Chevy Chase Apartments 4733 Bradley Boulevard Bethesda
272 10 McKinley Street 10 McKinley Street Closter
273 Londonaire Townhouses 6119 Strauss Road Lockport
274 Heon Court Apartments 109-111 Allds Street Nashua
275 One Cameron Place Shopping Center 7901 Cameron Road Austin
276 197 U.S. Route One 197 US Route 1 Scarborough
277 980 Forest Avenue 980 Forest Avenue Portland
278 Chandler Crossing Apartments 809 N. Broad Chandler
279 Kingswood Place Apartments 4318 Bull Creek Road Austin
280 4525-4535 McEwen Road 4525-4535 McEwen Road Farmers Branch
281 Doms Metroplex Park 72-096 Dunham Way Thousand Palms
282 Baxter Mills Apartments 80 Buffumsville Road Somersworth
283 Seven Eleven 112-05/11 Liberty Avenue Ozone Park
284 3314 Mount Pleasant Apartments 3314 Mount Pleasant Washington
285 Virginia Apartments 2010 Betty Lane Richmond
286 Pagewood Oval Apartments 6 Page Road Litchfield
287 Creekview Condominiums 1601 Beltline Road Garland
288 Park Hill Apartments 250 Johnson Street Palmyra
289 Amherst Gardens 464 Boston Post Road Amherst
290 Arlington Arms Apartments 18 1/2 Arlington Street Nashua
291 Barstow Plaza 1303-1311 E. Main Street Barstow
292 Fleur de Lis Apartments 100 South Williams Street Natchitoches
293 2602 Penny Lane 2602 Penny Lane Austin
294 3246 Navarre Avenue 3246 Navarre Avenue Oregon
295 Tara Apartments 65 Lambert Street Portland
296 Mark V Apartments 3914 Avenue D Austin
297 Hallmark Apartments 710 W. 34th Street Austin
298 Mirage Apartments 13343 Maham Road Dallas
299 Main Street Studios 4311 Main Street Dallas
300 Summertree Apartments 312 Second Street Natchitoches
301 Prestige State Bank 92 Old Highway 22 (SR 173) Clinton
302 Masonic Temple 90 Washington Street Dover
<PAGE>
<CAPTION>
Original
Zip Principal Cut-off Date
# Property Name County State Code Balance Balance(6)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
231 Portsmouth Place Apartments Rockingham NH 03101 1,400,000 1,393,339
232 70 Warren Avenue Suffolk MA 01250 1,372,000 1,369,150
233 Martinsville Plaza Somerset NJ 08836 1,350,000 1,346,876
234 Route 66 Business World Prince George's VA 22110 1,322,000 1,320,493
235 Woodwinds Condominiums Dallas TX 75038 1,305,000 1,302,988
236 College Square Apartments Milwaukee WI 53129 1,300,000 1,298,650
237 Car Engineering Building Ontario NY 14564 1,300,000 1,298,518
238 Executive Townhomes Hays TX 78666 1,300,000 1,298,518
239 Hartford Crossing Retail Plaza Providence RI 02903 1,300,000 1,294,855
240 Cypress Plaza Shopping Center Orange CA 90630 1,300,000 1,277,569
241 Sarasota Place Apartments Sarasota FL 34234 1,275,000 1,268,244
242 Clayton Forest Apartments Clayton GA 30297 1,250,000 1,247,061
243 Checker Auto Parts Store El Paso and Pueblo CO Various 1,250,000 1,241,293
244 Southpointe Center Riverside CA 92553 1,250,000 1,228,185
245 Maple Court Apartments Bergen NJ 07660 1,225,000 1,222,253
246 Crestwood MHP Thurston WA 98503 1,225,000 1,220,422
247 Hyde Park Place Apartments Jackson MO 64111 1,220,000 1,216,314
248 Allen Medical Office Building Collin TX 75013 1,225,000 1,210,700
249 Canyon View Offices Los Angeles CA 91765 1,200,000 1,198,686
250 Firehouse Square King WA 98002 1,200,000 1,197,382
251 Plymouth Place Plaza Wayne MI 48150 1,200,000 1,194,801
252 Meridian Mobile Estates Pierce WA 98374 1,200,000 1,194,594
253 Country Mobile Estates Pierce WA 98445 1,175,000 1,167,889
254 Village Apartments Hunt TX 75148 1,125,000 1,122,663
255 Ackels Mobile Home Park Oakland MI 48071 1,100,000 1,098,508
256 Redford Manor Apartments Wayne MI 48239 1,096,000 1,092,844
257 Doms Business Park Riverside CA 92211 1,080,000 1,078,769
258 Bradfield Creek Townhomes Dallas TX 75040 1,050,000 1,047,819
259 San Remo Apartments Travis TX 78705 1,040,000 1,036,984
260 Consolidated Printing Harford MD 21040 1,025,000 1,023,948
261 Knightsbridge Apartments Baltimore MD 21215 1,000,000 998,938
262 Whispering Meadows Hillsborough NH 03103 1,000,000 996,657
263 Buckingham Court Apartments Dallas TX 75042 1,000,000 996,777
264 Homestead Apartments Lubbock TX 79414 1,000,000 996,490
265 4th Avenue West Estates Snohomish WA 98204 1,000,000 993,781
266 Treaty Oaks Apartments Travis TX 78704 950,000 948,917
267 Wilshire Estates MHP Houston GA 31093 950,000 941,325
268 Hollywood Video Kern CA 93301 925,000 920,125
269 5 Milk Street Cumberland ME 04112 900,000 898,974
270 Cardi Building Ontario NY 14564 900,000 898,974
271 Boulevard of Chevy Chase Apartments Montgomery MD 20815 900,000 896,944
272 10 McKinley Street Bergen NJ 07624 850,000 849,031
273 Londonaire Townhouses Niagara NY 14094 850,000 848,564
274 Heon Court Apartments Hillsborough NH 03060 840,000 838,084
275 One Cameron Place Shopping Center Travis TX 78753 825,000 824,060
276 197 U.S. Route One Cumberland ME 04074 825,000 823,220
277 980 Forest Avenue Cumberland ME 04103 809,000 807,281
278 Chandler Crossing Apartments Henderson TX 75758 800,000 797,377
279 Kingswood Place Apartments Travis TX 78731 785,000 782,426
280 4525-4535 McEwen Road Dallas TX 75244 750,000 749,172
281 Doms Metroplex Park Riverside CA 92211 750,000 749,145
282 Baxter Mills Apartments Strafford NH 03878 740,000 738,433
283 Seven Eleven Queens NY 11419 725,000 723,392
284 3314 Mount Pleasant Apartments Lucas DC 20010 710,000 707,854
285 Virginia Apartments Henrico VA 23226 700,000 699,186
286 Pagewood Oval Apartments Hillsborough NH 03052 675,000 672,740
287 Creekview Condominiums Dallas TX 75044 630,000 628,691
288 Park Hill Apartments Wayne NY 14522 615,000 613,961
289 Amherst Gardens Hillsborough NH 03031 600,000 598,694
290 Arlington Arms Apartments Hillsborough NH 03060 585,000 583,666
291 Barstow Plaza San Bernardino CA 92311 500,000 499,461
292 Fleur de Lis Apartments Natchitoches LA 71457 500,000 498,217
293 2602 Penny Lane Travis TX 78757 484,000 483,049
294 3246 Navarre Avenue Lucas OH 43616 457,500 456,550
295 Tara Apartments Cumberland ME 04102 450,000 448,432
296 Mark V Apartments Travis TX 78751 420,000 419,168
297 Hallmark Apartments Travis TX 78703 400,000 398,843
298 Mirage Apartments Dallas TX 75240 388,000 386,867
299 Main Street Studios Dallas TX 75226 380,000 379,302
300 Summertree Apartments Natchitoches LA 71457 371,000 369,677
301 Prestige State Bank Hunterdon NJ 08809 360,000 359,347
302 Masonic Temple Strafford NH 03840 350,000 349,314
<PAGE>
<CAPTION>
Orig-
Original Remaining inal Remaining
Term to Term to Amorti- Amorti-
Maturity Maturity zation zation
Monthly Mortgage (months) (months) Maturity Term Term
# Property Name Payment Rate (7) (7) Date (months) (months)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
231 Portsmouth Place Apartments 9,717.01 6.800% 120 116 08/01/08 300 296
232 70 Warren Avenue 10,138.96 7.500% 120 118 10/01/08 300 298
233 Martinsville Plaza 8,918.21 6.930% 120 117 09/01/08 360 357
234 Route 66 Business World 9,769.46 7.500% 120 119 11/01/08 300 299
235 Woodwinds Condominiums 8,455.53 6.740% 120 118 10/01/08 360 358
236 College Square Apartments 7,611.24 5.780% 120 119 11/01/08 360 359
237 Car Engineering Building 9,606.89 7.500% 120 119 11/01/08 300 299
238 Executive Townhomes 9,606.89 7.500% 120 119 11/01/08 300 299
239 Hartford Crossing Retail Plaza 9,027.56 7.430% 120 114 06/01/08 360 354
240 Cypress Plaza Shopping Center 15,221.71 7.190% 120 117 09/01/08 120 117
241 Sarasota Place Apartments 9,289.85 7.340% 120 115 07/01/08 300 295
242 Clayton Forest Apartments 8,199.09 6.860% 120 117 09/01/08 360 357
243 Checker Auto Parts Store 9,993.62 7.400% 240 236 08/01/18 240 236
244 Southpointe Center 13,143.06 7.430% 144 140 08/01/10 144 140
245 Maple Court Apartments 8,207.63 7.070% 180 177 09/01/13 360 357
246 Crestwood MHP 7,986.08 6.800% 120 115 07/01/08 360 355
247 Hyde Park Place Apartments 7,994.16 6.850% 120 116 08/01/08 360 356
248 Allen Medical Office Building 11,418.64 7.590% 180 176 08/01/13 180 176
249 Canyon View Offices 9,063.95 7.750% 120 119 11/01/08 300 299
250 Firehouse Square 8,665.95 7.240% 60 58 10/01/03 300 298
251 Plymouth Place Plaza 8,720.12 7.310% 120 116 08/01/08 300 296
252 Meridian Mobile Estates 8,558.06 7.100% 120 116 08/01/08 300 296
253 Country Mobile Estates 8,455.17 7.200% 180 175 07/01/13 300 295
254 Village Apartments 8,313.65 7.500% 120 118 10/01/08 300 298
255 Ackels Mobile Home Park 7,358.69 6.400% 120 119 11/01/08 300 299
256 Redford Manor Apartments 7,328.56 7.050% 120 116 08/01/08 360 356
257 Doms Business Park 7,981.10 7.500% 120 119 11/01/08 300 299
258 Bradfield Creek Townhomes 7,759.41 7.500% 120 118 10/01/08 300 298
259 San Remo Apartments 6,933.12 7.020% 120 116 08/01/08 360 356
260 Consolidated Printing 8,013.24 8.150% 120 119 11/01/08 300 299
261 Knightsbridge Apartments 7,228.43 7.400% 120 119 11/01/08 312 311
262 Whispering Meadows 7,266.77 7.310% 120 117 09/01/08 300 297
263 Buckingham Court Apartments 6,910.16 7.380% 120 115 07/01/08 360 355
264 Homestead Apartments 6,686.64 7.050% 120 115 07/01/08 360 355
265 4th Avenue West Estates 8,904.63 6.850% 180 178 10/01/13 180 178
266 Treaty Oaks Apartments 7,020.42 7.500% 120 119 11/01/08 300 299
267 Wilshire Estates MHP 8,661.49 7.230% 180 177 09/01/13 180 177
268 Hollywood Video 7,429.13 7.460% 120 117 09/01/08 240 237
269 5 Milk Street 6,650.92 7.500% 120 119 11/01/08 300 299
270 Cardi Building 6,650.92 7.500% 120 119 11/01/08 300 299
271 Boulevard of Chevy Chase Apartments 6,096.91 7.180% 120 115 07/01/08 360 355
272 10 McKinley Street 6,281.43 7.500% 120 119 11/01/08 300 299
273 Londonaire Townhouses 5,289.00 6.350% 120 118 10/01/08 360 358
274 Heon Court Apartments 5,936.95 7.000% 120 118 10/01/08 300 298
275 One Cameron Place Shopping Center 6,096.68 7.500% 120 119 11/01/08 300 299
276 197 U.S. Route One 5,989.76 7.300% 120 118 10/01/08 300 298
277 980 Forest Avenue 5,915.44 7.380% 120 118 10/01/08 300 298
278 Chandler Crossing Apartments 5,870.36 7.420% 120 117 09/01/08 300 297
279 Kingswood Place Apartments 6,463.83 7.790% 120 118 10/01/08 240 238
280 4525-4535 McEwen Road 5,640.47 7.700% 120 119 11/01/08 300 299
281 Doms Metroplex Park 5,542.43 7.500% 120 119 11/01/08 300 299
282 Baxter Mills Apartments 5,420.49 7.400% 120 118 10/01/08 300 298
283 Seven Eleven 5,193.73 7.150% 120 118 10/01/08 300 298
284 3314 Mount Pleasant Apartments 5,418.89 7.870% 120 117 09/01/08 300 297
285 Virginia Apartments 5,116.16 7.375% 120 119 11/01/08 300 299
286 Pagewood Oval Apartments 4,900.71 7.300% 120 117 09/01/08 300 297
287 Creekview Condominiums 4,655.64 7.500% 120 118 10/01/08 300 298
288 Park Hill Apartments 3,826.75 6.350% 120 118 10/01/08 360 358
289 Amherst Gardens 4,336.84 7.250% 120 118 10/01/08 300 298
290 Arlington Arms Apartments 4,134.66 7.000% 120 118 10/01/08 300 298
291 Barstow Plaza 3,809.53 7.850% 120 119 11/01/08 300 299
292 Fleur de Lis Apartments 3,965.67 8.320% 120 116 08/01/08 300 296
293 2602 Penny Lane 3,668.51 7.790% 120 118 10/01/08 300 298
294 3246 Navarre Avenue 3,380.88 7.500% 120 118 10/01/08 300 298
295 Tara Apartments 3,584.01 7.350% 240 238 10/01/18 240 238
296 Mark V Apartments 3,172.28 7.750% 120 118 10/01/08 300 298
297 Hallmark Apartments 3,116.47 8.110% 120 117 09/01/08 300 297
298 Mirage Apartments 3,010.09 8.060% 120 117 09/01/08 300 297
299 Main Street Studios 2,767.14 7.920% 120 117 09/01/08 360 357
300 Summertree Apartments 2,942.52 8.320% 120 116 08/01/08 300 296
301 Prestige State Bank 2,826.40 8.200% 120 118 10/01/08 300 298
302 Masonic Temple 2,655.15 7.800% 120 118 10/01/08 300 298
<PAGE>
<CAPTION>
Fee Simple/
# Property Name Defeasance Leasehold
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
231 Portsmouth Place Apartments L (2), D (7.5), O (0.5) Fee
232 70 Warren Avenue No Fee
233 Martinsville Plaza L (2), D (7.5), O (0.5) Fee
234 Route 66 Business World No Fee
235 Woodwinds Condominiums L (2), D (7.5), O (0.5) Fee
236 College Square Apartments L (2), D (7.5), O (0.5) Fee
237 Car Engineering Building No Fee
238 Executive Townhomes No Fee
239 Hartford Crossing Retail Plaza L (2), D (7.5), O (0.5) Fee
240 Cypress Plaza Shopping Center L (2), D (7.5), O (0.5) Fee
241 Sarasota Place Apartments No Fee
242 Clayton Forest Apartments L (2), D (7.5), O (0.5) Fee
243 Checker Auto Parts Store L (2), D (17.5), O (0.5) Fee
244 Southpointe Center L (2), D (9.5), O (0.5) Fee
245 Maple Court Apartments L (3.08), D (11.42), O (0.5) Fee
246 Crestwood MHP L (2), D (7.5), O (0.5) Fee
247 Hyde Park Place Apartments L (2.92), D (6.58), O (0.5) Fee
248 Allen Medical Office Building L (2), D (12.5), O (0.5) Fee
249 Canyon View Offices No Fee
250 Firehouse Square L (2), D (2.5), O (0.5) Fee
251 Plymouth Place Plaza L (2), D (7.5), O (0.5) Fee
252 Meridian Mobile Estates L (2), D (7.5), O (0.5) Fee
253 Country Mobile Estates L (2), D (12.5), O (0.5) Fee
254 Village Apartments No Fee
255 Ackels Mobile Home Park L (2), D (7.5), O (0.5) Fee
256 Redford Manor Apartments L (2), D (7.5), O (0.5) Fee
257 Doms Business Park No Fee
258 Bradfield Creek Townhomes No Fee
259 San Remo Apartments L (2), D (7.5), O (0.5) Fee
260 Consolidated Printing No Fee
261 Knightsbridge Apartments No Fee
262 Whispering Meadows No Fee
263 Buckingham Court Apartments L (2), D (7.5), O (0.5) Fee
264 Homestead Apartments L (2), D (7.5), O (0.5) Fee
265 4th Avenue West Estates L (2), D (12.5), O (0.5) Fee
266 Treaty Oaks Apartments No Fee
267 Wilshire Estates MHP L (2), D (12.5), O (0.5) Fee
268 Hollywood Video No Fee
269 5 Milk Street No Fee
270 Cardi Building No Fee
271 Boulevard of Chevy Chase Apartments L (2), D (7.5), O (0.5) Fee
272 10 McKinley Street No Fee
273 Londonaire Townhouses L (2), D (7.5), O (0.5) Fee
274 Heon Court Apartments No Fee
275 One Cameron Place Shopping Center No Fee
276 197 U.S. Route One No Fee
277 980 Forest Avenue No Fee
278 Chandler Crossing Apartments No Fee
279 Kingswood Place Apartments No Fee
280 4525-4535 McEwen Road No Fee
281 Doms Metroplex Park No Fee
282 Baxter Mills Apartments No Fee
283 Seven Eleven No Fee
284 3314 Mount Pleasant Apartments No Fee
285 Virginia Apartments No Fee
286 Pagewood Oval Apartments No Fee
287 Creekview Condominiums No Fee
288 Park Hill Apartments L (2), D (7.5), O (0.5) Fee
289 Amherst Gardens No Fee
290 Arlington Arms Apartments No Fee
291 Barstow Plaza No Fee
292 Fleur de Lis Apartments No Fee
293 2602 Penny Lane No Fee
294 3246 Navarre Avenue No Fee
295 Tara Apartments No Fee
296 Mark V Apartments No Fee
297 Hallmark Apartments No Fee
298 Mirage Apartments No Fee
299 Main Street Studios No Fee
300 Summertree Apartments No Fee
301 Prestige State Bank No Fee
302 Masonic Temple No Fee
<PAGE>
<CAPTION>
Interest
# Property Name Originator Accrual
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
231 Portsmouth Place Apartments Column Actual/360
232 70 Warren Avenue Column Actual/360
233 Martinsville Plaza Column Actual/360
234 Route 66 Business World Column Actual/360
235 Woodwinds Condominiums Column Actual/360
236 College Square Apartments Column Actual/360
237 Car Engineering Building Column Actual/360
238 Executive Townhomes Column Actual/360
239 Hartford Crossing Retail Plaza Column Actual/360
240 Cypress Plaza Shopping Center Column 30/360
241 Sarasota Place Apartments Column Actual/360
242 Clayton Forest Apartments Column Actual/360
243 Checker Auto Parts Store Column Actual/360
244 Southpointe Center Column 30/360
245 Maple Court Apartments Column Actual/360
246 Crestwood MHP Union Capital Actual/360
247 Hyde Park Place Apartments Column Actual/360
248 Allen Medical Office Building Column Actual/360
249 Canyon View Offices Column Actual/360
250 Firehouse Square Column Actual/360
251 Plymouth Place Plaza Column Actual/360
252 Meridian Mobile Estates Union Capital Actual/360
253 Country Mobile Estates Union Capital 30/360
254 Village Apartments Column Actual/360
255 Ackels Mobile Home Park Column Actual/360
256 Redford Manor Apartments Column Actual/360
257 Doms Business Park Column Actual/360
258 Bradfield Creek Townhomes Column Actual/360
259 San Remo Apartments Column Actual/360
260 Consolidated Printing Column Actual/360
261 Knightsbridge Apartments Column Actual/360
262 Whispering Meadows Column Actual/360
263 Buckingham Court Apartments Column Actual/360
264 Homestead Apartments Column Actual/360
265 4th Avenue West Estates Union Capital Actual/360
266 Treaty Oaks Apartments Column Actual/360
267 Wilshire Estates MHP Union Capital Actual/360
268 Hollywood Video Column Actual/360
269 5 Milk Street Column Actual/360
270 Cardi Building Column Actual/360
271 Boulevard of Chevy Chase Apartments Column Actual/360
272 10 McKinley Street Column Actual/360
273 Londonaire Townhouses Column Actual/360
274 Heon Court Apartments Column Actual/360
275 One Cameron Place Shopping Center Column Actual/360
276 197 U.S. Route One Column Actual/360
277 980 Forest Avenue Column Actual/360
278 Chandler Crossing Apartments Column Actual/360
279 Kingswood Place Apartments Column Actual/360
280 4525-4535 McEwen Road Column Actual/360
281 Doms Metroplex Park Column Actual/360
282 Baxter Mills Apartments Column Actual/360
283 Seven Eleven Column Actual/360
284 3314 Mount Pleasant Apartments Column Actual/360
285 Virginia Apartments Column Actual/360
286 Pagewood Oval Apartments Column Actual/360
287 Creekview Condominiums Column Actual/360
288 Park Hill Apartments Column Actual/360
289 Amherst Gardens Column Actual/360
290 Arlington Arms Apartments Column Actual/360
291 Barstow Plaza Column Actual/360
292 Fleur de Lis Apartments Column Actual/360
293 2602 Penny Lane Column Actual/360
294 3246 Navarre Avenue Column Actual/360
295 Tara Apartments Column Actual/360
296 Mark V Apartments Column Actual/360
297 Hallmark Apartments Column Actual/360
298 Mirage Apartments Column Actual/360
299 Main Street Studios Column Actual/360
300 Summertree Apartments Column Actual/360
301 Prestige State Bank Column Actual/360
302 Masonic Temple Column Actual/360
</TABLE>
(1A) The Mortgage Loans secured by 250 South Clinton Street, GATX Warehouse,
1001 and 1011 Airport Industrial Park, Northeast Industrial Building # 21,
507 Plum Street, Zanesville, Northeast Industrial Building # 8, Northeast
Industrial Building # 22, 4, 5 & 8 Marway Circle, Marysville and One
Clinton Square, respectively, are cross-collateralized and cross-defaulted.
<PAGE>
(1B) The Mortgage Loans secured by The Center at Rancho Niguel and The Edwards
Center at Rancho Niguel, respectively, are cross-collateralized and
cross-defaulted.
(1C) The Mortgage Loans secured by Rivertree Court Shopping Center, Woodland
Heights Shopping Center, Winnetka Commons Shopping Center, Berwyn Plaza
Shopping Center and Walgreen's Store, respectively, are
cross-collateralized and cross-defaulted. Such Mortgage Loans require
payments of interest only for their entire terms.
(1D) The Mortgage Loans secured by Blue Ash Portfolio, Springdale Office Center,
Executive Center East and McDonald's, respectively, are
cross-collateralized and cross-defaulted.
(1E) The Mortgage Loans secured by Storage Box / Stowaway Storage and Maplewood
Mobile Estates, respectively, are cross-collateralized and cross-defaulted.
(1F) The Mortgage Loans secured by Run in Foods DP #4, Run in Foods Unit DP #7,
Run in Foods #401, Run in Foods #406, Run in Foods #402, Run in Foods #403,
Run in Foods #404,
Run in Foods Unit #410, respectively, are cross-collateralized and
cross-defaulted. The appraised value of each such Mortgage Loan includes an
estimated enterprise value and an appraised real estate value.
The aggregate of the appraised real estate values (including FF&E) of such
Mortgage Loans is $12,240,000.
(1G) The Mortgage Loans secured by Super 8-Midtown, Super 8-East and Super
8-West, respectively, are cross-collateralized and cross-defaulted.
(1H) The Mortgage Loans secured by Mission Industrial Park and Jurupa Business
Park, respectively, are cross-collateralized and cross-defaulted.
(1I) The Mortgage Loans secured by St. Charles Apartments and St. James
Apartments, respectively, are cross-collateralized and cross-defaulted.
(2) Embassy Crossing has an interest only period of 24 months from origination
and thereafter is scheduled to amortize over 336 months with the payment
presented reflecting the amount due during the amortization term.
(3) Green's Corner Shopping Center has an interest only period of 24 months
from origination and thereafter is scheduled to amortize over 336 months
with the payment presented reflecting the amount due during the
amortization term.
(4) Windlands Shopping Center has an interest only period of 24 months from
origination and thereafter is scheduled to amortize over 336 months with
the payment presented reflecting the amount due during the amortization
term.
(5) The Mortgage Loan secured by Rite-Aid of Maine, Inc. provides for an
increase in the amount of the monthly payment to $24,426.87 in July 2008.
The Underwritten DSCR presented herein with respect to the mortgage loan is
based on the monthly payment in effect as of December 1, 1998.
(6) Assumes a Cut-off Date of December 1, 1998.
(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>
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO
MORTGAGE FILE DELIVERY
B-2-1
<PAGE>
DLJ Commercial Mortgage Corp. Exhibit B-2 Schedule of Exceptions
Commercial Mortgage Pass Through Certificates
Series 1998-CF2
<TABLE>
<CAPTION>
LOAN ID LOAN NAME DOC TYPE EXCEPTION COMMENT
<S> <C> <C> <C> <C>
361998CF2 THE MEADOWS I & NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
371998CF2 ROSEMONT TERRAC NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
1011998CF2 PLAZA AT SUNRIS NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
1101998CF2 FLAMINGO WEST C NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
1121998CF2 BCH OFFICE BLDG NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
1211998CF2 DURANGO PLAZA R NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
1721998CF2 PORTFOLIO NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
1731998CF2 THUNDER HOLLOW NOTE Endorsement(s) Is Missing/incorrect ENDORS. (COLUMN TO BLANK) IS A COPY
1831998CF2 GREEN'S CORNER NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
1911998CF2 HOLIDAY INN DAN NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
1961998CF2 EMBASSY CROSSIN NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2021998CF2 CHANIN BUILDING NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2031998CF2 HOLIDAY INN - Y NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2131998CF2 710 AMSTERDAM A NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2171998CF2 MIDFIELD PARK NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2191998CF2 SUPER 8 - NEW M NOTE Endorsement(s) Is Missing/incorrect COLUMN TO BLANK, NOT EXECUTED
2201998CF2 SUPER 8 LAS VEG NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2221998CF2 CHRISTINA HILTO NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2271998CF2 MILLER APTS NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2281998CF2 AMERICAN POOL 1 NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
2751998CF2 CANYON VIEW OFF NOTE Endorsement(s) Is Missing/incorrect MISSING COLUMN TO BLANK
</TABLE>
<PAGE>
EXHIBIT C
LETTER OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITORY
C-1
<PAGE>
BOOK-ENTRY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)
(WITHOUT OWNER OPTION TO REDEEM)/
OTHER ASSET-BACKED SECURITIES/AND PASS-THROUGH CERTIFICATES
Letter of Representations
[To be Completed by Issuer and Agent]
DLC Commercial Mortgage Corp.
--------------------------------------------
[Name of Issuer]
Norwest Bank Minnesota, National Association
--------------------------------------------
[Name of Agent]
November 30, 1998
-----------------
[Date]
Attention: General Counsel's Office
The Depositary Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
---------------------------------------------------------------
Certificates Series 1998-CF-2, Class S; Class A-1A; Class A-1B;
---------------------------------------------------------------
Class A2; Class A-3; Class A-4; Class B-1; Class B-2
---------------------------------------------------------------
[Issue Description]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Agent will act as
trustee, paying agent, fiscal agent, or other such agent of Issuer with respect
to the Securities pursuant to a Pooling and Servicing Agreement dated as of
December 1, 1998 (the "document"), Donaldson, Lufkin & Jenrette Securities
Corp. is distributing the Securities through The Depository Trust Company
("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC,
and to act in accordance with its Rules with respect to the Securities, Issuer
and Agent make the following representations to DTC:
1. Prior to closing on the Securities on December 3, 1998, there shall
be deposited with DTC one Security certificate registered in the name of
DTC's nominee, Cede & Co., (1)
<PAGE>
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders specifying the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner set forth in
the preceding Paragraph. Notices to DTC pursuant to this Paragraph and notices
of other corporate actions by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-1093 or (212) 709-1094, and receipt of such notices
shall be confirmed by telephoning (212) 709-6884. Notices to DTC pursuant to the
above by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004-2695
6. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
7. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $1,000(5) (or other minimum authorized denomination if less than
$1,000(5) payable on each payment date allocated as to the interest and
principal portions thereof preferably 5, but not less than 2, business days
prior to such payment date, or in accordance with the existing arrangements
between Agent and DTC. Such notices, which shall also contain the current pool
factor, any special adjustments to principal/interest rates (e.g., adjustments
due to deferred interest or shortfall), and Agent contact's name and telephone
number, shall be sent by telecopy to DTC's Dividend Department at (212)
709-1723, or if by mail or by any other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
8. [The interest accrual period is record date to record date.]
9. Issuer or Agent shall provide a written notice of interest payment
information to a standard interest announcement service subscribed to by DTC as
soon as the information is available. In the unlikely event that no such service
exists, Issuer or Agent shall provide such notice directly to DTC
electronically, as previously arranged by Issuer or Agent and DTC, as soon as
the information is available. If electronic transmission is not available,
absent any other arrangements between Issuer or Agent and DTC, such information
should be sent by telecopy to DTC's Dividend Department at (212) 709-1723 or
(212) 709-1686, and receipt of such notices shall be confirmed by telephoning
(212) 709-1270. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
<PAGE>
10. Issuer or Agent shall provide CUSIP numbers for each issue for which
payment is being sent, as well as the dollar and cent amount of the payment for
each issue to DTC, no later than noon (Eastern Time) on the payment date.
11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. (6) Absent any other arrangements between
Issuer or Agent and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066-026776
12. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
13. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the first
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
14. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
15. In the event of a Full reduction, or any other similar transaction
(e.g., tender made and accepted in response to Issuer's or Agent's invitation)
necessitating a reduction in the aggregate principal amount of Securities
outstanding or an advance refunding of part of the Securities outstanding, DTC,
in its discretion: (a) may request Issuer or Agent to issue and authenticate a
new Security certificate; or (b) may make an appropriate notation on the
Security certificate indicating the date and amount of such reduction in
principal except in the case of final maturity, in which case the certificate
will be presented to Issuer or Agent prior to payment, if required.
16. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, (7) Issuer or Agent
shall (8) notify DTC of the availability of certificates. In
<PAGE>
which represents 100% of the principal (2) amounts of such Securities. If,
however, the aggregate principal (2) amount of any Class exceeds $200 million,
one certificate will be issued with respect to each $200 million of principal
(2) amount and an additional certificate will be issued with respect to any
remaining principal (2) amount. Each Security certificate shall bear the
following legend:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to (3) or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment 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.
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders of
the Securities, Issuer or Agent shall establish a record date for such purposes
(with no provision for revocation of consents or votes by subsequent holders)
and shall, to the extent possible, send notice of such record date to DTC not
less than 15 calendar days in advance of such record date. Notices to DTC
pursuant to this Paragraph by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-6896 or (212) 709-6897, and receipt of such notices
shall be confirmed by telephoning (212) 709-6870. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to DTC's
Reorganization Department as indicated in Paragraph 5.
4. In the event of (4) Agent shall send a notice to DTC the date such notice
is to be mailed to Security holders or published (the "Publication Date"). Such
notice shall be sent to DTC by a secure means (e.g., legible telecopy,
registered or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before or, if possible, two business days before
the Publication Date. Agent shall forward such notice either in a separate
secure transmission for each CUSIP number or in a secure transmission for
multiple CUSIP numbers (if applicable) which includes a manifest or list of each
CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) Notices to DTC pursuant to this Paragraph by
telecopy shall be sent to DTC's Call Notification Department at (516) 227-4039
or (516) 227-4190. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party shall
telephone (516) 227-4070. Notices to DTC pursuant to this Paragraph by mail or
by any other means shall be sent to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange
certificates in appropriate amounts, as required by DTC and
others. (9) ____________________________________________________________
17. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving
reasonable notice to Issuer or Agent (at which time DTC will confirm
with Issuer or Agent the aggregate principal amount of Securities
outstanding). Under such circumstances, at DTC's request Issuer and
Agent shall cooperate fully with DTC by taking appropriate action to
make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds
on behalf of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts together shall constitute but one
and the same instrument.
20. This Letter of Representations is governed by, and shall be
construed in accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated
into this Letter of Representations:
(10) ____________________________________________________________________
___________________________________________________________________________
<TABLE>
<S> <C>
Notes: Very truly yours,
- ------
A. If there is an Agent (as defined in this
Letter of Representations), Agent as well as
Issuer must sign this Letter. If there is no
Agent, in signing this Letter Issuer itself
undertakes to perform all of the obligations DLJ Commercial Mortgage Corp.
set forth herein. -----------------------------
(Issuer)
B. Schedule B contains statements that DTC
believes accurately describe DTC, the method
of effecting book-entry transfers of securities
distributed through DTC, and certain related By:
matters. --------------------------------
(Authorized Officer's Signature)
Norwest Bank Minnesota, National Association
--------------------------------------------
(Agent)
By:
--------------------------------
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
---------------------------------
cc: Underwriter
underwriter's Counsel
</TABLE>
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others. (9)
17. DTC may discontinue providing its services as securities depository with
respect to the Securities at any time by giving reasonable notice to Issuer or
Agent (as which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on behalf
of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
20. This Letter of Representations is governed by, and shall be construed in
accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated into this
Letter of Representations:
(10)
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Notes: Very truly yours,
- ------
A. If there is an Agent (as defined in
this Letter of Representations), Agent
as well as Issuer must sign this Letter.
If there is no Agent, in signing this
Letter Issuer itself undertakes to
perform all of the obligations set
forth herein. DLJ Commercial Mortgage Corp.
-----------------------------------
(Issuer)
B. Schedule B contains statements that
DTC believes accurately describe DTC,
the method of effecting book-entry
transfers of securities distributed
through DTC, and certain related
matters.
By: -----------------------------------
(Authorized Officer's Signature)
Norwest Bank Minnesota, National Association
--------------------------------------------
(Agent)
/s/ Leslie A. Gaskill
By: --------------------------------------
(Authorized Officer's Signature)
Leslie A. Gaskill
Vice President
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
/s/ Richard B. Nesson
By: ----------------------------
cc: Underwriter
Underwriter's Counsel
<PAGE>
(1) the principal amount or notional amount of each
(2) or notional
(3) Trustee
(4) retirement of all outstanding Securities (a "full reduction"),
(5) principal or notional amount
(6) In accordance with existing agreement between Agent and DTC, provided
that in connection with the final payment of the Securities, the Securities of
each class are first presented and surrendered to Agent.
(7) or in the event holders of the Securities make such determination,
(8) , after notification of such determination,
(9) For such purposes, the Agent may conclusively rely on a Securities
Position Listing provided by DTC as to the DTC Participants with respect to the
Securities.
(10) 22. There will be no case in which a partial retirement or an
invitation to tender the Securities will occur.
23. DTC is hereby authorized to provide, and hereby agrees to provide
to Issuer and the Agent for its customary fee, Securities Position
Listings of DTC Participants with respect to the Securities from time to
time at the request of Issuer or the Agent.
24. DTC will take any action permitted to be taken by a holder of a
Security under the Document only at the direction of one or more of its
participating organizations ("DTC Participants") to whose account with
DTC an undivided interest in the Security is credited. DTC will take
any such action that it is so directed to take only with respect to the
portion of the Security represented by the undivided interest therein of
the DTC Participant(s) giving such direction. DTC may take conflicting
actions with respect to the portion of the Security represented by other
undivided interests therein to the extent that such actions are taken on
behalf of DTC Participants whose holdings include such undivided
interests.
25. Schedule C attached hereto ("Representations for
Deposit/Withdrawal at Custodian") is hereby incorporated into and made a
part of this Letter of Representations.
26 Schedule D attached hereto ("Representations for ERISA-Restricted
Securities") is hereby incorporated into and made a part of this Letter
of Representations.
27. References to Trustee herein or in any schedule hereto shall be
deemed to be references to Agent.
<PAGE>
SCHEDULE A
----------
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates,
Series, 1998-CF2
<TABLE>
<CAPTION>
Class CUSIP Number Principal Amount Maturity Date(1) Interest Rate(2)
- ----- ----------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Class S, No. 1 23322B CX 4 $200,000,000(a) October 2023 0.8514%
Class S, No. 2 23322B CX 4 $200,000,000 October 2023 0.8514%
Class S, No. 3 23322B CX 4 $200,000,000 October 2023 0.8514%
Class S, No. 4 23322B CX 4 $200,000,000 October 2023 0.8514%
Class S, No. 5 23322B CX 4 $200,000,000 October 2023 0.8514%
Class S, No. 6 23322B CX 4 $107,680,439 October 2023 0.8514%
Class A-1A, No. 1 23322B CY 2 $200,000,000 June 2008 5.8800%
Class A-1A, No. 2 23322B CY 2 $ 18,044,000 June 2008 5.8800%
Class A-1B, No. 1 23322B CZ 9 $200,000,000 October 2008 6.2400%
Class A-1B, No. 2 23322B CZ 9 $200,000,000 October 2008 6.2400%
Class A-1B, No. 3 23322B CZ 9 $179,485,000 October 2008 6.2400%
Class A-2 23322B DA 3 $ 55,384,000 November 2008 6.4800%
Class A-3 23322B DB 1 $ 60,923,000 November 2008 6.6500%(b)
Class A-4 23322B DP 0 $ 13,846,000 November 2008 6.9000%(b)
Class B-1 23322B DC 9 $ 41,538,000 November 2008 7.0663%(b)
Class B-2 23322B DD 7 $ 16,615,000 November 2008 7.0663%(b)
</TABLE>
- -------------------------------
(1) If the stated date is not a business day, the maturity date is the business
day immediately following the stated date.
(2) Approximate
(a) Notional Amount
(b) Subject to change
<PAGE>
Schedule B
--------------
SAMPLE OFFICIAL STATEMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
------------------------------------
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depositary Trust Company ("DTC"), New York, NY, will
act as securities depository for the securities (the "Securities"). The
Securities will be issued as fully-registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). One fully-registered Security
certificate will be issued for [each issue of] the Securities, [each] in the
aggregate principal amount of such issue, and will be deposited with DTC. [If,
however, the aggregate principal amount of [any] issue exceeds $200 million, one
certificate will be issued with respect to each $200 million of principal amount
and an additional certificate will be issued with respect to any remaining
principal amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made
by or through Direct Participants, which will receive a credit for the
Securities on DTC's records. The ownership interest of each actual purchaser
of each Security ("Beneficial Owner") is in turn to be recorded on the Direct
and Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are expected to
receive written confirmation from DTC of their purchase, but Beneficial Owners
are expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the Direct
or Indirect Participant through which the Beneficial Owner entered into the
transaction. Transfers of ownership interests in the Securities are to be
accomplished by entries made on the books of Participants action on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interest in Securities, except in the event that
use of the book-entry system for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
-1-
<PAGE>
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer
as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to
Cede & Co., as nominee of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent, on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers
in bearer form or registered in "street name," and will be the responsibility
of such Participant and not of DTC, Agent, or Issuer, subject to any statutory
or regulatory requirements as may be in effect from time to time. Payment of
principal and interest to Cede & Co. is the responsibilty of Issuer or Agent,
disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and the disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to Agent [or
Tender/Remarketing Agent], and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in the
Securities, on DTC's records, to Agent [or Tender/Remarketing Agent]. The
requirement for physical delivery of Securities in connection with an optional
tender or a mandatory purchase will be deemed satisfied when the ownership
rights in the Securities are transferred by Direct Participants on DTC's
records and followed by a book-entry credit of tendered Securities to Agent
[or Tender/Remarketing Agent's] DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to
Issuer or Agent. Under such circumstances, in the event that a successor
securities depository is not obtained, Security certificates are required to
be printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
<PAGE>
[LOGO]
Rider Amending DTC Letter of Representation - BEO Collateralized Mortgage
Obligations (CMO) Without Owner Option to Redeem/Other Asset-Backed Securities
/and Pass-Through Certificates
DTC's Reorganization and Dividend Departments have relocated to 55 Water Street.
Following are revisions to the Letter of Representations, including current
addresses, telephone numbers, and telecopy numbers.
Paragraph 3 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-6896 and (212) 709-6897 (212) 855-5181 and (212) 855-5182
The confirmation number (formerly (212) 709-6870) is now (212) 855-5202.
Paragraph 5 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Number:
(212) 709-1093 and (212) 709-1094 (212) 855-5278
The confirmation number (formerly (212) 709-6884) is now (212) 855-5280.
The current address is: Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
Paragraph 7 of the Letter of Representations:
Old Telecopier Number: Current Telecopier Number:
(212) 709-1723 (212) 855-4555
The current address is: Manager; Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
Paragraph 9 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-1723 and (212) 709-1686 (212) 855-4555 and (212) 855-4556
The confirmation number (formerly (212) 709-1270) is now (212) 855-4550.
The current address for Paragraph 9 is the same as that listed above, for
Paragraph 7.
[4/98]
<PAGE>
The following additional text relates to Paragraph 10 of the Letter of
Representations:
Such information shall be conveyed by automated notification. If the
circumstances prevent the funds being paid to Cede & Co., as nominee of DTC, by
2:30 p.m. ET from equaling the dollar amount associated with detail payments by
12:00 noon ET, Issuer or Agent must provide CUSIP-level reconciliation to DTC no
later than 2:30 p.m. ET. Reconciliation may be provided by automated means or in
written format.
The following additional text relates to Paragraph 11 of the Letter of
Representations:
Issuer must remit funds to Agent by 1:00 p.m. ET on each payment date, or at
such earlier time as required by Agent to guarantee timely credit to the
Dividend Deposit Account of Cede & Co.
The following additional text relates to Paragraph 12 of the Letter of
Representations:
Issuer must remit free funds to Agent by 1:00 p.m. ET on each payment date, or
at such earlier time as required by Agent to guarantee timely credit to the
Redemption Deposit Account of Cede & Co. Issuer or Agent shall deliver
CUSIP-level detail regarding such payments to DTC no later than 2:30 p.m. ET on
each payment date.
The following additional text relates to Paragraph 13 of the Letter of
Representations:
Issuer must remit free funds to Agent by 1:00 p.m. ET on each payment date, or
at such earlier time as required by Agent to guarantee timely credit to the
Reorganization Deposit Account of Cede & Co. Issuer or Agent shall deliver
CUSIP-level detail regarding such payments to DTC no later than 2:30 p.m. ET on
each payment date.
-2-
<PAGE>
Schedule C
[LOGO]
REPRESENTATIONS FOR DEPOSIT/WITHDRAWAL AT CUSTODIAN ("DWAC")
to be included in DTC Letter of Representations
-----------------------------------------------
The Security certificates(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives an
instruction originated by a Participant through DTC's Deposit/Withdrawal at
Custodian ("DWAC") system to increase the Participant's account by a specified
number of shares, units, or obligations (a "Deposit Instruction"), Agent shall,
before 6:30 p.m. (Eastern Time) that day, either approve or cancel the Deposit
Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives an
instruction originated by a Participant through the DWAC system to decrease the
Participant's account by a specified number of shares, units, or obligations (a
"Withdrawal Instruction"), Agent shall, at or before 6:30 p.m. (Eastern Time)
that day, either approve or cancel the Withdrawal Instruction through the DWAC
system.
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated security on registration of transfer to the name of Cede & Co. for
the quantity of securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.
<PAGE>
Schedule D
[LOGO]
REPRESENTATIONS FOR ERISA-RESTRICTED SECURITIES
to be included in DTC Letter of Representations
-----------------------------------------------
Issuer and Agent recognize that DTC does not in any way undertake to,
and shall not have any responsibility to, monitor or ascertain whether a
transfer of Securities could give rise to a transaction prohibited or not
otherwise permissible under the Employee Retirement Income Security Act of 1974
or under Section 4975 of the Internal Revenue Code of 1986. Issuer and Agent
acknowledge that: a) so long as Cede & Co. is the sole record owner of the
Securities, it shall be entitled to all voting rights in respect thereof and to
receive the full amount of all principal, premium, if any, and interest payable
with respect thereto; and b) DTC shall treat any DTC Participant having
Securities credited to its DTC accounts as entitled to the full benefits of
ownership of such Securities even if the crediting of such Securities to the DTC
accounts of such Participant results from transfers or failures to transfer in
violation of such laws. (The treatment by DTC of the effects of the crediting by
it of Securities to the accounts of DTC Participants shall not affect the rights
of Issuer or purchasers, sellers, or holders of Securities against any DTC
Participant.)
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others. ________________________ (9)
17. DTC may discontinue providing its services as securities depository with
respect to the Securities at any time by giving reasonable notice ot Issuer or
Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
20. This Letter of Representations is governed by, and shall be construed
in accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated into
this Letter of Representations:
_______________________________________________________________________ (10)
_______________________________________________________________________
Notes: Very truly yours,
A. If there is an Agent (as
defined in this Letter of
Representations), Agent as
well as Issuer must sign DLJ Commercial Mortgage Company
this Letter. If there is no -----------------------------------
Agent, in signing this (Issuer)
Letter Issuer itself
undertakes to perform all of By:
the obligations set forth --------------------------------
herein. (Authorized Officer's Signature)
B. Schedule B contains
statements that DTC believes
accurately describe DTC, the
method of effecting book- Norwest Bank Minnesota, National
entry transfers of securities Association
distributed through DTC, and -----------------------------------
certain related matters. (Agent)
By: /s/ Leslie A. Gaskill
--------------------------------
(Authorized Officer's Signature)
Leslie A. Gaskill
Vice President
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Richard B. Nesson
-------------------------
CC: Underwriter
Underwriter's Counsel
-5-
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others. ________________________ (9)
17. DTC may discontinue providing its services as securities depository with
respect to the Securities at any time by giving reasonable notice ot Issuer or
Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
20. This Letter of Representations is governed by, and shall be construed
in accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated into
this Letter of Representations:
_______________________________________________________________________ (10)
_______________________________________________________________________
Notes: Very truly yours,
A. If there is an Agent (as
defined in this Letter of
Representations), Agent as
well as Issuer must sign DLJ Commercial Mortgage Company
this Letter. If there is no -----------------------------------
Agent, in signing this (Issuer)
Letter Issuer itself
undertakes to perform all of By:
the obligations set forth --------------------------------
herein. (Authorized Officer's Signature)
B. Schedule B contains
statements that DTC believes
accurately describe DTC, the
method of effecting book- Norwest Bank Minnesota, National
entry transfers of securities Association
distributed through DTC, and -----------------------------------
certain related matters. (Agent)
By: /s/ Leslie A. Gaskill
--------------------------------
(Authorized Officer's Signature)
Leslie A. Gaskill
Vice President
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Richard B. Nesson
-------------------------
CC: Underwriter
Underwriter's Counsel
-5-
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others. ________________________ (9)
17. DTC may discontinue providing its services as securities depository with
respect to the Securities at any time by giving reasonable notice ot Issuer or
Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
20. This Letter of Representations is governed by, and shall be construed
in accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated into
this Letter of Representations:
_______________________________________________________________________ (10)
_______________________________________________________________________
Notes: Very truly yours,
A. If there is an Agent (as
defined in this Letter of
Representations), Agent as
well as Issuer must sign DLJ Commercial Mortgage Company
this Letter. If there is no -----------------------------------
Agent, in signing this (Issuer)
Letter Issuer itself
undertakes to perform all of By:
the obligations set forth --------------------------------
herein. (Authorized Officer's Signature)
B. Schedule B contains
statements that DTC believes
accurately describe DTC, the
method of effecting book- Norwest Bank Minnesota, National
entry transfers of securities Association
distributed through DTC, and -----------------------------------
certain related matters. (Agent)
By: /s/ Leslie A. Gaskill
--------------------------------
(Authorized Officer's Signature)
Leslie A. Gaskill
Vice President
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Richard B. Nesson
-------------------------
CC: Underwriter
Underwriter's Counsel
-5-
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
D-1-1
<PAGE>
EXHIBIT D-1
FORM OF MASTER 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-CF2
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 December 1, 1998 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, the undersigned as the master servicer
(in such capacity, the "Master Servicer") and as special servicer (in such
capacity, the "Special Servicer") and you as trustee (in such capacity, the
"Trustee") and REMIC administrator, the undersigned as Master 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.
Property Name:
Property Address:
Control 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)
D-1-1
<PAGE>
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 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.
BANC ONE MORTGAGE CAPITAL
MARKETS, LLC
as Master 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-CF2
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 December 1, 1998 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, the undersigned as master servicer (in
such capacity, the "Master Servicer") and special servicer (in such capacity,
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.
Property Name:
Property Address:
Control 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.
BANC ONE MORTGAGE CAPITAL
MARKETS, LLC
as Special Servicer
By: _________________________________
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E-1
FORM OF TRUSTEE REPORT
E-1-1
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
DISTRIBUTION DATE STATEMENT
Table of Contents
STATEMENT SECTIONS PAGE(s)
- ------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property Stratification Tables 7 - 9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specially Serviced Loan Detail 14 - 15
Modified Loan Detail 16
Liquidated Loan Detail 17
<TABLE>
<CAPTION>
Underwriter Master Servicer Special Servicer
<S> <C> <C>
Donaldson, Lufkin & Jenrette Banc One Mortgage Capital Markets, LLC Banc One Mortgage Capital Markets, LLC
Securities Corporation 1717 Main Street, 14th Floor 1717 Main Street, 14th Floor
277 Park Avenue Dallas, TX 75201 Dallas, TX 75201
New York, NY 10172
Contact: N. Dante LaRocca Contact: Paul G. Smyth Contact: Paul G. Smyth
Phone Number: (212) 892-3000 Phone Number: (214) 290-2505 Phone Number: (214) 290-2505
</TABLE>
This report has been compiled from information provided to Norwest by
various third parties, which may include the Servicer, Master Servicer,
Special Servicer and others. Norwest has not independently confirmed the
accuracy of information received from these third parties and assumes no
duty to do so. Norwest expressly disclaims any responsibility for the
accuracy or completeness of information furnished by third parties.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 1 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Certificate Distribution Detail
<TABLE>
<CAPTION>
Realized
Loss/
Additional
Trust Total Current
Pass-Through Original Beginning Principal Interest Prepayment Fund Distri- Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Penalties Expenses bution Balance Level(1)
- ----- ----- ---- ------- ------- ------------ ------------ --------- -------- ------ ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-1B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-5 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-6 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-I 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-II 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-III 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Penalties Distribution Amount
----- ----- ---- ------ ------ ------------ --------- ------------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
(1) Calculated by taking (A) the sum of the ending certificate balance of
all classes less (B) the sum of (i) the ending certificate balance of the
designated class and (ii) the ending certificate balance of all classes
which are not subordinate to the designated class and dividing the result by
(A).
Copyright 1997, Norwest Bank Minnesota, N.A. Page 2 of 17
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Certificate Factor Detail
<TABLE>
<CAPTION>
Realized Loss/
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Penalties Fund Expenses Balance
----- ----- ------- ------------ ------------ --------- ------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
A-1B 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
A-2 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
A-3 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
A-4 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
B-1 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
B-2 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
B-3 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
B-4 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
B-5 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
B-6 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
C 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
D 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
R-I 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
R-II 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
R-III 0.00000000 0.00000000 0.0000000 0.0000000 0.0000000 0.0000000
</TABLE>
<TABLE>
<CAPTION>
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Penalties Amount
----- ----- ------ ------------ --------- ------
<S> <C> <C> <C> <C> <C>
S 0.00000000 0.00000000 0.00000000 0.00000000
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 3 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Reconciliation Detail
<TABLE>
<CAPTION>
Advance Summary Servicing Fee Breakdowns
<S> <C> <C> <C>
P & I Advances Outstanding 0.00 Current Period Accrued Servicing Fees 0.00
Servicing Advances Outstanding 0.00 Less Delinquent Master Servicing Fees 0.00
Less Reductions Master to Servicing Fees 0.00
Reimbursement for Interest on Advances 0.00 Plus Master Servicing Fees for Delinquent
paid from general collections Payments Received 0.00
Plus Adjustments for Prior Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
</TABLE>
Certificate Interest Reconciliation
<TABLE>
<CAPTION>
Net
Aggregate Distributable Remaining Unpaid
Accrued Prepayment Distributable Certificate Additional Distributable
Certificate Interest Certificate Interest Trust Fund Interest Certificate
Class Interest Shortfall Interest Adjustment Expenses Distribution Interest
- ----- -------- --------- -------- ---------- -------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C>
S 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-6 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 4 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Other Required Information
Available Distribution Amount 0.00
Original Number of Loans 0
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance of Loans 0.00
Aggregate Amount of Master Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Trust Fund Expenses 0.00
- --------------------------------------------------------------------------------
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00
Appraisal Reduction Amount
Appraisal Date Appraisal
Loan Reduction Reduction
Number Amount Effected
------ ------ --------
Total
Copyright 1997, Norwest Bank Minnesota, N.A. Page 5 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Rating Detail
<TABLE>
<CAPTION>
Original Ratings Current Ratings (1)
----------------------------------- -----------------------------------
Class CUSIP DCR FITCH MOODY'S S&P DCR FITCH MOODY'S S&P
----- ----- --- ----- ------- --- --- ----- -------- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
S
A-1A
A-1B
A-2
A-3
A-4
B-1
B-2
B-3
B-4
B-5
B-6
C
D
</TABLE>
NR - Designates that the class was not rated by the above agency at the
time of original issuance.
X - Designates that the above rating agency did not rate any classes in
this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any
particular rating agency, no request has been made subsequent to issuance to
obtain rating information, if any, from such rating agency. The current
ratings were obtained directly from the applicable rating agency within 30
days of the payment date listed above. The ratings may have changed since
they were obtained. Because the ratings may have changed, you may want to
obtain current ratings directly from the rating agencies.
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
(312) 368-3100
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
(212) 908-0500
Moody's Investors Service
99 Church Street
New York, New York 10007
(212) 553-0300
Standard & Poor's Rating Services
26 Broadway
New York, New York 10004
(212) 208-8000
Copyright 1997, Norwest Bank Minnesota, N.A. Page 6 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Current Mortgage Loan and Property Stratification Tables
Scheduled Balance
<TABLE>
<CAPTION>
Scheduled # of Scheduled % of Weighted
Balance Loans Balance Agg. Bal WAM(2) WAC Avg DSCR(1)
------- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
State (3)
<TABLE>
<CAPTION>
# of Scheduled % of Weighted
State Props. Balance Agg. Bal WAM(2) WAC Avg DSCR(1)
----- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 7 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Current Mortgage Loan and Property Stratification Tables
Debt Service Coverage Ratio
<TABLE>
<CAPTION>
Debt Service # of Scheduled % of Weighted
Coverage Ratio Loans Balance Agg. Bal WAM(2) WAC Avg DSCR(1)
-------------- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
Note Rate
<TABLE>
<CAPTION>
Note # of Scheduled % of Weighted
Rate Loans Balance Agg. Bal WAM(2) WAC Avg DSCR(1)
---- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
Property Type (3)
<TABLE>
<CAPTION>
Property # of Scheduled % of Weighted
Type Props. Balance Agg. Bal WAM(2) WAC Avg DSCR(1)
-------- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
Seasoning
<TABLE>
<CAPTION>
# of Scheduled % of Weighted
Seasoning Loans. Balance Agg. Bal WAM(2) WAC Avg DSCR(1)
-------------- ------ ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
See footnotes on last page of this section.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 8 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Current Mortgage Loan and Property Stratification Tables
Anticipated Remaining Term (ARD and Balloon Loans)
<TABLE>
<CAPTION>
Anticipated Remaining # of Scheduled % of Weighted
Term (2) Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
------- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
Remaining Stated Term (Fully Amortizing Loans)
<TABLE>
<CAPTION>
Remaining Stated # of Scheduled % of Weighted
Term Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
------- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
Remaining Amortization Term (ARD and Balloon Loans)
<TABLE>
<CAPTION>
Remaining Amortization # of Scheduled % of Weighted
Term Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
------- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
Age of Most Recent NOI
<TABLE>
<CAPTION>
Age of Most # of Scheduled % of Weighted
Recent NOI Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
------- ----- ------- -------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
(1) Debt Service Coverage Ratios are calculated as described in the prospectus,
values are updated periodically as new NOI figures become available from
borrowers on an asset level. The Trustee makes no representations as to the
accuracy of the data provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the related
mortgage loan as disclosed in the offering document.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 9 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
MORTGAGE LOAN DETAIL
<TABLE>
<CAPTION>
Anticipated Neg.
Loan Property Interest Principal Gross Repayment Maturity Amort
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N)
- ------ ---- --------- ---- ----- -------- ---------- ------- ---------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Totals:
Beginning Ending Paid Appraisal Appraisal Res. Mod.
Loan Scheduled Scheduled Thru Reduction Reduction Strat. Code
Number Balance Balance Date Date Amount (2) (3)
- ------ ---------- ---------- ----- ---------- ---------- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
<TABLE>
<CAPTION>
(1) Property Type Code (2) Resolution Strategy Code (3) Modification Code
---------------------- --------------------------- --------------------
<S> <C> <C>
MF - Multi-Family OF - Office 1 - Modification 7 - REO 1 - Maturity Date Extension
RT - Retail MU - Mixed Use 2 - Foreclosure 8 - Resolved 2 - Amortization Change
HC - Health Care LO - Lodging 3 - Bankruptcy 9 - Pending Return 3 - Principal Write-Off
IN - Industrial SS - Self Storage 4 - Extension to Master Servicer 4 - Combination
WH - Warehouse OT - Other 5 - Note Sale 10 - Deed in Lieu Of
MH - Mobile Home Park 6 - DPO Foreclosure
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 10 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Principal Prepayment Detail
<TABLE>
<CAPTION>
Principal Prepayment Amount Prepayment Penalties
--------------------------- --------------------
Loan Number Offering Document
Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenace Premium
- ------------ ------------------ ---------------- ------------------- ------------------- ------------------------
<S> <C> <C> <C> <C> <C>
Totals
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 11 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Historical Detail
<TABLE>
<CAPTION>
Delinquencies Prepayments Rate and Maturities
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications Curtailments Payoff Next Weighted Ag. WAM
Date # Balance # Balance # Balance # Balance # Balance # Balance # Amount # Amount Coupon Remit
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 12 of 17
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Delinquency Loan Detail
<TABLE>
<CAPTION>
Offering #of Current Outstanding Status of Resolution
Document Months Paid Through P&I P&I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances** Loan (1) Code (2) Transfer Date Date
- ----------- --------------- ------- ------------ -------- ----------- -------- ---------- ------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
<TABLE>
<CAPTION>
Current Outstanding
Servicing Servicing REO
Loan Number Advances Advances Bankruptcy Date Date
- ----------- --------- ----------- --------------- ------
<S> <C> <C> <C> <C>
Totals
</TABLE>
(1) Status of Mortgage Loan
---------------------------
A - Payment Not Received 2 - Two Months Delinquent
But Still in Grace Period 3 - Three Or More Months Delinquent
B - Late Payment But Less 4 - Assumed Scheduled Payment
Than 1 Month Delinquent (Performing Matured Balloon)
0 - Current 7 - Foreclosure
1 - One Month Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed in Lieu Of
6 - DPO Foreclosure
** Outstanding P & I Advances include the current period advance
Copyright 1997, Norwest Bank Minnesota, N.A. Page 13 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Specially Serviced Loan Detail - Part 1
<TABLE>
<CAPTION>
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate
- ------------ ------ --------------- ---------- ---------- ---------- -------- ------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Net Remaining
Distribution Actual Operating NOI Note Maturity Amortization
Date Balance Income Date DSCR Date Date Term
- ------------ ------- ---------- ---- ----- ------ --------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
(1) Resolution Strategy Code (2) Property Type Code
---------------------------- ----------------------
<S> <C>
1 - Modification 7 - REO MF - Multi-Family OF - Office
2 - Foreclosure 8 - Resolved RT - Retail MU - Mixed Use
3 - Bankruptcy 9 - Pending Return HC - Health Care LO - Lodging
4 - Extension to Master Servicer IN - Industrial SS - Self Storage
5 - Note Sale 10 - Deed in Lieu Of WH - Warehouse OT - Other
6 - DPO Foreclosure MH - Mobile Home Park
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 14 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Specially Serviced Loan Detail-Part 2
<TABLE>
<CAPTION>
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Data Date Value Property Revenue Comment
----------- ------ --------------- --------- ---------- ------------ ------ ------- --------------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
(1) Resolution Strategy Code
<S> <C> <C> <C> <C> <C>
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed in Lieu Of
6 - DPO Foreclosure
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 15 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Modified Loan Detail
<TABLE>
<CAPTION>
Offering
Loan Document Pre-Modification Modification Date Modification Description
Number Cross-Reference Balance
<S> <C> <C> <C> <C>
Total
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 16 of 17
<PAGE>
<TABLE>
<S> <C> <C>
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. DLJ Commercial Mortgage Corp. Leslie Gaskill
Corporate Trust Services Commercial Mortgage Pass-Through Certificates (212) 515-5254
3 New York Plaza, 15th Floor Series 1998-CF2 Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
Payment Date: 01/13/1999
Record Date: 12/31/1998
</TABLE>
Liquidated Loan Detail
<TABLE>
<CAPTION>
Final Recovery Offering Gross Proceeds
Loan Determination Document Appraisal Appraisal Actual Gross as a % of
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance
<S> <C> <C> <C> <C> <C> <C> <C>
Current Total
Cumulative Total
</TABLE>
<TABLE>
<CAPTION>
Aggregate Net Net Proceeds Repurchased
Loan Liquidation Liquidation as a % of Realized by Seller
Number Expenses* Proceeds Actual Balance Loss (Y/N)
<S> <C> <C> <C> <C> <C>
Current Total
Cumulative Total
</TABLE>
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
Copyright 1997, Norwest Bank Minnesota, N.A. Page 17 of 17
<PAGE>
EXHIBIT E-2A
FORM OF CSSA LOAN PERIODIC UPDATE FILE
E-2A-1
<PAGE>
CSSA Loan Periodic Update File
E-2A
<TABLE>
<CAPTION>
Field
Field Name Number Type Format Desription
- ---------- ------ ---- ------ ----------
<S> <C> <C> <C> <C>
Transaction Id (pool ID) 1 AN XX97001 Unique Issue Identification Mnemonic
Group Id (subgroup within a pool) 2 AN XXX9701A Unique Identification Number Assigned To
Each Loan Group Within An Issue
Loan ID (loan number) 3 AN 00000000012345 Unique Identification Number Assigned To Each
Collateral Item In a Pool
Prospectus ID 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled Balance 6 Numeric 100000.00 Outstanding Scheduled Principal Balance At The
Beginning Of The Current Period
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Scheduled Principal Balance At The
End Of The Current Period
Paid To Date 8 AN YYYYMMDD Due Date Of The Last Interest Payment Received
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The
Current Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To The
Calculation Of The Current Period Scheduled
Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final
Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer and Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate to Determine Net Pass-Through Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate to Determine Net Pass-Through Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate to Determine Net Pass-Through Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate to Determine Net Pass-Through Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate to Determine Net Pass-Through Rate
Net Pass-Through Rate 18 Numeric #VALUE! Annualized Interest Rate Applicable To The
Calculation Of The Current Period Remittance
Interest
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To The
Calculation of The Next Period Scheduled
Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled
To Change
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The
Current Period
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current
Period
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal And Interest Payment Due For
The Current Period
Neg am/Deferred Interest Payment 26 Numeric 1000.00 Negative Amoritization/Deferred Interest Amount
Due For The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During
The Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The
Related Collection Period
Liquidation Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
</TABLE>
1
<PAGE>
CSSA Loan Periodic Update File
E-2A
<TABLE>
<CAPTION>
Field
Field Name Number Type Format Description
- ---------- ------ ---- ------ -----------
<S> <C> <C> <C> <C>
Prepayment Penalty/Yield Maint Received 30 Numeric 1000.00 Additional Payment Required From Borrower Due To
Prepayment of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Scheduled Gross Interest Applicable To The
Prepayment Amount
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER $ 33 Numeric 1000.00 Excess Of The Principal Balance Over The Defined
Appraisal Percentage
Most Recent ASER Date 34 AN YYYYMMDD Date ASER Amount Applied To Loan
Cumulative ASER $ 35 Numeric 1000.00 Cumulative ASER Amount
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of
The Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of
The Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y",
Else "N")
Foreclosure Data 42 AN YYYYMMDD Date of Foreclosure
REO Date 43 AN YYYYMMDD Date of REO
Bankruptcy Date 44 AN YYYYMMDD Date of Bankruptcy
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Received On Liquidation To Be
Remitted To The Trust Per The Trust Documentation
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liquidation To Be
Netted From The Trust Per The Trust
Documentation
Realized Loss to Trust 47 Numeric 100000.00 Liquidation Balance Less Net Liquidation Proceeds
Received
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses 53 Numeric 1000.00 Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI 54 Numeric 1000.00 Preceding Fiscal Year Net Operating Income
Preceding Fiscal Year Debt Service Amt. 55 Numeric 1000.00 Preceding Fiscal Year Debt Service Amount
Preceding Fiscal Year DSCR 56 Numeric 2.55 Preceding Fiscal Year Debt Service Coverage Ratio
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date 58 AN YYYYMMDD Preceding Fiscal Year Financial As Of Date
</TABLE>
2
<PAGE>
CSSA Loan Periodic Update File
E-2A
<TABLE>
<CAPTION>
Field
Field Name Numer Type Format Description
- ---------- ----- ---- ------ -----------
<S> <C> <C> <C> <C>
Second Preceding FY Revenue 59 Numeric 1000.00 Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses 60 Numeric 1000.00 Second Preceding Fiscal Year Expenses
Second Preceding FY NOI 61 Numeric 1000.00 Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service 62 Numeric 1000.00 Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR 63 Numeric 2.55 Second Preceding Fiscal Year Debt Service
Coverage Ratio
Sec Preceding FY Physical Occupancy 64 Numeric 0.85 Second Preceding Fiscal Year Financial As Of Date
Sec Preceding FY Financial As of Date 65 AN YYYYMMDD Second Preceding Fiscal Year Financial To Date
Revenue
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00 Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00 Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI 68 Numeric 1000.00 Most Recent Fiscal Year To Date Net Operating
Income
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00 Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR 70 Numeric 2.55 Most Recent Fiscal Year To Date Debt Service
Coverage Ratio
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85 Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD Most Recent Fiscal Year to Date End Date
Most Recent Appraisal Date 74 AN YYYYMMDD The Date Of The Latest Available Appraisal For
The Property
Most Recent Appraisal Value 75 Numeric 100000.00 The Latest Available Appraisal For The Property
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Spec Service Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Service Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer
Date Asset is Expected to Be Resolved 79 AN YYYYMMDD Date Asset Is Expected To Be Resolved
Year Last Renovated 80 AN 1997 Year Property Last Renovated
</TABLE>
3
<PAGE>
CSSA Property File
E-2B
<TABLE>
<CAPTION>
Field
Field Name Numer Type Format Description
- ---------- ----- ---- ------ -----------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Loan Id 2 AN 00000000012345 Unique Identification Number Assigned To Each
Collateral Item In A Pool
Prosepctus Loan ID 3 AN 123 Unique Identification Number Assigned To Each
Collateral Item in The Prospectus
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3) All Loans With The Same Numeric value Are Crossed
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN Text
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Securitization 16 Numeric 25000 RT, IN, WH, OF, MU, SS, OT-SF
# of Units/Beds/Rooms At Securitization 17 Numeric 75 MF, MHP, LO, HC - Units
Property Status 18 AN 1 1-FCL, 2=REO, 3=Defeased, 4=partial Releases,
5=Released, 6=Same as at Securitization
Allocated Percentage of Loan At
Securitization 19 Numeric 0.75 Issuer to allocate loan % attributable to
property for multi-property loan
Current Allocated Percentage 20 Numeric 0.75 Calculation based on Current Allocated Loan
Amount and Current SPB for associated loan
Current Allocated Loan Amount 21 Numeric 5900900 Maintained by servicer
Ground Lease (Y/N) 22 AN N Either Y=Yes, S=Subordinate, N=No ground lease
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraised Value 25 Numeric 10000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD Could be different dates for different properties
if foreclosing
Foreclosure Date 27 AN YYYYMMDD
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75 Map to Most Recent Fiscal YTD Physical Occupancy
in CSSA, multiply times Current Allocated %
Occupancy Date 30 Numeric YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant (Tenant Name) 37 AN Text For Office, WH, Retail, Industrial, "Only if"
disclosed in the offering document
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant (Tenant Name) 39 AN Text For Office, WH, Retail, Industrial, "Only if"
disclosed in the offering document
4
</TABLE>
<PAGE>
CSSA Property File
E-2B
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Square Feet on 2nd Largest Tenant 40 Numeric 15000.000
3rd Largest Tenant (Tenant Name) 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12 Needed to indicate month ending for borrower's Fiscal Year
Securitization Financials As Of Date 44 AN YYYYMMDD
Revenue At Securitization 45 Numeric 1000000.00
Operating Expenses At Securitization 46 Numeric 1000000.00
NOI At Securitization 47 Numeric 1000000.00
DSCR At Securitization 48 Numeric 1.5 Multiply times the Allocated % at Securitization
Appraisal Value At Securitization 49 Numeric 1000000.00
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric Multiply times the Allocated % at Securitization
Date of Last Inspection 52 AN YYYYMMDD
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
Preceding Fiscal Year Expenses 55 Numeric 1000000.00
Preceding Fiscal Year NOI 56 Numeric 1000000.00
Preceding Fiscal Year Debt Service Amt 57 Numeric 1000000.00
Preceding Fiscal Year DSCR 58 Numeric 1.3 Multiply times the Allocated % at Securitization
Preceding Fiscal Year Physical Company 59 Numeric 0.9 Multiply times the Allocated % at Securitization
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1000000.00
Second Preceding FY Expenses 62 Numeric 1000000.00
Second Preceding FY NOI 63 Numeric 1000000.00
Second Preceding FY Debt Service 64 Numeric 1000000.00
Second Preceding FY DSCR 65 Numeric 1.3
Second Preceding FY Physical Occupancy 66 Numeric 0.90
</TABLE>
<PAGE>
EXHIBIT E-2C
FORM OF CSSA LOAN SET-UP FILE
E-2C-1
<PAGE>
CSSA Loan Set-Up File
E-2C
<TABLE>
<CAPTION>
Field
Field Name Number Type Format Description
- ---------- ------ ---- -------- -----------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan Group
Within An Issue
Loan Id 3 AN 00000000012345 Unique Indentification Number Assigned To Each Collateral
Item In A Pool
Offering Document Loan Id 4 AN 123 Unique Identification Number Assigned To Each Collateral
Item in the Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number of Days From Due Date Borrower Is Permitted To
Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78'S
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description 21 AN Text Description Of Prepayment Terms (Not To Exceed 50
Characters)
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Original Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The
Gross Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan Per
The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Maximum Rate That The Borrower Must Pay On An Arm Loan Per
The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per The
Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Increase To The Note Rate Allowed Per
The Loan Agreement
Periodic Payment Adjustment Max-% 30 Numeric 0.03 Maximum Periodic Percentage Increase To The Borrowers P&I
Payment Allowed Per The Loan Agree
</TABLE>
1
<PAGE>
CSSA Loan Set-Up File
E-2C
<TABLE>
<CAPTION>
Field
Field Name Number Type Format Desription
- ---------- ------ ---- ------ ----------
<S> <C> <C> <C> <C>
Periodic Payment Adjustment Max-$ 31 Numeric 5000.00 Maximum Periodic Dollar Increase To The
Borrowers P&I Payment Allowed Per The
Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually ...
Rate Reset Frequency In Months 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually ...
Payment Reset Frequency In Months 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually ...
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin
(See Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To
Adjustment Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Negam Allowed (% Of Orig Balance) 39 Numeric 0.075 Maximum Lifetime Percentage Increase To The
Original Balance Allowed Per The Loan Agreement
Maximum Negam Allowed ($) 40 Numeric 25000.00 Maximum Lifetime Dollar Increase To The Original
Balance Allowed Per The Loan Agreement
Remaining Term At Securitization 41 Numeric 240 Remaining Number Of Months Until Maturity Of
Loan At Cutoff
Remaining Amortized Term At Securitization 42 Numeric 360 Remaining Number Of Months Loan Amortized Over
At Cutoff
Maturity Date At Securitization 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan
At Securitization
Scheduled Principal Balance At
Securitization 44 Numeric 1000000.00 The Scheduled Principal Balance Of The
Mortgage Loan At Securitization
Note Rate At Securitization 45 Numeric 0.095 Cutoff Annualized Gross Internet Rate
Applicable To The Calculation Of Scheduled
Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer
And Trustee
Fee Rate/Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Fee Rate/Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Fee Rate/Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Fee Rate/Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Fee Rate/Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Net Rate At Securitization 52 Numeric 0.00001 Cutoff Annualized Interest Rate Applicable To
The Calculation Of Remittance Interest
Periodic P&I Payment At Securitization 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest
Payment
# Of Properties 54 Numeric 13 The Number Of Properties Underlying The Mortgage
Loan
Property Name 55 AN Text If Number Of Properties Is Greater Than 1
Then "Various"
Property Address 56 AN Text If Number Of Properties Is Greater Than 1
Then "Various"
Property City 57 AN Text If Number Of Properties Is Greater Than 1
Then "Various"
Property State 58 AN Text If Number Of Properties Is Greater Than 1
Then "Various"
Property Zip Code 59 AN Text If Number Of Properties Is Greater Than 1
Then "Various"
Property County 60 AN Text If Number Of Properties Is Greater Than 1
Then "Various"
</TABLE>
2
<PAGE>
CSSA Loan Set-Up File
E-2C
<TABLE>
<CAPTION>
Field
Field Name Number Type Format Desription
- ---------- ------ ---- ------ ----------
<S> <C> <C> <C> <C>
Property Type Code 61 AN MF If Number Of Properties Is Greater Than 1 Then
"Various" (See Property Type Code Legend)
Net Square Feet At Securitization 62 Numeric 25000 If Number Of Properties Is Greater Than 1 Then
"Various"
# Of Units/Beds/Rooms At Securitization 63 Numeric 75 If Number Of Properties Is Greater Than 1 Then
"Various"
Year Built 64 AN 1990 If Number Of Properties Is Greater Than 1 Then
"Various"
NOI At Securitization 65 Numeric 100000.00 Net Operating Income At Securitization
DSCR At Securitization 66 Numeric 2.11 DSCR At Securitization
Appraisal Value At Securitization 67 Numeric 1000000.00 Appraisal Value At Securitization
Appraisal Date At Securitization 68 AN YYYYMMDD Appraisal Date At Securitization
Physical Occupancy At Securitization 69 Numeric 0.88 Physical Occupancy At Securitization
Revenue At Securitization 70 Numeric 100000.00 Revenue At Securitization
Operating Expenses At Securitization 71 Numeric 100000.00 Expenses At Securitization
Securitization Financials As Of Date 72 AN YYYYMMDD Securitization Financials As Of Date
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/N) 74 AN Y Y=Yes, N=No
Cross-Collateralized Loan Grouping 75 Numeric 9(3) All Loans With The Same Numeric Value Are Crossed
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No
Lien Position At Securitization 78 Numeric 1 1=First, 2=Second...
</TABLE>
3
<PAGE>
EXHIBIT E-3
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
E-3-1
<PAGE>
<TABLE>
<CAPTION>
Original Underwriting Information
------------------------------------------
Last Ending
Property Scheduled Paid Annual Financial
Prospectus Inspection Principal Thru Debt Info as % Total %
Number City State Date Balances Date Service of Date Due Revenue NOI DSCR
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Grand Total Grand Total
<CAPTION>
*Prior Full Year Operating Information **Current Annual Operating Information
- -------------------------------------------------- ----------------------------------------------------
As of YZYYYY Normalized As of YZYYYY Normalized
- ------------------ --------------- ------------------- ----------------
Financial Financial
Info as of % Total % Info as of % Total %
Date Due Revenue NOI DSCR Date Due Revenue NOI DSCR
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Trading & "Actual" YTD Financial Information Net Change
Month Reported Current & Basic
- ------------------------------------------------------------ ----------------------------
FS FS %
Start End % Total % % Total
Date Date Due Revenue NOI DSCR Due Rev DSCR
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Financial information
Current Full Year:
Current Full Yr. received with DSC (less than) 1:
Prior Full Year
Prior Full Yr. received with DSC (less than) 1:
Received Required
Loans Balance Balance
$ % $ $ % $ %
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
count count/total count Balance balance/total balance
count count/total count Balance balance/total balance
count count/total count Balance balance/total balance
count count/total count Balance balance/total balance
</TABLE>
* And Preceding Annual Operating Information
**Preceding Annual Operating
C-1
<PAGE>
EXHIBIT E-4
FORM OF DELINQUENT LOAN STATUS REPORT
E-4-1
<PAGE>
Delinquent Loan Status Report
<TABLE>
<CAPTION>
Other
Paid Ending Total O/S Advances
Prospectus Property Property Sq Ft or to Scheduled P&I Total O/S (Taxes &
ID Name Type City State Units Date Balance Advances Expenses Insurance)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Current LTM Cap Rate
Prospectus Total Current Interest Mat. NOI LTM Assigned
ID Exposure Monthly P&I Rate Date Date LTM NOI DSCR ***
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
90 + Days Delinquent
60 Days Delinquent
30 Days Delinquent
Current & at Special Servicer
Foreclosure
*** How to determine the cap rate is agreed upon by Underwiter and Servicers -
to be provided by a third party
C-2
<PAGE>
Delinquent Loan Status Report
<TABLE>
<CAPTION>
Loss
Value Valuation/ Appraisal, BPO, Using 92%
Prospectus Property Property using NOI & Appraisal or Appraisal Estimated
ID Name Type City State Cap Rate Date Internal Value or BPOs Recovery %
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Total
Appraisal FCL Expected
Prospectus Reduction Transfer Resolution Start FCL Sale Workout
ID Realised Date Date Date Date Strategy Comments
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
90 + Days Delinquent
60 Days Delinquent
30 Days Delinquent
Current & at Special Servicer
Foreclosure
C-2
<PAGE>
EXHIBIT E-5
FORM OF HISTORICAL LOAN MODIFICATION REPORT
E-5-1
<PAGE>
HISTORICAL LOAN MODIFICATION REPORT
<TABLE>
<CAPTION>
Balance
when
Modification sent to Balance at the # of Months
Prospectus or Modification Special Effective Date For Rate
ID City State Ext. Flag Effecitve Date Servicer of Modification Old Rate New Rate Change
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Prospectus
ID Old P & I New P&I Old Maturity
- --------------------------------------------------------------------------
<S> <C> <C> <C>
</TABLE>
Total for All Loans:
Total for Loans in Current Month
# of Loans $ Balances
Modifications
Maturity Date Extensions:
Total
C-3
<PAGE>
HISTORICAL LOAN MODIFICATION REPORT
<TABLE>
<CAPTION>
Prospectus New Months for Realized Estimated Interest
ID City Maturity Mod Change Loss to Trust Loss to Trust Comments
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
Total for All Loans:
Total for Loans in Current Month
# of Loans $ Bala
Modifications
Maturity Date
Extensions:
Total
C-3
<PAGE>
EXHIBIT E-6
FORM OF HISTORICAL LOSS ESTIMATE REPORT
E-6-1
<PAGE>
HISTORICAL LOSS ESTIMATE REPORT
<TABLE>
<CAPTION>
Latest
Appraisal Net
or Amount
Prospectus Property Property % Rec from Brokers Effective Recieved Seheduled
ID Name Type City State Sale Opinion Date of Sale Sales Price from Sale Balances
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Total P&I Total Servicing
Prospectus Advance Expenses Fees
ID Outstanding (Outstanding) Expense
- -----------------------------------------------------------
<S> <C> <C> <C>
</TABLE>
Total all Loans:
Current Month Only:
C-4
<PAGE>
HISTORICAL LOSS ESTIMATE REPORT
<TABLE>
<CAPTION>
Actual Date Date
Losses Losses Minor Minor Adj Total Loss % of
Prospectus Property Property Net Passed Passed Adj to Passed Loss with Scheduled
ID Name Type City Proceeds Through Through Trust Through Adjustments Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total all Loans:
Current Month Only:
C-4
<PAGE>
EXHIBIT E-7
FORM OF NOI ADJUSTMENT WORKSHEET
E-7-1
<PAGE>
AS OF MM/DD/YY NDI ADJUSTMENT WORKSHEET
<TABLE>
<S> <C> <C> <C>
PROPERTY OVERVIEW:
Prospectus Number
------------
Sched Balance/Paid to Date
------------ ----------
Property Name
------------
Property Type
------------
Property Address
------------
City, State
------------ ----------
Net Rentable Square Feet
------------
Year/Built/Renovated
------------
Year of Operations Borrower Adjustment Normalized
------------ ---------- ------------
Occupany Rate
------------ ---------- ------------
Average Rental Rate
------------ ---------- ------------
</TABLE>
<TABLE>
<CAPTION>
INCOME:
No. of Months # of months
Period Ended Borrower Adjustment Normalized
------------ ---------- ------------
<S> <C> <C> <C>
Statement Classification
------------ ---------- ------------
Rental Income - Category 1
------------ ---------- ------------
Rental Income - Category 2
------------ ---------- ------------
Rental Income - Category 3
------------ ---------- ------------
Pass Through/Escalations
------------ ---------- ------------
Other Income
------------ ---------- ------------
Effective Gross Income
------------ ---------- ------------
OPERATING EXPENSES:
Real Estate Taxes
------------ ---------- ------------
Property Insurance
------------ ---------- ------------
Utilities
------------ ---------- ------------
General and Administration
------------ ---------- ------------
Repairs and Maintenance
------------ ---------- ------------
Management Fees
------------ ---------- ------------
Payroll and Benefits
------------ ---------- ------------
Advertising and Marketing
------------ ---------- ------------
Professional Fees
------------ ---------- ------------
Other Expenses
------------ ---------- ------------
Ground Rent
------------ ---------- ------------
Total Operating Expenses
------------ ---------- ------------
Operating Expense Ratio
------------ ---------- ------------
Net Operating Income
------------ ---------- ------------
Leasing Commissions
------------ ---------- ------------
Tenant Improvements
------------ ---------- ------------
Replacement Reserves
------------ ---------- ------------
Other Capital Expense
------------ ---------- ------------
Total Capital Items
------------ ---------- ------------
NOI after Capital Items
------------ ---------- ------------
Debt Service (per servicer)
------------ ---------- ------------
Cash Flow after Debt Service
------------ ---------- ------------
DSCR (NOI/Debt Service)
------------ ---------- ------------
DSCR (after reserves\cap exp)
------------ ---------- ------------
Source of Financial Data:
------------ ---------- ------------
Income Comments:
------------ ---------- ------------
Expense Comments:
------------ ---------- ------------
Capital Items Comments:
------------ ---------- ------------
</TABLE>
<PAGE>
EXHIBIT E-8
FORM OF OPERATING STATEMENT ANALYSIS REPORT
E-8-1
<PAGE>
AS OF MM/DD/YY OPERATING STATEMENT ANALYSIS REPORT
<TABLE>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW:
Prospectus Number
------------
Sched Balance/Paid to Date
------------ ----------
Property Name
------------
Property Type
------------
Property Address
------------ ----------
City, State
------------ ---------- ---------- ---------- ------------
Net Rentable Square Feet
------------ ---------- ---------- ---------- ------------
Year Built/Renovated
------------ ----------
1998
Year of Operations Underwriting 1995 1996 1997 YTD/Trailing**
------------ ---------- ---------- ---------- ------------
Occupany Rate
------------ ---------- ---------- ---------- ------------
Average Rental Rate
------------ ---------- ---------- ---------- ------------
</TABLE>
** Servicer will not be expected to "Normalize" these YTD numbers
<TABLE>
INCOME:
No. of Months # of months
1998
Period Ended Underwriting 1995 1996 1997 YTD/Trailing 1997-Base 1997-1996
Statement Classification Basis Normalized Normalized Normalized Variance Variance
------------ ---------- ---------- ---------- ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Rental Income - Category 1
------------ ---------- ---------- ---------- ------------ -------- ---------
Rental Income - Category 2
------------ ---------- ---------- ---------- ------------ -------- ---------
Rental Income - Category 3
------------ ---------- ---------- ---------- ------------ -------- ---------
Pass Through/Escalations
------------ ---------- ---------- ---------- ------------ -------- ---------
Other Income
------------ ---------- ---------- ---------- ------------ -------- ---------
Effective Gross Income
------------ ---------- ---------- ---------- ------------ -------- ---------
OPERATING EXPENSES:
Real Estate Taxes
------------ ---------- ---------- ---------- ------------ -------- ---------
Property Insurance
------------ ---------- ---------- ---------- ------------ -------- ---------
Utilities
------------ ---------- ---------- ---------- ------------ -------- ---------
General and Administration
------------ ---------- ---------- ---------- ------------ -------- ---------
Repairs and Maintenance
------------ ---------- ---------- ---------- ------------ -------- ---------
Management Fees
------------ ---------- ---------- ---------- ------------ -------- ---------
Payroll and Benefits
------------ ---------- ---------- ---------- ------------ -------- ---------
Advertising and Marketing
------------ ---------- ---------- ---------- ------------ -------- ---------
Professional Fees
------------ ---------- ---------- ---------- ------------ -------- ---------
Other Expenses
------------ ---------- ---------- ---------- ------------ -------- ---------
Ground Rent
------------ ---------- ---------- ---------- ------------ -------- ---------
Total Operating Expenses
------------ ---------- ---------- ---------- ------------ -------- ---------
Operating Expense Ratio
------------ ---------- ---------- ---------- ------------ -------- ---------
Net Operating Income
------------ ---------- ---------- ---------- ------------ -------- ---------
Leasing Commissions
------------ ---------- ---------- ---------- ------------ -------- ---------
Tenant Improvements
------------ ---------- ---------- ---------- ------------ -------- ---------
Replacement Reserves
------------ ---------- ---------- ---------- ------------ -------- ---------
Other Capital Expense
------------ ---------- ---------- ---------- ------------ -------- ---------
Total Capital Items
------------ ---------- ---------- ---------- ------------ -------- ---------
NOI after Capital Items
------------ ---------- ---------- ---------- ------------ -------- ---------
Debt Service (per servicer)
------------ ---------- ---------- ---------- ------------ -------- ---------
Cash Flow after Debt Service
------------ ---------- ---------- ---------- ------------ -------- ---------
DSCR (NOI/Debt Service)
------------ ---------- ---------- ---------- ------------ -------- ---------
DSCR (after reserves\cap exp)
------------ ---------- ---------- ---------- ------------ -------- ---------
Source of Financial Data:
------------ ---------- ---------- ---------- ------------ -------- ---------
Income Comments:
------------ ---------- ---------- ---------- ------------ -------- ---------
Expense Comments:
------------ ---------- ---------- ---------- ------------ -------- ---------
Capital Items Comments:
------------ ---------- ---------- ---------- ------------ -------- ---------
</TABLE>
<PAGE>
EXHIBIT E-9
FORM OF REO STATUS REPORT
E-9-1
<PAGE>
REO STATUS REPORT
<TABLE>
<CAPTION>
Other
Paid Ending Total P&I Total Advances
Prospectus Property Property Sq. Ft or thru Scheduled Advances to Expenses (Taxes &
ID Name Type City State Units Date Balances Date to Date Insurance)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
LTM Cap Rate
Prospectus Total Current Maturity NOI LTM Assign Valuation/
ID Exposure Monthly P&I Date Date LTM NOI DSCR *** Apprasial Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
*** How to determin the cap rate is agreed upon by Underwiter and Servicers - to
be provided by a third party
C-5
<PAGE>
REO STATUS REPORT
<TABLE>
<CAPTION>
Value Total Special
Using Appraisal/ Loss Using 92% Appraisal Servicing
Prospectus Property Property NOI & BPO or Appraisal or Estimated Reduction Transfer
ID Name Type City Cap Rate Internal Value BPO Recovery % Reasised Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
REO Pending
Prospectus Acquisition Resolution
ID Date Date Comments
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
</TABLE>
C-5
<PAGE>
EXHIBIT E-10
FORM OF WATCH LIST
E-10-1
<PAGE>
SERVICER WATCH LIST
<TABLE>
<CAPTION>
Ending Paid
Prospectus Property Property Scheduled thru Maturity Comment/Reason on
ID Name Type City State Balance Date Date LTM DSCR* Watch List
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
* LTM = Last 12 months either trailing or last annual
C-6
<PAGE>
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
<PAGE>
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE 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-CF2, Class _______,
[having an initial aggregate Certificate Principal Balance as
of December 3, 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 December 1, 1998, among DLJ Commercial
Mortgage Corp., as Depositor, Banc One Mortgage Capital Markets, LLC, as Master
Servicer and 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
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 person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest
in a Transferred 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 Transferred Certificate, any interest in a
Transferred Certificate or any other similar security,
<PAGE>
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 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.
F-1A-2
<PAGE>
___ (e) Other. (Please specify brief description of method)
______________________________________________________
______________________________________________________
______________________________________________________
_____________________________________________________.
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 such
entity; securities that are part of an unsold allotment to or
subscription by such entity, if such entity is a dealer;
securities of issuers that are part of such entity's "family
of investment companies," if such entity 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,
_______________________________
(Transferor)
By: __________________________
Name: ________________________
Title: _______________________
F-1A-3
<PAGE>
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE 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-CF2, Class
_______,[having an initial aggregate Certificate
Principal Balance as of December 3, 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 December 1, 1998, among DLJ
Commercial Mortgage Corp., as Depositor, Banc One Mortgage Capital Markets, LLC,
as Master Servicer and 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
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 person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest
in a Transferred 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
<PAGE>
Transferred Certificate, any interest in a Transferred 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"), 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
[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-CF2, Class
_______, [having an initial aggregate Certificate
Principal Balance as of December 3, 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 December 1, 1998, among DLJ
Commercial Mortgage Corp., as Depositor, Banc One Mortgage Capital Markets, LLC,
as Master Servicer and 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 and 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.
<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,
_______________________________
(Transferor)
By: __________________________
Name: ________________________
Title: _______________________
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-2
<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] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________/1/ in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the 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 copy
of which is attached hereto, as of a date not more
- --------
/1/ Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2A-3
<PAGE>
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.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ 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. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person 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.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person 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 such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
F-2A-4
<PAGE>
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
Yes No 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 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.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
___________________________________
Print Name of Transferee
By: _______________________________
Name: _________________________
Title: ________________________
Date: _________________________
F-2A-5
<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 owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
F-2A-6
<PAGE>
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.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
___________________________________
Print Name of Transferee
By: _______________________________
Name: _________________________
Title: ________________________
IF AN ADVISER:
_______________________________
Print Name of Transferee
Date: _____________________________
F-2A-7
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE 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-CF2, Class
_______, [having an initial aggregate Certificate
Principal Balance as of December 3, 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 December 1, 1998, among DLJ
Commercial Mortgage Corp., as Depositor, Banc One Mortgage Capital Markets, LLC,
as Master Servicer and 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 the 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 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.
<PAGE>
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 MAY BE MADE 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 (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.
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 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.
F-2B-2
<PAGE>
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: ________________________
Title: _______________________
F-2B-3
<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-CF2, Class
___, [having an initial aggregate Certificate
Principal Balance as of December 3, 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 December 1, 1998, among DLJ Commercial
Mortgage Corp. as depositor, Banc One Mortgage Capital Markets, LLC, as master
servicer and 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 (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-CF2, 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 control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
H-1-2
<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-1-3
<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-CF2 (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 December 1, 1998 (the
"Pooling and Servicing Agreement"), among DLJ Commercial Mortgage Corp., as
depositor, Banc One Mortgage Capital Markets, LLC, as master servicer and
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 December 1, 1998 and relating to DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-CF2 (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:
MOODY'S INVESTORS SERVICE, 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]
[MASTER SERVICER]
[DEPOSITOR]
[REMIC ADMINISTRATOR]
Re: DLJ Commercial Mortgage Corp., Series 1998-CF2
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing Agreement, dated
as of December 1, 1998 and relating to DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-CF2 (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 Debtor's
Commercial Mortgage Pass-Through Certificates, Series 1998-CF2 Certificates
(referred to as the "Secured Party" for purposes of this financing statement
only), under that certain Pooling and Servicing Agreement, dated as of December
1, 1998 (the "Pooling and Servicing Agreement"), among the Debtor as depositor,
the Secured Party as trustee and REMIC administrator, and Banc One Mortgage
Capital Markets, LLC as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"),
relating to the issuance of the Debtor's Commercial Mortgage Pass-Through
Certificates, Series 1998-CF2 (collectively, the "Series 1998-CF2
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 Master
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 Master Servicer or
Special Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time
on deposit in the
J-1-2
<PAGE>
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. (a) the Interest Reserve 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 Interest Reserve
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;
10. 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 Master Servicer or Special Servicer;
and
11. The rights of the Debtor under Sections 2, 3(a),
3(b), 3(d), 4, 8(f) and 12 (and, to the extent
related to the foregoing, under Sections 9, 10, 13,
14, 15, 16, 17 and 19) of the Mortgage Loan Purchase
and Sale Agreement dated as of November 20, 1998,
between the Debtor and Column Financial, Inc.
12. Any rights of the Debtor, as assignee, under the
Third Party Originator Agreements; and
13. 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,
J-1-3
<PAGE>
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 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 November
20, 1998 relating to DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-CF2 (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 REGISTERED OR 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-CF2
In accordance with Section [4.02(a)] [8.12(b)] of the Pooling and
Servicing Agreement, dated as of December 1, 1998 (the "Pooling and Servicing
Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor"),
Banc One Mortgage Capital Markets, LLC, as master servicer and 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-CF2
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [registered holder] [beneficial
owner] of the Class ____ Certificates.
2. The undersigned is requesting access to the
information on the Trustee's Internet Website
pursuant to Section 4.02(a)] or [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 or
accounting for its investment), 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.
L-1-1
<PAGE>
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-1-2
<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-1-3
<PAGE>
EXHIBIT L-2
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY PROSPECTIVE PURCHASER
[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., Commercial Mortgage Pass-
Through Certificates, Series 1998-CF2 (the "Certificates")
In accordance with Section [4.02(a)] [8.12(b)] of the Pooling and
Servicing Agreement, dated as of December 1, 1998 (the "Pooling and Servicing
Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor"),
Banc One Mortgage Capital Markets, LLC, as master servicer and 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-CF2
(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 [access to the
information on the Trustee's Internet Website
pursuant to Section 4.02(a)]or [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
FORM OF MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
M-1
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of November
20, 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
December 1, 1998 (the "Pooling and Servicing Agreement"), among the Purchaser,
as depositor, Banc One Mortgage Capital Markets, LLC as master servicer (in
such capacity, the "Master Servicer") and 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-CF2
(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 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"), pursuant to which 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 December 3, 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 $1,107,680,439 (the "Initial
Pool Balance"). The purchase
<PAGE>
price for the Mortgage Loans shall be equal to 100% of the Initial Pool Balance,
plus accrued interest thereon at the weighted average of the Mortgage Rates for
the Mortgage Loans from December 1, 1998 (the "Cut-off Date") to but not
including the Closing Date (net of related Master Servicing Fees and Trustee's
Fees), 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.
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 Master 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"). In addition, the Purchaser hereby directs the Seller to, and the
Seller hereby agrees to, deliver to, and deposit with, the Master 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 policy of
title insurance described on Exhibit A, 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).
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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 Paragraph (d) 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 the earlier of discovery or 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
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
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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; 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.
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 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.
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(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; and, provided, further, that, if, as a result of the
failure of a Third Party Originator to cure a Material Breach on the part of
the Seller 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 on its part or repurchase or
replace such Third Party Mortgage Loan, the Seller shall be obligated to do so
within 30 days (or, in the case of the Mortgage Loan originated by Apple Bank
for Savings, 90 days) following the end of the cure/repurchase/substitution
period for the related Third Party Originator and 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
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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 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 Master 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;
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(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 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) 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.
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") (the Purchaser, the Underwriter,
their respective officers and directors and any such controlling persons,
collectively, for purposes of this Section 8, the "Indemnified Parties"),
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) (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, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the Diskette), 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
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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 and/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 any of the printed materials described in the
immediately preceding clause (i) 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 only if and to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon any information furnished to any Indemnified
Party by or on behalf of the Seller or approved by the Seller, or was based upon
or arose out of a defective document delivered to the Purchaser by or on behalf
of the Seller (other than in respect of a Third Party Mortgage Loan), or was
based upon or arose out of any breach or alleged breach of any of the
representations, warranties, covenants or agreements of the Seller (other than
those relating to the Third Party Mortgage Loans) as set forth in or made
pursuant to this Agreement or any exhibit hereto (collectively, the "Seller's
Information"). Without limiting the intended coverage of the foregoing
indemnity, it is hereby acknowledged that all statements (other than those
relating to the Third Party Mortgage Loans) set forth in the Prospectus
Supplement under the captions "Summary of the Prospectus Supplement--The
Mortgage Loans and the Mortgaged Properties", "Risk Factors--Risks Related to
the Mortgage Loans" and "Description of the Mortgage Pool", in 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 captions in each, as well as all statements (other than those
relating to the Third Party Mortgage Loans) set forth on Exhibits A-1 and A-2 to
the Prospectus Supplement and the Diskette, have been made in reliance upon
information furnished by or on behalf of the Seller or approved by the Seller.
The Seller acknowledges that the Underwriter will enter into the Underwriting
Agreement and the Certificate Purchase Agreement in reliance upon this indemnity
agreement of the Seller. This indemnity agreement will be in addition to any
liability which the Seller may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean
the registration statement No. 333-59167 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 November 20, 1998, as supplemented by the prospectus supplement dated
November 20, 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 November 20,
1998, relating to certain classes of the NonRegistered 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. 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"); and "Diskette"
shall mean the diskette attached to the Prospectus Supplement.
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(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to subsection (a) above, the Indemnified Party shall promptly
notify the Seller in writing, and the Seller, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Seller may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
relating to such proceeding. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, and the reasonable fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless (i) the
Seller and such Indemnified Party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including, without
limitation, any impleaded parties) include both the Seller and such Indemnified
Party, and representation of both such parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, or
(iii) the Seller shall have failed within a reasonable period to retain counsel
reasonably satisfactory to the Indemnified Party in accordance with the
preceding sentence. It is understood that the Seller shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the legal fees and disbursements of more than one legal counsel for all the
Indemnified Parties. The Seller may, at its option, at any time upon written
notice to the Indemnified Party assume the defense of any proceeding and may
designate counsel satisfactory to the Indemnified Party in connection therewith
provided that the counsel so designated would have no actual or potential
conflict of interest in connection with such representation. Unless it shall
assume the defense of any proceeding, the Seller 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
Seller agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. If the Seller assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the Indemnified Party in connection with all claims which have
been asserted against the Indemnified Party 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, provided that the Indemnified
Party receives 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 Section 8(a) is
unavailable to an Indemnified Party or insufficient to hold it harmless in
respect of any losses, claims, damages or liabilities referred to therein,
then the Seller shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities,
in such proportion as is appropriate to reflect the relative fault of the
Seller and the Indemnified Party in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Indemnified Party and the Seller shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by such parties.
(d) The parties hereto agree that it would not be just and equitable
if contribution pursuant to subsection (c) above were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in subsection (c) above. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
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damages or liabilities referred to above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 8, which expenses the Seller shall pay as and
when incurred, at the request of the Indemnified Party, and to the extent that
any expenses so paid by the Seller are subsequently determined to not be
required to be borne by the Seller hereunder, the Indemnified Party which
received such payment shall promptly refund the amount so paid to the Seller. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 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.
(f) The Seller shall (i) pay all out-of-pocket costs and expenses of
the Purchaser reasonably incurred in connection with the enforcement of any
right or remedies of the Purchaser or the Trust provided for by this
Agreement, including the performance of all of the Seller's obligations
hereunder, (ii) pay any and all present and future stamp and other similar
taxes with respect to the matters covered hereby and indemnify and hold
harmless the Purchaser from and against any and all liabilities with respect
to or resulting from any delay or omission in paying such taxes, and (iii)
indemnify and hold harmless the Purchaser and its officers, employees and
agents from and against any and all liabilities, obligations, losses, damages,
penalties, judgments, suits, costs, expenses (including, without limitation,
attorneys' and accountants' fees reasonably incurred) and disbursements of any
kind whatsoever that may be imposed on, incurred by or asserted against the
Purchaser or any of its officers, employees or agents:
(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;
(B) in connection with the performance or non-performance of
any obligation of the Seller with respect to the Mortgage Loans;
(C) in the enforcement, or attempted enforcement, of this
Agreement, or in the collection or attempted collection of any
obligation of the Seller hereunder;
(D) in relation to any misstatement or alleged misstatement
of a material fact in any representation, warranty or other
information provided by the Seller to or for the benefit of the
Purchaser in connection with this Agreement or otherwise or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (exclusive
of any
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such misstatement, alleged misstatement, omission or alleged omission
relating to a Third Party Mortgage Loan);
(E) as a result of any indemnity payable by the Purchaser or
the Trust to the Master Servicer or Special Servicer arising out of,
related to or in connection with the origination of any Mortgage Loan
(other than a Third Party Mortgage Loan); and
(F) in any other way relating to or arising out of this
Agreement or any of the transactions contemplated hereby.
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.
(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, 8(f) and 12 (and, to the extent
relevant to the foregoing, in Sections 9, 10, 13, 14, 15, 16, 17 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
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<PAGE>
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 and controlling persons of each
of the Purchaser and the Underwriter 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.
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, the New York 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.
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
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<PAGE>
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 New York State and federal courts sitting in New York City with respect to
matters arising out of or relating to this Agreement; (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, 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 and shall remain liable therefor.
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<PAGE>
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 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:
<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-CF2;
(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-CF1, 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-CF2, 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;
<PAGE>
(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-CF2;
(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 corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and is possessed of all licenses necessary to carry on its
business and is qualified and in good standing and 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 as contemplated by the terms of this Agreement and the Pooling
and Servicing Agreement.
(b) The execution and delivery by the Seller of this
Agreement, as well as the execution (including, without limitation,
by facsimile or machine signature) of any and all documents
contemplated by this Agreement, including, without limitation,
endorsements of Mortgage Notes, and the performance and compliance by
the Seller with the terms of this Agreement will not (i) violate the
Seller's organizational documents, (ii) violate any law or regulation
or any administrative decree or order to which the Seller is subject
or (iii) 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 indenture, agreement or other instrument to
which the Seller is a party or by which it is bound or which is
applicable to it or any of its assets.
(c) The Seller has 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.
(d) The Seller has the full right, power and authority to
sell, assign, transfer, set over and convey the Mortgage Loans (and,
in the event that the related transaction is deemed to constitute a
loan secured by all or part of the Mortgage Loans, to pledge the
Mortgage Loans) in accordance with, and under the conditions set
forth in, this Agreement.
(e) Assuming due authorization, execution and delivery
hereof by the Purchaser, this Agreement constitutes a valid, legal
and binding obligation of the Seller, enforceable against the Seller
in accordance with the terms hereof, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and (ii)
general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with
the terms hereof will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
<PAGE>
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(g) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into
this Agreement or, in the Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of the Seller to perform its obligations hereunder or the
financial condition of the Seller.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar
law in effect in any applicable jurisdiction.
(i) The principal place of business and chief executive
office of the Seller is located in Atlanta, Georgia.
(j) 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 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 (or, in the case of one Mortgage Loan, second 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
<PAGE>
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 constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan (the foregoing items (a) through (e) being herein referred to as
the "Permitted Encumbrances"). The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form and constitutes a
legal, valid and binding assignment, sufficient to convey to the assignee named
therein all of the assignor's right, title and interest in, to and under such
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 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 master
servicer of such Mortgage Loan, was so prepared in
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<PAGE>
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.
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 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 conditions relating to leasing, repairs or other matters
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.
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<PAGE>
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 (other than
any Mortgaged Property identified on the Mortgage Loan Schedule as "Run-In
Foods") 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
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, 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 Mortgaged
Properties identified on the Mortgage Loan Schedule as "Run-In Foods" are
collectively insured under a policy of insurance, subject to certain per
occurrence and aggregate limits, against certain losses arising from the
presence of hazardous substances on such Mortgaged Properties. The Mortgage
encumbering each 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), 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.
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<PAGE>
14. Insurance. Except in certain cases, where tenants
(having a net worth of at least $50,000,000 or an investment grade credit
rating) with the obligation to maintain the insurance described in this
paragraph are allowed to self-insure the related Mortgaged Properties, 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 ten
(10) days' 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. No notice of termination, cancellation or reduction has been
received by the Seller with respect to any such hazard, flood or liability
insurance policy. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender or that would not otherwise
materially and adversely affect the security intended to be provided by the
related Mortgage, 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.
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. 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
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<PAGE>
not so comply, such non-compliance does not materially and adversely affect the
value of the related Mortgaged Property.
18. Leasehold Estate Only. If such Mortgage Loan is secured
by the interest of a Mortgagor as a lessee under a ground lease of a Mortgaged
Property (together with any and all written amendments and modifications
thereof and any and all estoppels from the ground lessor, a "Ground Lease"),
but not by the related fee interest in such Mortgaged Property (the "Fee
Interest"):
(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, 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 Closing Date, 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 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;
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<PAGE>
(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 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 ten (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.
19. Leasehold Estate and Fee Interest. If any 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:
(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
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<PAGE>
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 Master 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 under
"Description of the Mortgage Pool--Additional Mortgage Loan Information--
Additional and Other Financing" in the Prospectus Supplement, 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, except as otherwise specified under "Description of the Mortgage
Pool--Additional Mortgage Loan Information--Additional and Other Financing" 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. 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 or
affirmatively covered by title insurance, 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
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<PAGE>
origination that have not been released, bonded or escrowed for or affirmatively
covered by titled insurance.
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. 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; provided that 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 (i) the satisfaction of certain legal and
underwriting requirements and (ii) the payment of a release price and prepayment
consideration in connection therewith; and provided, further, that, as set forth
under "Description of the Mortgage Pool--Certain Terms and Conditions of the
Mortgage Loans--Substitution" in the Prospectus Supplement, each of three
Cross-Collateralized Groups (including the American Real Estate Loans and the
Inland Loans (each as defined in the Prospectus Supplement)) permits the related
Mortgagor to obtain the release of one or more of the related Mortgaged
Properties by substituting comparable real estate property, subject to, among
other conditions precedent, receipt of confirmation from each Rating Agency that
such release and substitution will not result in a qualification, downgrade or
withdrawal of any of its then-current ratings of the Certificates. Each Mortgage
loan that contains a provision for any defeasance of mortgage collateral 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 for the purpose
of facilitating the disposition of mortgaged real property and not as part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
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<PAGE>
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 as otherwise described under "Description of the Mortgage Pool--Certain
Terms and Conditions of the Mortgage Loans--Mortgage Rates; Calculation of
Interest" in the Prospectus Supplement and except for the imposition of a
default rate.
34. Inspection. In connection with the origination of each
Mortgage Loan (other than the Third Party Mortgage Loans), the Seller
inspected, or caused the inspection of, the related Mortgaged Property.
35. No Material Default. 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 directly or
indirectly 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.
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<PAGE>
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 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 to the sum of the original Mortgage Rate and a specified margin (such
margin, the "Additional Interest Rate"). In the case of the Mortgage Loan
secured by the Mortgaged Property identified on the Mortgage Loan Schedule as
the "Chanin Building," the Additional Interest Rate is not more than two
percentage points (2%).
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<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
<PAGE>
Exhibit D-2
Certificate of the Seller
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<PAGE>
Exhibit D-3
Opinion of Counsel to the Seller
<PAGE>
Schedule 1
Mortgage Loan Schedule
<PAGE>
Schedule 2
Third Party Originator Agreements
THIRD PARTY ORIGINATOR THIRD PARTY ORIGINATOR AGREEMENT
Union Capital Investments, LLC Seller's Warranty Certificate dated as of
("Union Capital") November 18, 1998, from Union Capital in
favor of DLJMCI
Apple Bank for Savings ("Apple Seller's Warranty Certificate dated as of
Bank") December 2, 1998, from Apple Bank in favor
of DLJMCI
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<PAGE>
EXHIBIT N-1
FORM OF THIRD PARTY ORIGINATOR AGREEMENT FOR UNION CAPITAL
N-1-1
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of November 18, 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-CF2 (the "Certificates"). The
Certificates will be issued on or about December 3, 1998 (the actual date of
issuance, the "Closing Date") pursuant to a Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), to be dated on or about December 1,
1998, among the Depositor, Banc One Mortgage Capital Markets, LLC, as master
servicer (in such capacity the "Master Servicer") and special servicer (in
such capacity the "Special Servicer"), and Norwest Bank Minnesota, National
Association, as trustee (in such capacity, the "Trustee") and REMIC
administrator (in such capacity, the "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.
<PAGE>
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 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 and (b) 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
<PAGE>
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 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,
<PAGE>
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 such representations and warranties made
pursuant to Section 2 hereof.
SECTION 4. Indemnification. 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 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.
a. 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 Indemnify ing 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 there of, 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
<PAGE>
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).
b. 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 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,
<PAGE>
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 misstatements of fact.
<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 a limited liability
company organized under the laws of Georgia, and its principal offices are in
Atlanta, Georgia. Union Capital is primarily involved in conduit lending, and
it 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 1993.
<PAGE>
SCHEDULE 1
Mortgage Loan Schedule
<PAGE>
EXHIBIT N-2
FORM OF THIRD PARTY ORIGINATOR AGREEMENT FOR APPLE BANK
N-2-1
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of December 3, 1998
(this "Seller's Warranty Certificate"), is executed and delivered by Apple
Bank for Savings (the "Seller"), in favor of Column Financial, Inc.
("Column"), its successors and assigns.
PRELIMINARY STATEMENT
The Seller has transferred to Column the mortgage loan (the "Mortgage
Loan") identified on the Mortgage Loan Schedule attached as Schedule 1 hereto.
Column intends to transfer the Mortgage Loan 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 Loan into a trust fund to be evidenced by the Depositor's
Commercial Mortgage Pass-Through Certificates, Series 1998-CF2 (the
"Certificates"). The Certificates will be issued on or about December 3, 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
December 1, 1998, among the Depositor, Banc One Mortgage Capital Markets, LLC,
as master servicer (in such capacity the "Master Servicer") and special
servicer (in such capacity the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (in such capacity, the "Trustee")
and REMIC administrator (in such capacity, the "REMIC Administrator"). The
Seller has agreed to make certain representations and warranties, repurchase
the Mortgage Loan in certain circumstances and provide certain indemnification
in connection with the sale of the Mortgage Loan to a trust fund to be formed
as part of a mortgage pass-through transaction, and such agreement was partial
consideration for Column's purchase of the Mortgage Loan from the Seller.
Capitalized terms used but not defined herein shall have the respective
meanings assigned to such terms in the Pooling and Servicing Agreement.
Under this Seller's Warranty Certificate (except under Section 4
hereof) and 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 Loan; 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 Loan 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 Column, 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 Column prior to the date hereof.
<PAGE>
SECTION 2. Representations and Warranties of the Seller. The Seller
hereby represents and warrants as of the Closing Date to and for the benefit
of Column, the Depositor, their affiliates, the Trustee and the
Certificateholders that (a) each of the representations and warranties set
forth in Schedule 2 attached hereto is true and correct as if stated and made
on the Closing Date and (b) the Mortgage Loan bears interest at a rate that
remains fixed throughout the term of the 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 the Mortgage Loan in the manner set
forth in Section 3 hereof, to and for the benefit of Column, the Depositor,
their affiliates, the Trustee and the Certificateholders, each of the
representations and warranties set forth in Schedule 2 attached hereto 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 a
Mortgage Loan at the time of execution of this Seller's Warranty Certificate.
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 Loan 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 Column and its
successors and assigns (the holder(s) of the 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 Column's, the Depositor's or the Trustee's
examination of the relevant 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 the Mortgage Loan or REO Property that materially
and adversely affects the value of the 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,
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
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 the 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 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 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 the Mortgage Loan in the
manner described herein below, the Seller may, at its option, in lieu of
repurchasing the Mortgage Loan, (a) replace the 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
-2-
<PAGE>
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 the 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, 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, the Mortgage Loan and/or related REO Property 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 the Mortgage Loan and/or
REO Property 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 the Mortgage
Loan or REO Property as contemplated by the preceding paragraph, the related
Owner and Seller shall arrange for the reassignment of the 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 the 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 the 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 such representations and warranties made pursuant to Section 2 hereof.
-3-
<PAGE>
SECTION 4. Indemnification. (a) The Seller will indemnify and hold
harmless Column, its affiliates, and each Person, if any, who controls 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 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 Loan 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; 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 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. Column 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)
-4-
<PAGE>
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
Column 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 Column for the
Mortgage Loan and the aggregate resale price received by Column, bears to (ii)
the aggregate resale price received by Column, 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 Column and its successors and assigns; except 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 Column under this
Seller's Warranty Certificate may, however, be assigned in whole or in part by
Column and its successors and assigns in connection with any transfer of the
Mortgage Loan. Without limiting the generality of the foregoing, the Seller
hereby acknowledges and approves the assignments contemplated in the
Preliminary Statement hereto.
SECTION 6. 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.
APPLE BANK FOR SAVINGS
By:
--------------------------------
Name:
Title:
Acknowledged and Accepted:
COLUMN FINANCIAL, INC.
By:
-------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
Apple Bank is a New York State chartered savings bank that
had assets of approximately $5.1 billion as of September 30, 1998. From its
Manhattan offices, Apple Bank originates and services loans secured by all
types of income producing properties in the New York City metropolitan area.
Commercial mortgage loans are originated for the bank's own portfolio, for the
Federal Home Loan Mortgage Corporation (as a Program Plus Seller/Servicer) and
for securitization through various third-party conduit programs. Apple Bank
was established in 1863.
<PAGE>
SCHEDULE 1
Mortgage Loan Schedule
<PAGE>
SCHEDULE 2
Sellers Representations
For purposes of this Schedule 2, 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 Loan is complete, true and
correct in all material respects as of the date of this Seller's Warranty
Certificate and as of the Cut-off Date.
2. Ownership of Mortgage Loan. Immediately prior to the
transfer to Column of the Mortgage Loan, the Seller had good title to, and was
the sole owner of, the Mortgage Loan. The Seller has full right, power and
authority to transfer and assign the Mortgage Loan to or at the direction of
Column and has validly and effectively conveyed (or caused to be conveyed) to
Column or its designee all of the Seller's legal and beneficial interest in
and to the Mortgage Loan free and clear of any and all pledges, liens,
charges, security interests and/or other encumbrances. The sale of the
Mortgage Loan to Column 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 the Mortgage Loan was thirty (30) days
or more past due, and the Mortgage Loan has not 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 the 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 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 Mortgage Loan, and (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
<PAGE>
income sufficient to service the Mortgage Loan (the foregoing items (a) through
(d) being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such 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 the 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 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. The Mortgage
related to the Mortgage Loan has not 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 the
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. The Mortgage Loan has not been modified in any manner such that
the terms of the Mortgage Loan, as so modified, are materially (and adversely
to the owner thereof) different from the terms of the Mortgage Loan described
in the Prospectus.
7. Condition of Property; Condemnation. The Mortgaged
Property securing the 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 the 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 the 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 the Mortgage Loan. To the Seller's knowledge, as of the date of the
origination of the Mortgage Loan, all of the material improvements on the
related Mortgaged Property lay
<PAGE>
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.
8. Title Insurance. The Mortgaged Property securing the
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 the Mortgage Loan after all advances of
principal insuring that the related Mortgage is a valid first priority lien on
the 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). The holder of the related Mortgage has not done, by act or
omission, anything that would materially impair the coverage under such Title
Policy. Immediately following the transfer and assignment of the 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 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 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 Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of the 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 the 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
the 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.
<PAGE>
11. Trustee under Deed of Trust. If the Mortgage in respect
of the 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, Column or any transferee thereof.
12. Environmental Conditions. An environmental site
assessment was performed with respect to the related Mortgaged Property in
connection with the origination of the Mortgage Loan, a report of each such
assessment (an "Environmental Report") has been delivered to Column, 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 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 Mortgage Loan, 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. The Mortgage Note, Mortgage, and
any other agreement executed by or on behalf of the related Mortgagor with
respect to the 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), 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. Except in certain cases, where tenants
(having extremely high net worth or investment grade credit ratings) with the
obligation to maintain the insurance described in this paragraph are allowed to
self-insure the related Mortgaged Properties, all improvements upon the
Mortgaged Property securing the 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 the 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. The Mortgaged Property
securing the Mortgage Loan is the subject of a business interruption insurance
policy providing coverage for at least six (6) months. If any portion
<PAGE>
of the improvements on the Mortgaged Property securing the Mortgage Loan was, at
the time of the origination of the 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 the Mortgage Loan, (2) the full insurable value of the
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 ten (10) days' prior written notice to the
mortgagee, and all premiums payable thereon as of the Closing Date, whether
annual or otherwise, have been paid. The Mortgaged Property securing the
Mortgage Loan is also covered by commercial general liability insurance in an
amount at least equal to $1 million per occurrence. No notice of termination,
cancellation or reduction has been received by the Seller with respect to any
such hazard, flood or liability insurance policy. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage for the 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 the
Mortgage Loan.
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 the
Mortgaged Property securing the 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. The Mortgagor under the Mortgage
Loan is not, 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
the Mortgaged Property securing the 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. Fee Estate. The Mortgage Loan is secured by the fee
simple interest of the Mortgage in the related Mortgaged Property.
19. [Reserved.]
<PAGE>
20. Escrow Deposits. With respect to escrow deposits and
payments relating to the Mortgage Loan, all such payments have been (as of the
Closing Date) delivered to the Master Servicer, and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made.
21. Qualified Mortgage. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
22. Advancement of Funds. The holder of the Mortgage Loan
has not, 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 the Mortgage Loan.
23. Equity Interest. The Mortgage Loan is not by its terms
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 the
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 the Mortgage Loan.
25. Junior Liens. The Mortgage Loan does not permit the
related Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior written
consent of the holder thereof. To the Seller's knowledge, the Mortgaged
Property is not encumbered by any liens junior to the liens of the related
Mortgage. The Mortgaged Property is not encumbered by any liens (other than
liens securing other Mortgage Loans) of equal priority with the liens of the
related Mortgage.
26. No Mechanics' Liens. To the Seller's knowledge, (i) the
Mortgaged Property securing the 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 the 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. The Mortgage Loan complies
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
the Mortgage Loan, (i) the related Mortgagor was in possession of all material
licenses, permits and authorizations required by applicable law for the
<PAGE>
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 Loan 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. The Mortgage Loan is not
cross-collateralized or cross defaulted with any other mortgage loan.
31. Releases of Mortgaged Property. Neither the 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 Mortgage Loan or (ii)
delivery of U.S. Treasury securities in connection with a defeasance of the
Mortgage Loan.
32. No Equity Participation or Contingent Interest. The
Mortgage Loan does not contain any equity participation by the lender or
provide for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property.
33. Fixed Rate Loan. The Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except for the imposition of a default rate.
34. Inspection. In connection with the origination of the
Mortgage Loan, the Seller inspected, or caused the inspection of, the related
Mortgaged Property.
35. No Material Default. 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 the 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 Schedule 2.
36. Due-on-Sale. The Mortgage related to the Mortgage Loan
contains a "due-on-sale" clause that provides for the acceleration of the
payment of the unpaid principal balance of the 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.
37. Whole Loan. The Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
38. Defeasance Provision. If the Mortgage Loan contains a
provision for any defeasance of mortgage collateral, it either (A) requires
the consent of the holder of the Mortgage
<PAGE>
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.
39. Tax Parcels. The Mortgaged Property constitutes one or
more complete and separate tax lots.
<PAGE>
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
CHICAGO TELEPHONE 212 906 2000 WASHINGTON, D.C.
----- FACSIMILE 212 906 2021 -----
DALLAS LONDON
----- FOUNDED 1866 -----
LOS ANGELES SINGAPORE
-----
TOKYO
WRITER'S DIRECT NUMBER
December 16, 1998
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Dear Sirs:
Reference is made to the prospectus supplement dated
November 20, 1998 (the "Prospectus Supplement") and the accompanying
prospectus (the "Prospectus") dated November 20, 1998, relating to the
offering of eight classes of DLJ Commercial Mortgage Trust 1998-CF2,
Commercial Mortgage Pass-Through Certificates, Series 1998-CF2 (the "Offered
Certificates").
We have acted as tax counsel to DLJ Commercial Mortgage
Corp. (the "Company") in connection with the issuance of the Offered
Certificates. We have reviewed the statements under the heading "Federal
Income Tax Consequences" in each of the Prospectus and the Prospectus
Supplement; and, to the extent they constitute matters of Federal tax law or
legal conclusions with respect thereto, such statements while not discussing
all possible consequences of an investment in the Offered Certificates to all
investors, are correct in all material respects and constitute our opinion
regarding such matters of Federal tax law. In rendering this opinion, we have
relied without independent investigation on the description of the Offered
Certificates set forth in the Prospectus Supplement. We hereby consent to the
filing of this opinion as part of the Company's Registration Statement on Form
S-3 (No. 333-59167) as an exhibit to a Current Report on Form 8K.
We assume no obligation to update or supplement this letter
to reflect any facts or circumstances which may hereafter come to our
attention with respect to the opinion expressed above, including any changes
in applicable law which may hereafter occur.
Very truly yours,
/S/Sidley & Austin
