SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report: October 30, 1997
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(Date of earliest event reported)
Morgan Stanley Capital I Inc.
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(Exact name of registrant as specified in its charter)
Delaware 333-26667 13-3291626
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
1585 Broadway, New York, N.Y. 10036
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 296-7000
<PAGE>
Item 5. Other Events.
Attached is the Pooling and Servicing Agreement (as defined below) for the
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1997-XL1 (the "Certificates"). On October 17, 1997, Morgan Stanley
Capital I Inc. (the "Company") caused the issuance, pursuant to a Pooling and
Servicing Agreement, dated as of October 1, 1997 (the "Pooling and Servicing
Agreement"), by and among the Company, as seller, GMAC Commercial Mortgage
Corporation, as master servicer and special servicer, LaSalle National Bank, as
trustee, and ABN AMRO BANK N.V., as fiscal agent, of the Certificates, issued in
fourteen classes. The Class A-1, Class A-2, Class A-3, Class X, Class B, Class
C, Class D, Class E and Class F Certificates (the "Publicly Offered
Certificates"), with an aggregate principal balance as of October 1, 1997 of
$705,485,000, were sold to Morgan Stanley & Co. Incorporated ("MS&Co.") pursuant
to an Underwriting Agreement, dated October 9, 1997, by and between MS&Co., as
underwriter, and the Company.
Capitalized terms used herein and not defined herein have the same meanings
ascribed to such terms in the Pooling and Servicing Agreement.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Exhibit 4 Pooling and Servicing Agreement
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on behalf of the Registrant
by the undersigned thereunto duly authorized.
MORGAN STANLEY CAPITAL I INC.
By: /s/ James E. Flaum
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Name: James E. Flaum
Title: Vice President
Date: Octtober 30, 1997
<PAGE>
Exhibit Index
Item 601(a) of
Regulation S-K
Exhibit No. Description
4 Pooling and Servicing Agreement
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MORGAN STANLEY CAPITAL I INC.,
Depositor,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer,
LASALLE NATIONAL BANK,
Trustee,
and
ABN AMRO BANK N.V.,
Fiscal Agent
-------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 1997
--------------------------------
Commercial Mortgage Pass-Through Certificates
Series 1997-XL1
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms
SECTION 1.02. Certain Calculations
SECTION 1.03. Certain Constructions
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment
of Loan Sale Agreement
SECTION 2.02. Acceptance by Custodian and the Trustee
SECTION 2.03. Representations and Warranties of the Depositor
SECTION 2.04. Representations, Warranties and Covenants
of the Master Servicer and Special Servicer
SECTION 2.05. Execution and Delivery of Certificates;
Issuance of Lower-Tier Regular Interests
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer;
Administration of the Mortgage Loans
SECTION 3.02. Liability of the Master Servicer and Special Servicer
SECTION 3.03. Collection of Certain Mortgage Loan Payments
SECTION 3.04. Collection of Taxes, Assessments and Similar
Items; Escrow Accounts
SECTION 3.05. Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Class Q Distribution
Account; and Deferred Interest Distribution Account
SECTION 3.06. Permitted Withdrawals from the Collection Account
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the Borrower Accounts, and Other Accounts
SECTION 3.08. Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions
SECTION 3.10. Realization Upon Defaulted Mortgage Loans
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files
SECTION 3.12. Servicing Fees, Trustee Fees and Special
Servicing Compensation
SECTION 3.13. Reports to the Trustee; Collection Account Statements
SECTION 3.14. Annual Statement as to Compliance
SECTION 3.15. Annual Independent Public Accountants' Servicing Report
SECTION 3.16. Access to Certain Documentation
SECTION 3.17. Title and Management of REO Properties
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties
SECTION 3.19. Additional Obligations of the Master Servicer;
Inspections; Successor Manager
SECTION 3.20. Reports to the Securities and Exchange Commission;
Available Information
SECTION 3.21. Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts
SECTION 3.22. Property Advances
SECTION 3.23. Appointment of Special Servicer
SECTION 3.24. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping
SECTION 3.25. Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to
Specific Mortgage Loans
SECTION 3.26. Modifications
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions
SECTION 4.02. Statements to Certificateholders;
Available Information; Information
Furnished to Financial Market Publisher
SECTION 4.03. Compliance with Withholding Requirements
SECTION 4.04. REMIC Compliance
SECTION 4.05. Imposition of Tax on the Trust Fund
SECTION 4.06. Remittances; P&I Advances
SECTION 4.07. Grantor Trust Reporting
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
SECTION 5.02. Registration, Transfer and Exchange of Certificates
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates
SECTION 5.04. Appointment of Paying Agent
SECTION 5.05. Access to Certificateholders' Names and Addresses
SECTION 5.06. Actions of Certificateholders
SECTION 5.07. Authenticating Agent
SECTION 5.08. Appointment of Custodians
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL
SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer
and the Special Servicer
SECTION 6.02. Merger or Consolidation of the Master Servicer
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicer and Others
SECTION 6.04. Limitation on Resignation of the Master Servicer or
Special Servicer
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of
the Master Servicer and Special Servicer
SECTION 6.06. Master Servicer or Special Servicer as Owner of
a Certificate
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default
SECTION 7.02. Trustee to Act; Appointment of Successor
SECTION 7.03. Notification to Certificateholders
SECTION 7.04. Other Remedies of Trustee
SECTION 7.05. Waiver of Past Events of Default; Termination
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee
SECTION 8.02. Certain Matters Affecting the Trustee
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates
SECTION 8.05. Payment of Trustee Fees and Expenses; Indemnification
SECTION 8.06. Eligibility Requirements for Trustee
SECTION 8.07. Resignation and Removal of the Trustee
SECTION 8.08. Successor Trustee and Fiscal Agent
SECTION 8.09. Merger or Consolidation of Trustee
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent
SECTION 8.12. Representations and Warranties of the Trustee and
the Fiscal Agent
ARTICLE IX
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE
SECTION 9.01. Termination; Optional Mortgage Loan Purchase
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts
SECTION 10.02. Limitation on Rights of Certificateholders
SECTION 10.03. Governing Law
SECTION 10.04. Notices
SECTION 10.05. Severability of Provisions
SECTION 10.06. Notice to the Depositor and Each Rating Agency
SECTION 10.07. Amendment
SECTION 10.08. Confirmation of Intent
SECTION 10.09. Third-Party Beneficiaries
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class X Certificate
Exhibit A-5 Form of Class B Certificate
Exhibit A-6 Form of Class C Certificate
Exhibit A-7 Form of Class D Certificate
Exhibit A-8 Form of Class E Certificate
Exhibit A-9 Form of Class F Certificate
Exhibit A-10 Form of Class G Certificate
Exhibit A-11 Form of Class H Certificate
Exhibit A-12 Form of Class Q Certificate
Exhibit A-13 Form of Class R Certificate
Exhibit A-14 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Securities Legend
Exhibit G Loan Sale Agreement
Exhibit H Form of Summary Report
Exhibit I Form of Monthly Distribution Statement
Exhibit J Current Insurance Schedule
<PAGE>
Pooling and Servicing Agreement, dated as of October 1, 1997, among Morgan
Stanley Capital I Inc., as Depositor, GMAC Commercial Mortgage Corporation, as
Master Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary
Statement shall have the meanings
specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans. As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Lock-Box Accounts, Cash Collateral Accounts, Reserve Accounts,
the Default Interest, the Class Q Distribution Account, the Deferred Interest
and the Deferred Interest Distribution Account (such portion of the Trust Fund,
the "Trust REMICs"), be treated for federal income tax purposes as two separate
real estate mortgage investment conduits (each, a "REMIC" or, in the
alternative, the "Upper-Tier REMIC" and the "Lower-Tier REMIC," respectively).
The Class A-1, Class A-2, Class A-3, Class X, Class B, Class C, Class D, Class
E, Class F, Class G and Class H Certificates represent "regular interests" in
the Upper-Tier REMIC. The Class R Certificates constitute the sole class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The Class LR Certificates constitute the sole class of "residual
interests" in the Lower-Tier REMIC for purposes of the REMIC Provisions. There
are also ten classes of uncertificated Lower-Tier Regular Interests issued under
this Agreement (the Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC,
Class LD, Class LE, Class LF, Class LG and Class LH Interests), each of which
will constitute a regular interest in the Lower-Tier REMIC. All such Lower-Tier
Regular Interests will be held by the Trustee as assets of the Upper-Tier REMIC.
The parties intend that the portions of the Trust Fund representing assets of
the Grantor Trust, including the Default Interest, the Class Q Distribution
Account, the Deferred Interest and the Deferred Interest Distribution Account
will be treated as a grantor trust under Subpart E of Part 1 of Subchapter J of
the Code, that the Class Q Certificates represent pro rata undivided beneficial
interests in the portion of the Trust Fund consisting of the Default Interest,
subject to the obligation of the Trust Fund to pay Advance Interest Amounts, and
the Class Q Distribution Account, and that the Class B, Class C, Class D, Class
E, Class F, Class G and Class H Certificates represent undivided beneficial
interests in specified portions of the Trust Fund consisting of the Deferred
Interest and the Deferred Interest Distribution Account.
The following table sets forth the designation and aggregate initial
Certificate Principal Amount (or, with respect to the Class X Certificates,
aggregate initial Notional Amount) for each Class of Certificates (other than
the Class R, Class LR and Class Q Certificates).
Initial Certificate
Principal Amount or
Class Notional Amount
---------------------
Class A-1.................................$238,000,000
Class A-2.................................$ 64,000,000
Class A-3.................................$226,171,000
Class X(1)................................$754,531,157
Class B...................................$ 22,636,000
Class C...................................$ 22,636,000
Class D...................................$ 45,271,000
Class E...................................$ 45,271,000
Class F...................................$ 41,500,000
Class G...................................$ 26,408,000
Class H.................................. $ 22,638,157
(1) The initial Notional Amount of the Class X Certificates is equal to the
aggregate initial Certificate Principal Amounts of the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates, plus the amount of any unpaid Interest Shortfall on such Classes.
The Class Q, Class R and Class LR Certificates do not have Certificate
Principal Amounts or Notional Amounts. The Certificate Principal Amount of any
Class of Certificates outstanding at any time represents the maximum amount
which holders thereof are entitled to receive as distributions allocable to
principal from the cash flow on the Mortgage Loans and the other assets in the
Trust Fund; provided, however, that in the event that amounts previously
allocated as Realized Losses to a Class of Certificates in reduction of the
Certificate Principal Amount thereof are recovered subsequent to the reduction
of the Certificate Principal Amount of such Class to zero, such Class may
receive distributions in respect of such recoveries in accordance with the
priorities set forth in Section 4.01. As of the Cut-Off Date, the Mortgage Loans
have an aggregate Stated Principal Balance equal to $754,531,157.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent
agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"Act": The Securities Act of 1933, as it may be amended from time to time.
"Additional Trust Fund Expenses": (i) Special Servicing Fees, Special
Servicing Rehabilitation Fees and Liquidation Fees, (ii) interest in respect of
unreimbursed Advances, (iii) the cost of various default-related or
unanticipated Opinions of Counsel required or permitted to be obtained in
connection with the servicing of the Mortgage Loans and the administration of
the Trust Fund, (iv) unanticipated, non-Mortgage Loan specific expenses of the
Trust Fund, including indemnities and expense reimbursements to the Trustee,
indemnities and expense reimbursements to the Master Servicer, the Special
Servicer and the Depositor and federal, state and local taxes, and tax-related
expenses, specifically payable out of the Trust Fund and (v) any other
default-related or unanticipated expense of the Trust Fund not specifically
included in the calculation of Realized Loss for which there is no corresponding
collection from a borrower.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the aggregate
amount of P&I Advances and Property Advances for which the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, have not been
reimbursed for (i) the number of days from the date on which such Advance was
made, or (ii) with respect to P&I Advances, if the related Mortgage Loan
provides for a grace period, the first day after the expiration of such grace
period, and only to the extent the applicable Monthly Payment is not received
prior to the expiration of such grace period, in either case through the date of
reimbursement of the related Advance, less any amount of interest previously
paid on such Advance; provided, that, with respect to a P&I Advance, in the
event that the related Borrower makes payment of the amount in respect of which
such P&I Advance was made with interest at the Default Rate, the Advance
Interest Amount payable to the Master Servicer, the Trustee or the Fiscal Agent
shall be paid (i) first from the amount of Default Interest paid by the Borrower
and (ii) to the extent such amounts are insufficient therefor, from amounts on
deposit in the Collection Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most recently
published in the "Money Rates" section of The Wall Street Journal, New York
edition, on or before the related Record Date), compounded monthly, as of each
Master Servicer Remittance Date.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officers' Certificate of the Master Servicer, the Special
Servicer or the Depositor to determine whether any Person is an Affiliate of
such party.
"Affiliate Loan": Either of the following: (i) that certain loan made by
Secore to Hadwin LLC and Hawaiian 605 Mezzanine LLC, each an affiliate of the
Borrower with respect to the 605 Third Avenue Loan having an initial principal
balance of approximately $12,000,000; and (ii) that certain loan made by Secore
to The Grand Kempinski L.P., an affiliate of Borrower with respect to the Grand
Kempinski Loan having an initial principal balance of approximately $7,000,000.
"Affiliated Person": Any Person involved in the organization or operation
of the Depositor or an affiliate, as defined in Rule 405 of the Act, of such
Person.
"Agent Member": Members of, or participants in, the Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property as of any
date of determination, the portion of the principal balance of the related
Mortgage Loan then allocated to such Mortgaged Property in accordance with the
terms of the applicable Mortgage or Loan Agreement; provided, that the Allocated
Loan Amount for a Mortgaged Property shall not be decreased by the amount of any
release payment made by the related Borrower with respect to any other Mortgaged
Property securing the same Mortgage Loan, to the extent the amount of the
release payment paid by such Borrower with respect to such other Mortgaged
Property is in excess of the Allocated Loan Amount for such other Mortgaged
Property.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required by Section 3.14 hereof and an annual report of an
Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06.
"Applicable Procedures": As defined in Section 5.02(c)(iii).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan as of the last day of the related Collection Period over (b) the
excess of (i) 90% of the sum of the appraised values of the related Mortgaged
Properties as determined by Updated Appraisals obtained by the Special Servicer
(the cost of which shall be advanced by the Master Servicer as a Property
Advance) over (ii) the sum of (A) to the extent not previously advanced by the
Master Servicer, the Trustee or the Fiscal Agent, all unpaid interest on such
Mortgage Loan at a per annum rate equal to its Mortgage Rate (in the case of the
North Shore Towers Loan, net of the Hancock Retained Interest), (B) all
unreimbursed Advances, with interest thereon at the Advance Rate (to the extent
provided hereunder) in respect of such Mortgage Loan and (C) all currently due
and unpaid real estate taxes, ground rents, if applicable, and assessments and
insurance premiums and all other amounts due and unpaid with respect to such
Mortgage Loan (which taxes, premiums and other amounts have not been the subject
of an Advance by the Master Servicer, the Trustee or the Fiscal Agent, as
applicable). If no Updated Appraisal has been obtained within the 12 months
prior to the first Distribution Date on or after an Appraisal Reduction Event
has occurred, the Special Servicer shall estimate the value of the related
Mortgaged Properties (the "Special Servicer's Appraisal Estimate") and such
estimate shall be used for purposes of determining the Appraisal Reduction
Amount for such Distribution Date. Within 60 days after the Special Servicer
receives notice or is otherwise aware of the Appraisal Reduction Event, the
Special Servicer shall obtain an independent MAI appraisal, the cost of which
shall be paid by the Master Servicer as a Property Advance; provided, however,
that with respect to an Appraisal Reduction Event enumerated in clause (ii) of
the definition of Appraisal Reduction Event, the Special Servicer shall obtain
such appraisal no later than 120 days following the date of the related
delinquency. On the first Distribution Date occurring on or after the delivery
of such independent MAI appraisal, the Special Servicer shall adjust the
Appraisal Reduction Amount to take into account such appraisal (regardless of
whether the Updated Appraisal is higher or lower than the Special Servicer's
Appraisal Estimate). Each Appraisal Reduction Amount shall also be adjusted with
respect to the next Distribution Date to take into account any subsequent
Updated Appraisal and annual letter updates, as of the date of each such
subsequent Updated Appraisal or letter update. Upon payment in full or
liquidation of any Mortgage Loan for which an Appraisal Reduction Amount has
been determined, such Appraisal Reduction Amount will be eliminated.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which an extension of the
Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not change the amount of Monthly Payments on the
Mortgage Loan, (ii) 90 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
45 days after the date on which a reduction in the amount of Monthly Payments on
the Mortgage Loan, or a change in any other material economic term of the
Mortgage Loan, becomes effective as a result of a modification of such Mortgage
Loan by the Special Servicer, (iv) 30 days after a receiver in respect of the
related Mortgaged Property has been appointed, (v) immediately after a voluntary
or involuntary petition for bankruptcy has been filed against the related
Borrower in a court of competent jurisdiction and (vi) immediately after a
Mortgage Loan becomes an REO Mortgage Loan. The Special Servicer shall notify
the Master Servicer and the Master Servicer shall notify the Special Servicer,
as applicable, promptly upon the occurrence of any of the foregoing events.
"Arrowhead Towne Center Loan": The Mortgage Loan identified as No. 9 on the
Mortgage Loan Schedule.
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian and
the Master Servicer shall be responsible for determining whether any assignment
is legally sufficient or in recordable form.
"Assumption Fees": Any fees collected by the Master Servicer or Special
Servicer in connection with an assumption or modification of a Mortgage Loan or
substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the Trustee
pursuant to Section 5.07.
"Available Funds": For a Distribution Date, the sum of (i) all Monthly
Payments, Extended Monthly Payments, Balloon Payments or other receipts on
account of principal and interest (including Unscheduled Payments and any Net
REO Proceeds transferred from an REO Account pursuant to Section 3.17(b)) on or
in respect of the Mortgage Loans received by the Master Servicer in the
Collection Period relating to such Distribution Date, (ii) all other amounts
received by the Master Servicer in such Collection Period and required to be
placed in the Collection Account pursuant to Section 3.05 allocable to such
Mortgage Loans, and including all P&I Advances made by the Master Servicer, the
Trustee or the Fiscal Agent, as applicable, in respect of such Distribution Date
and (iii) any late payments of Monthly Payments received after the end of the
Collection Period relating to such Distribution Date but prior to the related
Master Servicer Remittance Date, but excluding the following:
(a) amounts permitted to be used to reimburse the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, for previously
unreimbursed Advances and interest thereon as described in Section 3.06(ii);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and an amount representing any applicable Special
Servicing Compensation with respect to such Distribution Date;
(c) all amounts in the nature of late fees (subject to Section 3.12
hereof), extension fees, loan service transaction fees, demand fees, beneficiary
statement charges, Assumption Fees and similar fees, and reinvestment earnings
on Investment Accounts which the Master Servicer or the Special Servicer is
entitled to retain as additional servicing compensation;
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds, Net Insurance Proceeds or the
Repurchase Price received with respect to a Mortgage Loan which represents any
unpaid Servicing Fee, Trustee Fee and Special Servicing Compensation, to which
the Master Servicer, Trustee and the Special Servicer, respectively, are
entitled;
(f) all amounts representing expenses specifically reimbursable or
payable to the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent and other amounts permitted to be retained by the Master Servicer or
withdrawn by the Master Servicer from the Collection Account to the extent
expressly set forth in this Agreement (including, without limitation, as
provided in Section 3.06 and including any indemnities provided for herein),
including interest thereon as provided in this Agreement;
(g) any interest or investment income on funds on deposit in the Collection
Account, the Upper-Tier Distribution Account, the Lower-Tier Distribution
Account, the Class Q Distribution Account, the Deferred Interest Distribution
Account, any Lock-Box Account, any Reserve Account, any Escrow Account, any Cash
Collateral Account or any REO Account or in Permitted Investments in which such
funds may be invested;
(h) all amounts received with respect to each Mortgage Loan previously
purchased or repurchased pursuant to Sections 2.03(c), 3.18 or 9.01 during the
related Collection Period and subsequent to the date as of which the amount
required to effect such purchase or repurchase was determined;
(i) the amount reasonably determined by the Trustee to be necessary to pay
any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or
the Lower-Tier REMIC under the circumstances and to the extent described in
Section 4.05;
(j) Prepayment Premiums;
(k) Default Interest;
(l) Deferred Interest; and
(m) with respect to the North Shore Towers Loan, amounts required to be
paid to John Hancock with respect to the Hancock Retained Interest.
"Balloon Payment": With respect to the North Shore Towers Loan, the Edens &
Avant Pool Loan, the Arrowhead Towne Center Loan, the Westgate Mall Loan and the
Yorktown Shopping Center Loan, the payments due on their respective stated
maturity dates.
"Beneficial Owner": With respect to a Global Certificate, the Person who is
the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository). Each
of the Trustee and the Master Servicer shall have the right to require, as a
condition to acknowledging the status of any Person as a Beneficial Owner under
this Agreement, that such Person provide evidence at its expense of its status
as a Beneficial Owner hereunder.
"Borrower": With respect to any Mortgage Loan, any obligor or obligors on
any related Note or Notes.
"Borrower Accounts": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any day on which
banking institutions in the City of New York, New York, the cities in which the
principal offices of the Master Servicer or Special Servicer are located, or the
city in which the Corporate Trust Office is located are authorized or obligated
by law, executive order or governmental decree to be closed.
"Cash Collateral Account": With respect to any Mortgaged Property, any
account or accounts created pursuant to the related Mortgage, Loan Agreement,
Cash Collateral Account Agreement or other loan document into which the Lock-Box
Account monies and/or property account monies are swept on a regular basis for
the benefit of the Trustee as successor to the related Originator. Any Cash
Collateral Account shall be beneficially owned for federal income tax purposes
by the Person who is entitled to receive all reinvestment income or gain thereon
in accordance with the terms and provisions of the related Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon. The Master Servicer shall be permitted to make withdrawals therefrom
for deposit into the Collection Account. To the extent not inconsistent with the
related Mortgage Loan, each such Cash Collateral Account shall be an Eligible
Account.
"Cash Collateral Account Agreement": With respect to any Mortgage Loan, the
cash collateral account agreement or similar agreement, if any, between the
Originator, the related Borrower, and the bank named as party thereto pursuant
to which the related Cash Collateral Account, if any, may have been established,
together with any "lock-box agreement" or other similar agreement entered into
pursuant to the terms of any such cash collateral account agreement or similar
agreement.
"Cash Deposit": An amount equal to all cash payments of principal and
interest received by the related Originator in respect of the Mortgage Loans
prior to or on the Closing Date that are due after the Cut-Off Date.
"CEDEL": Citibank, N.A., as depositary for CEDEL Bank, S.A., or its
successor in such capacity.
"Certificate": Any Class A-1, Class A-2, Class A-3, Class X, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class Q, Class R or Class LR
Certificate issued, authenticated and delivered hereunder.
"Certificate Custodian": Initially, LaSalle National Bank; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Principal Amount": With respect to any Class of Certificates
(other than the Class X, Class Q, Class R and Class LR Certificates) (a) on or
prior to the first Distribution Date, an amount equal to the aggregate initial
Certificate Principal Amount of such Class, as specified in the Preliminary
Statement hereto, and (b) as of any date of determination after the first
Distribution Date, the Certificate Principal Amount of such Class of
Certificates on the Distribution Date immediately prior to such date of
determination, after actual distributions of principal thereon and allocation of
Realized Losses thereto on such prior Distribution Date; provided that for
purposes of determining Voting Rights, the Certificate Principal Amount of each
of the Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates shall be deemed to have been reduced by the amount of any Appraisal
Reduction Amounts notionally allocated thereto pursuant to Section 4.01(i). With
respect to any Class of Lower-Tier Regular Interest, (a) on or prior to the
first Distribution Date, an amount equal to the aggregate initial Certificate
Principal Amount of the Class of Related Certificates with respect thereto, and
(b) as of any date of determination after the first Distribution Date, the
Certificate Principal Amount of such Class on the Distribution Date immediately
prior to such date of determination, after distribution of principal thereon and
allocation of Realized Losses thereto on such prior Determination Date in
accordance with Section 4.01(a).
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder": With respect to any Certificate, the Person whose name
is registered in the Certificate Register; provided, however, that, except to
the extent provided in the next proviso, solely for the purpose of giving any
consent or taking any action pursuant to this Agreement, any Certificate
beneficially owned by the Depositor, the Master Servicer, the Special Servicer,
the Trustee, a Manager of a Mortgaged Property, a Borrower or any Person known
to a Responsible Officer of the Certificate Registrar to be an Affiliate of the
Depositor, the Trustee, the Master Servicer or the Special Servicer shall be
deemed not to be outstanding and the Voting Rights to which it is entitled shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent or take any such action has
been obtained; provided, however, that (i) for purposes of obtaining the consent
of Certificateholders to an amendment of this Agreement, any Certificates
beneficially owned by the Master Servicer or the Special Servicer or an
Affiliate thereof shall be deemed to be outstanding, provided, that, such
amendment does not relate to compensation of the Master Servicer or the Special
Servicer or benefit the Master Servicer or the Special Servicer (in its capacity
as such) or any Affiliate thereof (other than solely in its capacity as
Certificateholder) in any material respect, in which case such Certificate shall
be deemed not to be outstanding; and (ii) for purposes of obtaining the consent
of Certificateholders to any action proposed to be taken by the Special Servicer
with respect to a Specially Serviced Mortgage Loan, any Certificates
beneficially owned by the Master Servicer or an Affiliate thereof shall be
deemed to be outstanding, provided that the Special Servicer is not the Master
Servicer. For purposes of obtaining the consent of Certificateholders to any
action with respect to a particular Mortgage Loan proposed to be taken by the
Master Servicer or Special Servicer, any Certificates beneficially owned by the
Affiliates of the related Borrower, the related Manager, or Affiliates of the
related Manager shall not be deemed to be outstanding.
Notwithstanding the foregoing, solely for purposes of providing or
distributing any reports, statements or other information required or permitted
to be provided to a Certificateholder hereunder, a Certificateholder shall
include any Beneficial Owner, or any Person identified by a Beneficial Owner as
a prospective transferee of a Certificate beneficially owned by such Beneficial
Owner but only if the Trustee or another party hereto furnishing such report,
statement or information has been provided with the name of the Beneficial Owner
of the related Certificate or the Person identified as a prospective transferee
thereof. For purposes of the foregoing, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent, the Fiscal Agent or other such
Person may rely, without limitation, on a participant listing from the
Depository or statements furnished by a Person that on their face appear to be
statements from a participant in the Depository to such Person indicating that
such Person beneficially owns Certificates.
"Class": With respect to the Certificates, all of the Certificates bearing
the same alphabetical and numerical class designation, and with respect to the
Lower-Tier Regular Interests, each interest bearing the applicable alphabetical
and numerical designation set forth in the Preliminary Statement hereto.
"Class A Certificates": Class A-1 Certificates, the Class A-2 Certificates
and the Class A-3 Certificates.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-1 hereto.
"Class A-1 Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class A-1
Certificates.
"Class A-1 Pass-Through Rate": A per annum rate equal to 6.590%.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-2 hereto.
"Class A-2 Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class A-2
Certificates.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.880%; provided,
however, that in no event shall the Class A-2 Pass-Through Rate exceed the WAC
Rate on any Distribution Date.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-3 hereto.
"Class A-3 Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class A-3
Certificates.
"Class A-3 Pass-Through Rate": A per annum rate equal to 6.995%; provided,
however, that in no event shall the Class A-3 Pass-Through Rate exceed the WAC
Rate on any Distribution Date.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-5 hereto.
"Class B Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class B
Certificates.
"Class B Pass-Through Rate": With respect to the initial Distribution Date,
6.94%, and thereafter, a per annum rate equal to the WAC Rate minus 1.07%.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-6 hereto.
"Class C Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class C
Certificates.
"Class C Pass-Through Rate": With respect to the initial Distribution Date,
6.99%, and thereafter, a per annum rate equal to the WAC Rate minus 1.03%.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-7 hereto.
"Class D Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class D
Certificates.
"Class D Pass-Through Rate": With respect to the initial Distribution Date,
7.07%, and thereafter, a per annum rate equal to the WAC Rate minus 0.93%.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-8 hereto.
"Class E Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class E
Certificates.
"Class E Pass-Through Rate": With respect to the initial Distribution Date,
7.17%, and thereafter, a per annum rate equal to the WAC Rate minus 0.74%.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-9 hereto.
"Class F Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class F
Certificates.
"Class F Pass-Through Rate": With respect to the initial Distribution Date,
7.42%, and thereafter, a per annum rate equal to the WAC Rate minus 0.65%.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-10 hereto.
"Class G Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class G
Certificates.
"Class G Pass-Through Rate": With respect to the initial Distribution Date,
7.695%, and thereafter, a per annum rate equal to the WAC Rate minus 0.37%.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-11 hereto.
"Class H Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class H
Certificates.
"Class H Pass-Through Rate": A per annum rate equal to 6.590%.
"Class LA-1 Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LA-2 Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LA-3 Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LB Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LC Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LD Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LE Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LF Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LG Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LH Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LR Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-14 hereto. The Class LR Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional Amount.
"Class Prepayment Percentage": With respect to any Class of Certificates
(other than the Class X and Residual Certificates) and any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the portion of
the Principal Distribution Amount to be distributed to the Holders of such Class
of Certificates on such Distribution Date, and the denominator of which is the
aggregate Principal Distribution Amount for such Distribution Date.
"Class Q Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-12 hereto and entitled to the distributions payable thereto pursuant
to Section 4.01(d). The Class Q Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional Amount. The Class Q Certificates
represent a beneficial ownership interest in the Default Interest, subject to
the obligation to pay interest on Advances.
"Class Q Distribution Account": The account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.05(c), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1997-XL1, Class Q Certificateholders, Class Q Distribution
Account" and which must be an Eligible Account. The Class Q Distribution Account
shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-13 hereto. The Class R Certificates have no
Pass-Through Rate, Certificate Principal Amount or Notional Amount.
"Class X Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-4 hereto.
"Class X Notional Amount": For any date of determination, a notional
principal amount equal to the aggregate of the Certificate Principal Amounts of
the Principal Balance Certificates as of the preceding Distribution Date (after
giving effect to the distributions of principal on such Distribution Date), plus
the amount of any unpaid Interest Shortfall or, in the case of the first
Distribution Date, as of the Closing Date.
"Class X Pass-Through Rate": A per annum rate equal to the weighted average
of the Pass-Through Rates on the Class A-1 Component, the Class A-2 Component,
the Class A-3 Component, the Class B Component, the Class C Component, the Class
D Component, the Class E Component, the Class F Component, the Class G Component
and the Class H Component (each, a "Component Pass-Through Rate"), weighted on
the basis of their respective Notional Amounts. The Pass-Through Rate on the
Class A-1 Component is a per annum rate equal to the WAC Rate minus the Class
A-1 Pass-Through Rate. The Pass-Through Rate on the Class A-2 Component is a per
annum rate equal to the WAC Rate minus the Class A-2 Pass-Through Rate. The
Pass-Through Rate on the Class A-3 Component is a per annum rate equal to the
WAC Rate minus the Class A-3 Pass-Through Rate. The Pass-Through Rate on the
Class B Component is a per annum rate equal to 1.07%. The Pass-Through Rate on
the Class C Component is a per annum rate equal to 1.03%. The Pass-Through Rate
on the Class D Component is a per annum rate equal to 0.93%. The Pass-Through
Rate on the Class E Component is a per annum rate equal to 0.74%. The
Pass-Through Rate on the Class F Component is a per annum rate equal to 0.65%.
The Pass-Through Rate on the Class G Component is a per annum rate equal to
0.37%. The Pass-Through Rate on the Class H Component is a per annum rate equal
to the WAC Rate minus the Class H Pass-Through Rate.
"Closing Date": October 17, 1997.
"Code": The Internal Revenue Code of 1986, as amended from time to time,
any successor statute thereto, and any temporary or final regulations of the
United States Department of the Treasury promulgated pursuant thereto.
"Collection Account": The account or accounts created and maintained by the
Master Servicer pursuant to Section 3.05(a), which shall be entitled "GMAC
Commercial Mortgage Corporation, in trust for LaSalle National Bank, as Trustee,
in trust for Holders of Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1, Collection Account" and which must
be an Eligible Account.
"Collection Period": With respect to a Distribution Date and each Mortgage
Loan, the period beginning on the day after the Due Date in the month preceding
the month in which such Distribution Date occurs (or, in the case of the
Distribution Date occurring on November 5, 1997, on the day after the Cut-Off
Date) and ending on the Due Date in the month in which such Distribution Date
occurs.
"Commission": The Securities and Exchange Commission.
"Component Pass-Through Rate": Has the meaning set forth in the definition
of Class X Pass-Through Rate.
"Corporate Trust Office": The principal office of the Trustee located at
135 South LaSalle Street, 16th floor, Chicago, Illinois 60603, Attention: Asset
Backed Trust Services Group-Morgan Stanley 1997-XL1, or the principal trust
office of any successor trustee qualified and appointed pursuant to Section
8.08.
"Cross-over Date": The Distribution Date on which the Certificate Principal
Amount of each Class of Subordinate Certificates has been reduced to zero.
"Custodial Agreement": The custodial agreement, if any, from time to time
in effect between the Custodian named therein and the Trustee, as the same may
be amended or modified from time to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 5.08 and, unless
the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee or the Master Servicer or any
Affiliate of the Trustee or the Master Servicer, but may not be the Depositor or
any Affiliate thereof.
"Cut-Off Date": October 1, 1997.
"Default Interest": With respect to any Mortgage Loan, interest accrued on
such Mortgage Loan at the excess of the related Default Rate over the sum of the
related Mortgage Rate plus, if applicable, the Excess Rate for such Mortgage
Loan. The Default Interest shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Default Rate": With respect to each Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan following any event of default on
such Mortgage Loan, including a default in the payment of a Monthly Payment, as
such rate is set forth on the Mortgage Loan Schedule.
"Deferred Interest": With respect to each Mortgage Loan (other than the
North Shore Towers Loan, the Edens & Avant Pool Loan, the Arrowhead Towne Center
Loan, the Westgate Mall Loan and the Yorktown Shopping Center Loan), interest
accrued on such Mortgage Loan at the related Excess Rate plus interest thereon
to the extent permitted by applicable law at the related Revised Mortgage Rate.
Deferred Interest shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Deferred Interest Distribution Account": The trust account or accounts
created and maintained as a separate account or accounts by the Trustee pursuant
to Section 3.05(d), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1, Deferred Interest Distribution
Account" and which must be an Eligible Account. The Deferred Interest
Distribution Account shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Deferred Interest Distribution Percentage": 5.0% with respect to the Class
B Certificates, 7.0% with respect to the Class C Certificates, 15.0% with
respect to the Class D Certificates, 15.0% with respect to the Class E
Certificates, 17.0% with respect to the Class F Certificates, 19.0% with respect
to the Class G Certificates, and 22.0% with respect to the Class H Certificates.
"Denomination": As defined in Section 5.01.
"Depositor": Morgan Stanley Capital I Inc., a Delaware corporation, and its
successors and assigns.
"Depository": The Depository Trust Company or a successor appointed by the
Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Directing Class": As defined in Section 3.26.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space "for occupancy only" within
the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business or any use of
such REO Property in a trade or business conducted by the Trust Fund, or the
performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10 percent of the
construction of such building or improvement was completed before default became
imminent), other than through an Independent Contractor; provided, however, that
the Special Servicer, on behalf of the Trust Fund, shall not be considered to
Directly Operate an REO Property solely because the Special Servicer, on behalf
of the Trust Fund, establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property or takes other actions
consistent with Section 1.856-4(b)(5)(ii) of the regulations of the United
States Department of the Treasury.
"Discount Rate": The rate which, when compounded monthly, is equivalent to
the Treasury Rate when compounded semi-annually.
"Disqualified Non-U.S. Person": With respect to a Class R or Class LR
Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R or Class LR Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R or Class LR Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in Code
Section 860E(c)(1)) with respect to the Class R or Class LR Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural electric
and telephone cooperatives described in Code Section 1381(a)(2), or (e) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel to the effect that any Transfer to such Person may cause the Upper-Tier
REMIC or Lower-Tier REMIC to be subject to tax or to fail to qualify as a REMIC
at any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
"Distribution Date": The third Business Day of each month, commencing on
November 5, 1997.
"Due Date": With respect to any Mortgage Loan, the first day of each month,
and with respect to any Distribution Date, the Due Date occurring in the month
in which such Distribution Date occurs.
"Early Termination Notice Date": Any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the sum of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date.
"Edens & Avant Loan": The Mortgage Loan identified as No. 2 on the Mortgage
Loan Schedule.
"Effective Maturity Date": With respect to each Mortgage Loan (other than
the North Shore Towers Loan, the Edens & Avant Pool Loan, the Arrowhead Towne
Center Loan, the Westgate Mall Loan and the Yorktown Shopping Center Loan), the
date set forth below opposite such Mortgage Loan:
Mansion Grove Loan.................. July 1, 2007
605 Third Avenue Loan............... October 1, 2007
Mark Centers Trust Pool Loan........ October 31, 2006
Fashion Mall Loan................... June 13, 2007
Westshore Mall Loan................. March 1, 2004
FGS Pool Loan....................... January 21, 2007
Grand Kempinski Loan................ October 1, 2007
"Eligible Account": Either (i) an account or accounts (A) maintained with
either a federal or state chartered depository institution or trust company (x)
if the deposits are to be held in such account 30 days or more, the long-term
unsecured debt obligations of which are rated by each of the Rating Agencies in
one of its two highest rating categories (without regard to pluses or minuses)
at all times, or (y) if the deposits are to be held in such account less than 30
days, the short-term unsecured debt obligations or commercial paper of which are
rated by each of the Rating Agencies in one of its two highest rating categories
(or in the case of Moody's, with respect to commercial paper, "P-1") at all
times (or if not rated by Fitch, in the highest rating category by each other
Rating Agency) or (B) if the obligations of any such institution are not rated
by any one or more Rating Agencies, or if they are rated in a category lower
than required herein, as to which the Master Servicer or the Trustee, as
applicable, has received written confirmation from each such Rating Agency that
holding funds in such account would not cause such Rating Agency to qualify,
withdraw or downgrade any of its ratings on the Certificates or (ii) a
segregated trust account or accounts maintained with the corporate trust
department of a federal depository institution or state chartered depository
institution or trust company which is subject to regulations regarding fiduciary
funds on deposit substantially similar to 12 C.F.R. ss. 9.10(b), which, in each
case, has corporate trust powers, acting in its fiduciary capacity, or (iii) any
other account that, as evidenced by a written confirmation from each Rating
Agency, would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates, which may
be an account maintained with the Trustee or the Master Servicer.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A, or (ii) an Institutional Accredited Investor.
"Environmental Report": The environmental audit report or reports with
respect to each Mortgaged Property delivered to the related Originator in
connection with the origination of the related Mortgage Loan.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"Escrow Account": As defined in Section 3.04(b).
"Escrow Payment": Any payment made by any Borrower to the Master Servicer
pursuant to the related Mortgage, Lock-Box Agreement, Cash Collateral Account
Agreement, or Loan Agreement for the account of such Borrower for application
toward the payment of taxes, insurance premiums, assessments, ground rents and
similar items in respect of the related Mortgaged Property.
"Euroclear": Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Master Servicer Event of Default or Special Servicer
Event of Default, as applicable.
"Excess Prepayment Interest Shortfall": With respect to any Distribution
Date, the aggregate amount by which the Prepayment Interest Shortfall with
respect to all Principal Prepayments received during the related Collection
Period exceeds the aggregate Servicing Fee (minus the Trustee Fee and the
Mansion Grove Subservicing Fee) available to be paid to the Master Servicer for
such Distribution Date.
"Excess Rate": With respect to each Mortgage Loan (other than the North
Shore Towers Loan, the Edens & Avant Pool Loan, the Arrowhead Towne Center Loan,
the Westgate Mall Loan and the Yorktown Shopping Center Loan), the excess of the
related Revised Mortgage Rate over the related Mortgage Rate, each as set forth
in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A Form 8-K, Form 10-K, Form 10-Q or Form 12b-25 to
be filed with the Commission, under cover of the related form required by the
Exchange Act.
"Extended Monthly Payment": With respect to any extension of a Mortgage
Loan as to which any principal balance and accrued interest remains unpaid on
its Maturity Date (such unpaid amount, a "Balance"), an amount equal to (a) a
deemed principal portion of a revised monthly payment (which will be calculated
based on an amortization schedule which would fully amortize the applicable
Balance over a term that does not extend past the date occurring two years prior
to the Rated Final Distribution Date (commencing on the Maturity Date of such
Mortgage Loan) and an interest rate no less than the Mortgage Rate with respect
to such Mortgage Loan), and (b) interest at the applicable Default Rate;
provided, however, that the Special Servicer may agree that the Extended Monthly
Payments may include interest at a rate lower than the related Default Rate
(but, except as otherwise provided herein, not lower than the related Mortgage
Rate).
"Fashion Mall Loan": The Mortgage Loan identified as No. 6 on the Mortgage
Loan Schedule.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FGS Pool Loan": The Mortgage Loan identified as No. 3 on the Mortgage Loan
Schedule.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or any Mortgage Loan subject to repurchase by MSMC pursuant to
Section 2.03(c), the recovery of all Insurance Proceeds, Liquidation Proceeds,
the related Repurchase Price and other payments or recoveries (including
proceeds of the final sale of any REO Property) which the Master Servicer (or in
the case of a Specially Serviced Mortgage Loan, the Special Servicer), in its
reasonable judgment as evidenced by a certificate of a Servicing Officer
delivered to the Trustee and the Custodian (and the Master Servicer, if the
certificate is from the Special Servicer), expects to be finally recoverable.
The Master Servicer shall maintain records, prepared by a Servicing Officer, of
each Final Recovery Determination until the earlier of (i) its termination as
Master Servicer hereunder and the transfer of such records to a successor Master
Servicer and (ii) five years following the termination of the Trust Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Financial Report": A Form 8-K including as exhibits under Item 7 of Form
8-K the financial statements and other financial information required to be
filed as described in Sections 3.20 and 4.02.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation in
its capacity as fiscal agent of the Trustee, or its successor in interest, or
any successor fiscal agent appointed as herein provided.
"Fitch": Fitch Investors Service, L.P., or its successor in interest.
"Fixed Voting Rights Percentage": As defined in the definition of "Voting
Rights."
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or such
successor form as the Commission may specify from time to time.
"Form 10-K": An Annual Report on Form 10-K under the Exchange Act, or such
successor form as the Commission may specify from time to time.
"Form 10-Q": A Quarterly Report on Form 10-Q under the Exchange Act, or
such successor form as the Commission may specify from time to time.
"Form 12b-25": A Notification of Late Filing required by Rule 12b-25 under
the General Rules and Regulations under the Exchange Act.
"Form 15": A Form 15 in accordance with the provisions of Rule 12b-3 under
the Exchange Act, suspending the reporting obligations under the Exchange Act
set forth herein.
"Global Certificates": The Class A-1, Class A-2, Class A-3, Class B, Class
C, Class D, Class E, Class F, Class G, Class H and Class X Certificates.
"Grand Kempinski Loan": The Mortgage Loan identified as No. 8 on the
Mortgage Loan Schedule.
"Grantor Trust": A segregated asset pool within the Trust Fund consisting
of the Default Interest, Deferred Interest and amounts held from time to time in
the Class Q Distribution Account and the Deferred Interest Distribution Account.
"Hancock Agreement": The agreement between MSMC and John Hancock, dated
September 24, 1997, pursuant to which MSMC acquired the North Shore Towers Loan
from John Hancock.
"Hancock Retained Interest": The portion of the interest on the North Shore
Towers Loan, accruing at a rate of 2.57% per annum, retained by John Hancock
pursuant to the Hancock Agreement.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now or hereafter existing, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, 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.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnified Party": As defined in Section 8.05(c).
"Indemnifying Party": As defined in Section 8.05(c).
"Independent": When used with respect to any specified Person, any such
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Master
Servicer, the Special Servicer, any Borrower or any Affiliate thereof, and (ii)
is not connected with any such Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall
be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel (at the expense of the party seeking to
be deemed an Independent Contractor) addressed to the Master Servicer and the
Trustee has been delivered to the Trustee to that effect) or (ii) any other
Person (including the Master Servicer and the Special Servicer) if the Master
Servicer, on behalf of itself and the Trustee, has received an Opinion of
Counsel (at the expense of the party seeking to be deemed an Independent
Contractor) to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code) or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property (provided that such income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully registered
form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Act, or an
entity in which all the equity owners meet such requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance policy,
title policy or other insurance policy relating to a Mortgage Loan (including
any amounts paid by the Master Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and any
Class of Principal Balance Certificates, an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
related Certificate Principal Amount (provided, that for interest accrual
purposes any distributions in reduction of Certificate Principal Amount or
reductions in Certificate Principal Amount as a result of allocations of
Realized Losses on the Distribution Date occurring in an Interest Accrual Period
shall be deemed to have been made on the first day of such Interest Accrual
Period). With respect to any Distribution Date and the Class X Certificates, an
amount equal to interest for the related Interest Accrual Period at the
Pass-Through Rate for such Class for such Interest Accrual Period on the
Notional Amount of such Class (provided, that for interest accrual purposes any
distributions in reduction of Notional Amount or reductions in Notional Amount
as a result of allocations of Realized Losses on the Distribution Date occurring
in an Interest Accrual Period shall be deemed to have been made on the first day
of such Interest Accrual Period). Calculations of interest due in respect of the
Regular Certificates shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution Date and with
respect to each Class of Certificates, the calendar month preceding the month in
which such Distribution Date occurs. Each Interest Accrual Period is assumed to
consist of 30 days.
"Interest Distribution Amount": With respect to any Distribution Date and
each Class of Regular Certificates, an amount equal to (A) the sum of (i) the
Interest Accrual Amount for such Distribution Date and (ii) the Interest
Shortfall, if any, for such Distribution Date, less (B) any Excess Prepayment
Interest Shortfall allocated to such Class on such Distribution Date pursuant to
Section 4.01(f).
"Interest Shortfall": With respect to any Distribution Date for any Class
of Regular Certificates, the sum of (a) the excess, if any, of (i) the Interest
Distribution Amount for such Class for the immediately preceding Distribution
Date, over (ii) all distributions of interest (other than Deferred Interest)
made with respect to such Class on the immediately preceding Distribution Date,
and (b) to the extent permitted by applicable law, (i) other than in the case of
the Class X Certificates, one month's interest on any such excess at the
Pass-Through Rate applicable to such Class for the current Distribution Date and
(ii) in the case of the Class X Certificates, one month's interest on any such
excess at the WAC Rate for such Distribution Date.
"Interested Person": As of any date of determination, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any
Borrower, any manager of a Mortgaged Property, any Independent Contractor
engaged by the Special Servicer pursuant to Section 3.17, or any Person known to
a Responsible Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section 5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"John Hancock": John Hancock Mutual Life Insurance Company, a Massachusetts
corporation.
"Liquidation Expenses": Expenses incurred by the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent in connection with the
liquidation of any Mortgage Loan or property acquired in respect thereof
(including, without limitation, legal fees and expenses, committee or referee
fees, and, if applicable, brokerage commissions, and conveyance taxes) and any
Property Protection Expenses incurred with respect to such Mortgage Loan or such
property including interest on the related Property Advances at the Advance Rate
not previously reimbursed from collections or other proceeds therefrom.
"Liquidation Fee": With respect to any Mortgage Loan or REO Property which
is sold or transferred or otherwise liquidated, an amount equal to 0.75% of the
amount equal to (a) the Liquidation Proceeds of such Mortgage Loan or REO
Property (other than any such proceeds specified in clause (i) of the definition
of Liquidation Proceeds) minus (b) any broker's commission and related brokerage
referral fees.
"Liquidation Proceeds": The amount (other than Insurance Proceeds) received
in connection with (i) the taking of a Mortgaged Property (or portion thereof)
by exercise of the power of eminent domain or condemnation, (ii) the liquidation
of a Specially Serviced Mortgage Loan through a trustee's sale, foreclosure sale
or otherwise or (iii) a sale of a Mortgage Loan or an REO Property in accordance
with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan, the loan agreement, if
any, between the related Originator and the Borrower, pursuant to which such
Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the documents executed
or delivered in connection with the origination of such Mortgage Loan or
subsequently added to the related Mortgage File.
"Loan Number": With respect to any Mortgage Loan, the loan number by which
such Mortgage Loan was identified on the books and records of the Depositor or
any sub-servicer for the Depositor, as set forth in the Mortgage Loan Schedule.
"Loan Sale Agreement": The Loan Sale Agreement, dated as of the Cut-Off
Date, by and between the Depositor and MSMC, a copy of which is attached hereto
as Exhibit G.
"Lock-Box Account": With respect to any Mortgaged Property, if applicable,
any account created pursuant to any documents relating to a Mortgage Loan to
receive rental or other income generated by the Mortgaged Property. Any Lock-Box
Account shall be beneficially owned for federal income tax purposes by the
Person who is entitled to receive the reinvestment income or gain thereon in
accordance with the terms and provisions of the related Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon. With respect to any Mortgage Loan as to which there is a Lock-Box
Account but not a separate Cash Collateral Account, (i) the Master Servicer
shall be permitted to make withdrawals from the related Lock-Box Account for
deposit into the Collection Account and (ii) to the extent not inconsistent with
the related Mortgage Loan, each such Lock-Box Account shall be an Eligible
Account.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box or
other similar agreement, if any, between the related Originator and the
Borrower, pursuant to which the related Lock-Box Account, if any, may have been
established.
"Lock-out Period": With respect to any Mortgage Loan, the period of time,
if any, specified in the related Loan Documents during which voluntary
prepayments by the related Borrower are prohibited.
"Lower-Tier Distribution Account": The account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1997-XL1, Lower-Tier Distribution Account" and which must
be an Eligible Account.
"Lower-Tier Regular Interests": The Class LA-1, Class LA-2, Class LA-3,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG and Class LH
Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest and Deferred
Interest), collections thereon, any REO Property acquired in respect thereof and
all proceeds of such REO Property, other property of the Trust Fund related
thereto, and amounts held in respect thereof from time to time in the Collection
Account and the Lower-Tier Distribution Account.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan, any management
agreement, by and between any Manager with respect to any related Mortgaged
Property and the related Borrower, or any successor management agreement between
such parties. With respect to the 605 Third Avenue Loan, the term Management
Agreement shall also include the Cleaning Agreement (as defined in the Loan
Agreement for such Mortgage Loan) or any successor agreement thereto.
"Manager": With respect to any Mortgage Loan, any property manager or
property managers for the related Mortgaged Property or Mortgaged Properties.
With respect to the 605 Third Avenue Loan the term "Manager" shall also include
605 Cleaning Service Co. or any successor provider of cleaning services.
"Mansion Grove Loan": The Mortgage Loan identified as No. 4 on the Mortgage
Loan Schedule.
"Mansion Grove Subservicer": The subservicer of the Mansion Grove Loan,
which initially is Trowbridge, Kieselhorst & Co. Inc., a California corporation.
"Mansion Grove Subservicing Fee": The compensation payable by the Master
Servicer to the Mansion Grove Subservicer which shall in no event exceed an
amount equal to the product of (i) 1/12 times 0.0218% and (ii) the Stated
Principal Balance of the Mansion Grove Loan.
"Mark Centers Trust Pool Loan": The Mortgage Loan identified as No. 10 on
the Mortgage Loan Schedule.
"Master Servicer": GMAC Commercial Mortgage Corporation, a California
corporation or its successor in interest, or any successor Master Servicer
appointed as herein provided.
"Master Servicer Event of Default": As defined in Section 7.01(a).
"Master Servicer Remittance Date": With respect to any Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicer Remittance Report": A report prepared by the Master
Servicer in such media as may be agreed upon by the Master Servicer and the
Trustee containing such information regarding the Mortgage Loans as will permit
the Trustee to calculate the amounts to be distributed pursuant to Section 4.01
and to furnish statements to Certificateholders pursuant to Section 4.02 and
containing such additional information as the Master Servicer and the Trustee
may from time to time agree.
"Maturity Date": With respect to each Mortgage Loan, the maturity date as
set forth on the Mortgage Loan Schedule.
"Monthly Distribution Statement": As defined in Section 4.02(a).
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan) and any Due Date, the scheduled monthly payment of principal (if
any) and interest at the related Mortgage Rate, which is payable by the related
Borrower on such Due Date under the related Note or Notes, but not including any
Balloon Payment. The Monthly Payment with respect to (i) an REO Mortgage Loan,
or (ii) any Mortgage Loan which is delinquent at its maturity date and with
respect to which the Special Servicer does not enter into an extension, is the
monthly payment that would otherwise have been payable on the related Due Date
had the related Note not been discharged or the related maturity date had not
been reached, as the case may be, determined as set forth in the preceding
sentence and on the assumption that all other amounts, if any, due thereunder
are paid when due.
"Moody's": Moody's Investors Service, Inc., or its successor in interest.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage documents
listed in Section 2.01(i) through (xvi) pertaining to such particular Mortgage
Loan and any additional documents required to be added to such Mortgage File
pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01 and from time to time held in the Trust Fund,
the mortgage loans originally so transferred, assigned and held being identified
on the Mortgage Loan Schedule as of the Cut-Off Date. Such term shall include
any REO Mortgage Loan or defeased Mortgage Loan.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the Trust
Fund as of the Closing Date being attached hereto as Exhibit B, which list shall
set forth the following information with respect to each Mortgage Loan:
(a) the Borrower's name;
(b) the Monthly Payment in effect as of the Cut-Off Date;
(c) the Mortgage Rate (separately identifying the Default Rate, the Excess
Rate and the Revised Mortgage Rate, if any), including the interest calculation
convention (i.e., "30/360" or "actual/360");
(d) the Net Mortgage Rate in effect at the Cut-Off Date;
(e) the original principal balance;
(f) the original term to stated maturity, remaining term to stated
maturity, and Maturity Date;
(g) the original and remaining amortization terms;
(h) the Stated Principal Balance as of the Cut-Off Date;
(i) the loan-to-value ratio as of the Cut-Off Date;
(j) the applicable Servicing Fee Rate;
(k) the applicable Loan Number; and
(l) the number of Mortgaged Properties securing such Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clauses (b) and (h) above for all of the Mortgage Loans.
"Mortgage Rate": With respect to any Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan as stated in the related Note, in
each case without giving effect to the Excess Rate or the Default Rate with
respect to any Mortgage Loan. Notwithstanding the foregoing, if any Mortgage
Loan does not accrue interest on the basis of a 360-day year consisting of
twelve 30-day months, then, for purposes of calculating Pass-Through Rates, the
Mortgage Rate of such Mortgage Loan for any one-month period preceding a related
Due Date shall be a per annum rate equal to the Mortgage Rate thereof multiplied
by a fraction, the numerator of which is the actual number of days in such
Interest Accrual Period and the denominator of which is 30.
"Mortgaged Property": The underlying property or in the case of a Mortgage
Loan secured by multiple properties, any one of the underlying properties,
securing a Mortgage Loan, including any REO Property, consisting of a fee simple
estate, and, with respect to certain Mortgage Loans, a leasehold estate, or both
a leasehold estate and a fee simple estate, or a leasehold estate in a portion
of the property and a fee simple estate in the remainder, in one or more parcels
of land improved by a commercial or multifamily property, together with any
personal property, fixtures, leases and other property or rights pertaining
thereto.
"MSMC": Morgan Stanley Mortgage Capital Inc., a New York corporation.
"Net Default Interest": As defined in Section 3.05(c).
"Net Insurance Proceeds": Insurance Proceeds, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property or
released to the Borrower in accordance with the express requirements of the
Mortgage or Note or other Loan Documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with respect
to any Mortgage Loan net of the amount of (i) Liquidation Expenses incurred with
respect thereto and, (ii) with respect to proceeds received in connection with
the taking of a Mortgaged Property (or portion thereof) by the power of eminent
domain in condemnation, amounts required to be applied to the restoration or
repair of the related Mortgaged Property.
"Net Mortgage Rate": With respect to any Mortgage Loan and any Distribution
Date, the per annum rate equal to the Mortgage Rate for such Mortgage Loan minus
(i) the related Servicing Fee Rate, and (ii) in the case of the North Shore
Towers Loan, minus the Hancock Retained Interest; provided, however, that for
purposes of calculating any Pass-Through Rate, the Net Mortgage Rate of such
Mortgage Loan shall be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Special
Servicer or resulting from bankruptcy, insolvency or similar proceeding
involving the related Borrower.
"Net REO Proceeds": With respect to each REO Property and any related REO
Mortgage Loan, REO Proceeds with respect to such REO Property or REO Mortgage
Loan net of any insurance premiums, taxes, assessments, ground rents and other
costs and expenses permitted to be paid therefrom pursuant to Section 3.17(b) of
this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the Trust
Fund, including any lease renewed or extended on behalf of the Trust Fund if the
Trust Fund has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any portion of an Advance proposed to be made or
previously made which has not been previously reimbursed to the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as applicable, and which,
in the good faith business judgment of the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, will not or, in the
case of a proposed Advance, would not be ultimately recoverable from late
payments, Insurance Proceeds, Liquidation Proceeds and other collections on or
in respect of the related Mortgage Loan. The judgment or determination by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent that it
has made a Nonrecoverable Advance or that any proposed Advance, if made, would
constitute a Nonrecoverable Advance shall be evidenced in the case of the Master
Servicer or Special Servicer, by a certificate of a Servicing Officer delivered
to the Trustee, the Fiscal Agent, the Depositor and, in the case of the Special
Servicer, to the Master Servicer, and in the case of the Trustee or the Fiscal
Agent, by a certificate of a Responsible Officer of the Trustee or Fiscal Agent,
as applicable, delivered to the Depositor (and the Trustee if the certificate is
from the Fiscal Agent), which in each case sets forth such judgment or
determination and the procedures and considerations of the Master Servicer,
Special Servicer, Trustee or Fiscal Agent, as applicable, forming the basis of
such determination (including, but not limited to, information selected by the
Person making such judgment or determination in its good faith discretion, such
as related income and expense statements, rent rolls, occupancy status, property
inspections, Master Servicer, Special Servicer, Trustee or Fiscal Agent
inquiries, third party engineering and environmental reports, and an appraisal
conducted by an MAI appraiser in accordance with MAI standards or any Updated
Appraisal thereof conducted within the past 12 months; copies of such documents
to be included with the certificate of a Responsible Officer). Any determination
of non-recoverability made by the Master Servicer may be made without regard to
any value determination made by the Special Servicer other than pursuant to an
Updated Appraisal. Any determination by the Master Servicer or Special Servicer
that an Advance is non-recoverable or would be non-recoverable if made, may be
conclusively relied upon by the Trustee and the Fiscal Agent.
"Non-U.S. Person": A person that is not a U.S. Person.
"North Shore Towers Loan": The Mortgage Loan identified as No. 5 on the
Mortgage Loan Schedule.
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of a Borrower under such Mortgage Loan, including any amendments or
modifications, or any renewal or substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Trustee by the
Master Servicer, the Depositor or any Holder of a Class LR Certificate pursuant
to Section 9.01(c).
"Notional Amount": The Class X Notional Amount.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President (however
denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Master Servicer or the Special Servicer, as the case may be, customarily
performing functions similar to those performed by any of the above designated
officers and also with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject, or an authorized officer of the Depositor, and
delivered to the Depositor, the Trustee or the Master Servicer, as the case may
be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Master
Servicer, as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Upper-Tier REMIC or Lower-Tier
REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any
income or property of either REMIC, (b) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor"), (c)
qualification of the Grantor Trust as a grantor trust or (d) a resignation of
the Master Servicer pursuant to Section 6.04, must be an opinion of counsel who
is Independent of the Depositor, the Special Servicer and the Master Servicer.
"Originator": Each of (i) Secore with respect to the Edens & Avant Pool
Loan, the Fashion Mall Loan, the 605 Third Avenue Loan, the Grand Kempinski
Loan, the Mark Centers Trust Pool Loan, the FGS Pool Loan, the Mansion Grove
Loan and the Westshore Mall Pool Loan, (ii) John Hancock with respect to the
North Shore Towers Loan, which amends and consolidates various loans originated
by Chase Manhattan Mortgage and Realty Trust and (iii) TIAA with respect to the
Arrowhead Towne Center Loan, the Westgate Mall Loan and the Yorktown Shopping
Center Loan.
"Ownership Interest": Any record or beneficial interest in a Class R or
Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the Master
Servicer, the Trustee, or the Fiscal Agent pursuant to Section 4.06. Each
reference to the payment or reimbursement of a P&I Advance shall be deemed to
include, whether or not specifically referred to but without duplication,
payment or reimbursement of interest thereon at the Advance Rate through the
date of payment or reimbursement.
"Pass-Through Rate": Each of the Class A-1 Pass-Through Rate, the Class A-2
Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class X Pass-Through
Rate, the Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D
Pass-Through Rate, the Class E Pass-Through Rate, the Class F Pass-Through Rate,
the Class G Pass-Through Rate and the Class H Pass-Through Rate. The Class Q,
Class R and Class LR Certificates do not have Pass-Through Rates.
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Certificate (except the Class Q, Class R and
Class LR Certificates), the Percentage Interest is equal to the initial
denomination of such Certificate divided by the initial Certificate Principal
Amount or Notional Amount, as applicable, of such Class of Certificates. With
respect to any Class Q, Class R or Class LR Certificate, the percentage interest
is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the date upon which such funds are required to be drawn,
regardless of whether issued by the Depositor, the Master Servicer, the Trustee
or any of their respective Affiliates and having at all times the required
ratings, if any, provided for in this definition, unless each Rating Agency
shall have confirmed in writing to the Master Servicer that a lower rating would
not, in and of itself, result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as to payment of
principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by
the full faith and credit of the United States of America
including, without limitation, obligations of: the U.S. Treasury
(all direct or fully guaranteed obligations), the Farmers Home
Administration (certificates of beneficial ownership), the
General Services Administration (participation certificates), the
U.S. Maritime Administration (guaranteed Title XI financing), the
Small Business Administration (guaranteed participation
certificates and guaranteed pool certificates), the U.S.
Department of Housing and Urban Development (local authority
bonds) and the Washington Metropolitan Area Transit Authority
(guaranteed transit bonds); provided, however, that the
investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations),
the Farm Credit System (consolidated systemwide bonds and notes),
the Federal Home Loan Banks (consolidated debt obligations), the
Federal National Mortgage Association (debt obligations), the
Student Loan Marketing Association (debt obligations), the
Financing Corp. (debt obligations), and the Resolution Funding
Corp. (debt obligations); provided, however, that the investments
described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change, (B) if such investments have a variable rate of interest,
such interest rate must be tied to a single interest rate index
plus a fixed spread (if any) and must move proportionately with
that index, and (C) such investments must not be subject to
liquidation prior to their maturity;
(iv) federal funds, unsecured certificates of deposit, time or similar
deposits, bankers' acceptances and repurchase agreements, with
maturities of not more than 365 days, of any bank, the short term
obligations of which are rated in the highest short term rating
category by each Rating Agency (or, if permitted by the related
Mortgage Loan, if not rated by Moody's, S&P or Fitch, otherwise
acceptable to Moody's, S&P or Fitch, as applicable, as confirmed
in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates); provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change, (B) if such investments have a
variable rate of interest, such interest rate must be tied to a
single interest rate index plus a fixed spread (if any) and must
move proportionately with that index, and (C) such investments
must not be subject to liquidation prior to their maturity;
(v) fully Federal Deposit Insurance Corporation-insured demand and
time deposits in, or certificates of deposit of, or bankers'
acceptances issued by, any bank or trust company, savings and
loan association or savings bank, the short term obligations of
which are rated in the highest short term rating category by each
Rating Agency (or, if permitted by the related Mortgage Loan, if
not rated by Moody's, S&P or Fitch, otherwise acceptable to
Moody's, S&P or Fitch, as applicable, as confirmed in writing
that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates); provided, however, that
the investments described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change, (B) if such investments have a
variable rate of interest, such interest rate must be tied to a
single interest rate index plus a fixed spread (if any) and must
move proportionately with that index, and (C) such investments
must not be subject to liquidation prior to their maturity;
(vi) debt obligations with maturities of not more than 365 days rated
by each Rating Agency (or, if permitted by the related Mortgage
Loan, if not rated by Moody's, S&P or Fitch, otherwise acceptable
to Moody's, S&P or Fitch, as applicable, as confirmed in writing
that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates) in its highest long-term
unsecured rating category; provided, however, that the
investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or
on a specified date not more than one year after the date of
issuance thereof) with maturities of not more than 365 days and
that is rated by each Rating Agency (or, if permitted by the
related Mortgage Loan, if not rated by Moody's, S&P or Fitch,
otherwise acceptable to Moody's, S&P or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates) in its highest
short-term unsecured debt rating; provided, however, that the
investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(viii) the Federated Prime Obligation Money Market Fund (the "Fund") so
long as the Fund is rated by each Rating Agency in its highest
ratings category applicable to money market funds (or, if not
rated by Moody's, S&P or Fitch, otherwise acceptable to Moody's,
S&P or Fitch, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned
to the Certificates); and
(ix) if permitted by the related Mortgage Loan or agreed to by the
related Borrower and, if required, any bank maintaining the
account in which such obligation, security or investment is held,
any other demand, money market or time deposit, demand obligation
or any other obligation, security or investment, provided that
each Rating Agency has confirmed in writing to the Master
Servicer, Special Servicer or Trustee, as applicable, that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned
to the Certificates;
provided, however, that, in each case, if the investment is rated by S&P, it
shall not have an "r" highlighter affixed to its ratings from S&P; provided,
further, however, that, in the judgment of the Master Servicer, such instrument
continues to qualify as a "cash flow investment" pursuant to Code Section
860G(a)(6) earning a passive return in the nature of interest and that no
instrument or security shall be a Permitted Investment if (i) such instrument or
security evidences a right to receive only interest payments or (ii) the right
to receive principal and interest payments derived from the underlying
investment provides a yield to maturity in excess of 120% of the yield to
maturity at par of such underlying investment.
Notwithstanding the foregoing, to the extent that the Loan Documents with
respect to a particular Mortgage Loan require the funds in the related Borrower
Accounts to be invested in investments other than those itemized in clause (i)
through (ix) above, the Master Servicer shall invest the funds in such Borrower
Accounts in accordance with the terms of the related Loan Documents.
"Permitted Transferee": With respect to a Class R or Class LR Certificate,
any Person that is a Qualified Institutional Buyer other than (a) a Disqualified
Organization, (b) any other Person so designated by the Certificate Registrar
based upon an Opinion of Counsel (provided at the expense of such Person or the
Person requesting the Transfer) to the effect that the Transfer of an Ownership
Interest in any Class R or Class LR Certificate to such Person may cause the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that the Certificates are outstanding, (c) a Person that is a Disqualified
Non-U.S. Person and (d) a Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(k).
"Prepayment Assumption": The assumption that (i) the 605 Third Avenue Loan,
the FGS Pool Loan, the Mansion Grove Loan, the Fashion Mall Loan, the Grand
Kempinski Loan, the Mark Centers Pool Loan and the Westshore Mall Loan prepay on
their respective Effective Maturity Dates and (ii) the North Shore Towers Loan,
the Edens & Avant Pool Loan, the Arrowhead Towne Center Loan, the Westgate Mall
Loan and the Yorktown Shopping Center Loan prepay on their respective Maturity
Dates.
"Prepayment Interest Shortfall": With respect to any Distribution Date and
any Mortgage Loan, an amount equal to the amount of any shortfall in collections
of interest, adjusted to the applicable Net Mortgage Rate, resulting from a
Principal Prepayment on such Mortgage Loan during the related Collection Period
and prior to the Due Date in such Collection Period.
"Prepayment Premium": Payments received on a Mortgage Loan as the result of
the receipt of certain Unscheduled Payments (other than an amount paid in
connection with the release of the related Mortgaged Property through
defeasance), which are intended to compensate the holder of the related Note for
prepayment.
"Principal Balance Certificates": The Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates
collectively.
"Principal Distribution Amount": For any Distribution Date, the sum,
without duplication, of:
(i) the principal component of all scheduled Monthly Payments (other
than Balloon Payments) which become due on the Due Date
immediately preceding such Distribution Date (if received, or
advanced by the Master Servicer, the Special Servicer, Trustee or
Fiscal Agent, in respect of such Distribution Date) with respect
to the Mortgage Loans;
(ii) the principal component of all Extended Monthly Payments due on
the related Due Date (if received, or advanced by the Master
Servicer, the Special Servicer, Trustee or Fiscal Agent, in
respect of such Distribution Date) with respect to the Mortgage
Loans;
(iii) the principal component of any payments (including any Balloon
Payment) on any Mortgage Loan received on or after the Maturity
Date thereof in the related Collection Period; and
(iv) the portion of Unscheduled Payments allocable to principal of any
Mortgage Loan received or applied during the related Collection
Period, net of the principal portion of any unreimbursed P&I
Advances related to such Mortgage Loan.
The principal component of the amounts set forth above shall be determined
in accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by a Borrower on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment other than any amount paid in connection with the
release of the related Mortgaged Property through defeasance.
"Private Global Certificate": As defined in Section 5.01 hereof.
"Property Advance": As to any Mortgage Loan, any advance made by the Master
Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or taxes and assessments or insurance
premiums, pursuant to Section 3.04 or Section 3.22, as applicable. Each
reference to the payment or reimbursement of a Property Advance shall be deemed
to include, whether or not specifically referred to, payment or reimbursement of
interest thereon at the Advance Rate from and including the date of the making
of such Advance through and including the date of payment or reimbursement.
"Property Protection Expenses": Any costs and expenses incurred by the
Master Servicer or the Special Servicer pursuant to Sections 3.04, 3.08,
3.10(f), 3.10(g), 3.10(i) and 3.17(b) or indicated herein as being a cost or
expense of the Trust Fund, to be advanced by the Master Servicer or the Special
Servicer, as applicable.
"Public Global Certificate": Each of the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E and Class F Certificates so long as any such
Class of Certificates is registered in the name of a nominee of the Depository.
"Qualified Institutional Buyer" or "QIB": A qualified institutional buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Sections 3.08 and 5.08, in the case of (i)
all policies not referred to in clause (ii) below, an insurance company or
security or bonding company qualified to write the related insurance policy in
the relevant jurisdiction and whose claims paying ability is rated (a) in one of
the two highest applicable rating categories by S&P and at least one other
nationally recognized statistical rating organization, and (ii) in the case of
the fidelity bond and the errors and omissions insurance required to be
maintained pursuant to Section 3.08(c), shall have a claim paying ability rated
by each Rating Agency (and if such company is not rated by Fitch, is rated A:IX
by Best's Rating Guide) no lower than two ratings categories (without regard to
pluses or minuses) lower than the highest rating of any outstanding Class of
Certificates from time to time, but in no event lower than "BBB" by S&P and
Fitch and "Baa3" by Moody's, unless in the case where such insurance is not
rated by one or more Rating Agencies or where such insurance has a claims paying
ability rated by one or more Rating Agencies in a rating category lower than
required herein, each such Rating Agency has confirmed in writing that obtaining
the related insurance from an insurance company that is not rated by such Rating
Agency (subject to the foregoing exceptions) or that has a lower claims paying
ability than such requirements shall not result, in and of itself, in a
downgrade, qualification or withdrawal of the then current ratings by such
Rating Agency to any Class of Certificates, provided that Gulf Underwriter's
Insurance Company and Lexington Insurance Company, shall be Qualified Insurers
for so long as there is no downgrade, qualification or withdrawal of the rating
of such institutions from their ratings as of the Closing Date.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage" within
the meaning of Code Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any substantially similar successor
provision).
"Rated Final Distribution Date": The Distribution Date occurring in
October, 2030.
"Rating Agency": Any of S&P, Moody's or Fitch. References herein to the
highest long-term unsecured debt rating category of S&P and Fitch shall mean
"AAA" and of Moody's shall mean "Aaa" and in the case of any other rating agency
shall mean such highest rating category or better without regard to any plus or
minus or numerical qualification.
"Real Property": Land or improvements thereon such as buildings or other
inherently permanent structures thereon (including items that are structural
components of the buildings or structures), in each such case as such terms are
used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date, the amount, if any,
by which the aggregate Certificate Principal Amount of the Certificates after
giving effect to distributions on such Distribution Date exceeds the aggregate
Stated Principal Balance of the Mortgage Loans after giving effect to any
payments of principal received or advanced with respect to the Due Date
occurring immediately prior to such Distribution Date.
"Reassignment of Assignment of Leases, Rents and Profits": As defined in
Section 2.01(viii).
"Record Date": With respect to each Distribution Date and each Class of
Certificates, the close of business on the last day of the month immediately
preceding the month in which such Distribution Date occurs, or if such day is
not a Business Day, the immediately preceding Business Day.
"Regular Certificates": The Class A-1, Class A-2, Class A-3, Class X, Class
B, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
"Regulation D": Regulation D under the Act.
"Related Certificate" and "Related Lower-Tier Regular Interest": For any
Class of Lower-Tier Regular Interest, the related Class of Certificates set
forth below, and for any Class of Certificates (other than the Class X, Class Q,
Class R and Class LR Certificates), the related Class of Lower-Tier Regular
Interest set forth below:
Related Lower-Tier
Related Certificate Regular Interest
------------------- ----------------
Class A-1......................... Class LA-1
Class A-2......................... Class LA-2
Class A-3......................... Class LA-3
Class B........................... Class LB
Class C........................... Class LC
Class D........................... Class LD
Class E........................... Class LE
Class F........................... Class LF
Class G........................... Class LG
Class H........................... Class LH
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations (including any applicable proposed regulations) and rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect
to such REO Property, if the determination of such amount depends
in whole or in part on the income or profits derived by any
Person from such property (unless such amount is a fixed
percentage or percentages of receipts or sales and otherwise
constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including
by attribution) a ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B) and (d)(5) of
the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such
REO Property;
(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as
such REO Property within the meaning of Treasury Regulations
Section 1.856-4(b)(1) (whether or not such charges are separately
stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of
such REO Property and, for any taxable year of the Trust Fund,
such rent is no greater than 15 percent of the total rent
received or accrued under, or in connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been acquired by
the Master Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
"Repurchase Price": With respect to a Mortgage Loan, the sum of:
(i) the outstanding principal balance of such Mortgage Loan as of the
date of purchase;
(ii) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate (in the case of the North Shore Towers
Loan, net of the Hancock Retained Interest), in effect from time
to time, to but not including the Due Date in the Collection
Period of purchase;
(iii) all related unreimbursed Property Advances plus accrued and
unpaid interest on all related Advances at the Advance Rate (to
the extent provided hereunder), and accrued and unpaid Special
Servicing Fees allocable to such Mortgage Loan; and
(iv) all reasonable out-of-pocket expenses reasonably incurred by the
Master Servicer, the Special Servicer, the Depositor and the
Trustee in respect of the breach giving rise to the repurchase
obligation, including any expenses arising out of the enforcement
of the repurchase obligation, which are reimbursable to such
parties pursuant to the terms herein.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve accounts, if
any, established pursuant to the Mortgage or the Loan Agreement and any Escrow
Account. Any Reserve Account shall be beneficially owned for federal income tax
purposes by the Person who is entitled to receive the reinvestment income or
gain thereon in accordance with the terms and provisions of the related Mortgage
Loan and Section 3.07, which Person shall be taxed on all reinvestment income or
gain thereon. To the extent not inconsistent with the related Mortgage Loan,
each such Reserve Account shall be an Eligible Account.
"Residual Certificates": The Class R and Class LR Certificates.
"Responsible Officer": Any officer of the Asset-Backed Securities Trust
Services Group of the Trustee or the Fiscal Agent (and, in the event that the
Trustee is not the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust
Office with direct responsibility for the administration of this Agreement and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, and, in the case of any certification required to be signed
by a Responsible Officer, such an officer whose name and specimen signature
appears on a list of corporate trust officers furnished to the Master Servicer
by the Trustee and the Fiscal Agent, as such list may from time to time be
amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Revised Mortgage Rate": With respect to any Mortgage Loan (other than the
North Shore Towers Loan, the Edens & Avant Pool Loan, the Arrowhead Towne Center
Loan, the Westgate Mall Loan and the Yorktown Shopping Center Loan), the revised
Mortgage Rate on each such Mortgage Loan (in the absence of a default), as set
forth on the Mortgage Loan Schedule.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificates": As defined in Section 5.01.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw Hill
Companies, Inc.
"Scheduled Final Distribution Date": The Distribution Date occurring in
October, 2027.
"Secore": Secore Financial Corporation, a Pennsylvania corporation.
"Securities Legend": With respect to each Private Global Certificate,
Residual Certificate or any Individual Certificate, the legend set forth in, and
substantially in the form of, Exhibit F hereto.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount equal to the product of (i) the related Servicing
Fee Rate (converted to a monthly rate) and (ii) the Stated Principal Balance of
such Mortgage Loan; provided, that such amounts shall be computed on the basis
of the same principal amount and, in connection with any partial interest
payment, for the same period respecting which any related interest payment due
or deemed due on the related Mortgage Loan is computed. Such amount includes the
compensation payable to the Master Servicer and the Trustee Fee. With respect to
any Distribution Date, to the extent that there are Prepayment Interest
Shortfalls with respect to Principal Prepayments received during the related
Collection Period, the Servicing Fee to which the Master Servicer would
otherwise be entitled to with respect to all the Mortgage Loans for such
Distribution Date (but not the fees payable to the Special Servicer, the Trustee
or the Mansion Grove Subservicer) shall be reduced up to the amount sufficient
to fully offset such Prepayment Interest Shortfalls.
"Servicing Fee Rate": A rate equal to: (a) with respect to the North Shore
Towers Loan, 0.0205% per annum (or 0.0355% per annum if, immediately following a
corresponding reduction in the Hancock Retained Interest, the Depositor notifies
the Master Servicer of such change in rate); (b) with respect to the Mansion
Grove Loan, 0.0423% per annum; and (c) with respect to all other Mortgage Loans,
0.0355% per annum.
"Servicing Officer": Any officer or employee of the Master Servicer or the
Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or this Agreement and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's or employee's knowledge of and familiarity
with the particular subject, and, in the case of any certification required to
be signed by a Servicing Officer, such an officer or employee whose name and
specimen signature appears on a list of servicing officers furnished to the
Trustee by the Master Servicer or the Special Servicer, as applicable, as such
list may from time to time be amended.
"Servicing Standard": With respect to the Master Servicer or Special
Servicer shall mean the servicing of the Mortgage Loans by the Master Servicer
or Special Servicer in the best interests of and for the benefit of all of the
Certificateholders (as determined by the Master Servicer or Special Servicer as
the case may be, in the exercise of its good faith and reasonable judgment) and
in accordance with applicable law, the specific terms of the respective Mortgage
Loans and this Agreement and to the extent not inconsistent with the foregoing,
in the same manner in which, and with the same care, skill and diligence as is
normal and usual in its general mortgage servicing and REO property management
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to mortgage loans and REO properties that are comparable to
those for which it is responsible hereunder, and in each event with a view to
the timely collection of all scheduled payments of principal and interest under
the Mortgage Loans or, if a Mortgage Loan comes into and continues in default
and if, in the good faith and reasonable judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collection that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate), but in any
case without regard to:
(i) any known relationship that the Master Servicer, the Special
Servicer or any Affiliate of the Master Servicer or the Special
Servicer may have with any Borrower or any other parties to this
Agreement;
(ii) the ownership of any Certificate by the Master Servicer, the
Special Servicer or any Affiliate of the Master Servicer or
Special Servicer, as applicable;
(iii) the Master Servicer's or Special Servicer's obligation 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 reimbursement of costs, or the sufficiency of any
compensation for its services hereunder or with respect to any
particular transaction; or
(v) the ownership, servicing or management for others or itself, by
the Master Servicer or the Special Servicer of any other mortgage
loans or properties.
"605 Third Avenue Loan": The Mortgage Loan identified as No. 1 on the
Mortgage Loan Schedule.
"Special Event Report": As defined in Section 3.20.
"Special Servicer": GMAC Commercial Mortgage Corporation, or any successor
Special Servicer appointed as provided herein.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicer's Appraisal Estimate": As defined in the definition of
Appraisal Reduction Amount.
"Special Servicing Compensation": With respect to any Mortgage Loan, any of
the Special Servicing Fee, the Special Servicing Rehabilitation Fee, and the
Liquidation Fee which shall be due to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and any Distribution Date, an amount per Interest Accrual Period equal to
the product of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the
Stated Principal Balance of such Specially Serviced Mortgage Loan; provided,
that such amounts shall be computed on the basis of the same principal amount,
in connection with any partial interest payment, and for the same period
respecting which any related interest payment due or deemed due on the related
Mortgage Loan is computed; provided further, that such fee for the first
Interest Accrual Period shall be appropriately prorated to reflect the fact that
the first Interest Accrual Period is less than a full month.
"Special Servicing Fee Rate": A rate equal to 0.35% per annum.
"Special Servicing Rehabilitation Fee": As to any Mortgage Loan that has
been a Specially Serviced Mortgage Loan, on the occasion that such Mortgage Loan
has not been a Specially Serviced Mortgage Loan for three consecutive Collection
Periods (or 12 consecutive Collection Periods in the case of any Mortgage Loan
which became a Specially Serviced Mortgage Loan as a result of circumstances
described in clauses (iii) through (vii) of the definition thereof), an amount
equal to 0.75% of the highest Stated Principal Balance of such Mortgage Loan
while it was a Specially Serviced Mortgage Loan; provided, however, that such
Special Servicing Rehabilitation Fee shall be due only once for each Mortgage
Loan during the term of this Agreement.
"Specially Serviced Mortgage Loan": Subject to Section 3.24, any Mortgage
Loan with respect to which:
(i) the related Borrower has not made two consecutive Monthly
Payments (and has not cured at least one such Delinquency by the
next Due Date under such Mortgage Loan);
(ii) the Master Servicer, the Trustee or the Fiscal Agent,
individually or collectively, have made four consecutive P&I
Advances (regardless of whether such P&I Advances have been
reimbursed), other than any P&I Advance with respect to which the
related Monthly Payment was received during the related grace
period specified in the applicable Loan Documents;
(iii) the related Borrower has expressed to the Master Servicer an
inability to pay or a hardship in paying the Mortgage Loan in
accordance with its terms;
(iv) the Master Servicer has received notice that the Borrower has
become the subject of any bankruptcy, insolvency or similar
proceeding, admitted in writing the inability to pay its debts as
they come due or made an assignment for the benefit of creditors;
(v) the Master Servicer has received notice of a foreclosure or
threatened foreclosure of any lien on the Mortgaged Property
securing the Mortgage Loan;
(vi) a default (A) of which the Master Servicer has notice (other than
a failure by the Borrower to pay principal or interest) and (B)
which materially and adversely affects the interests of the
Certificateholders has occurred, and remained unremedied for the
applicable grace period specified in the Mortgage Loan (or, if no
grace period is specified, 60 days); provided that a default
requiring a Property Advance shall be deemed to materially and
adversely affect the interests of the Certificateholders; or
(vii) in the opinion of the Master Servicer (consistent with the
Servicing Standard) a default under a Mortgage Loan is imminent
and such Mortgage Loan deserves the attention of the Special
Servicer;
provided, however, that a Mortgage Loan will cease to be a
Specially Serviced Mortgage Loan:
(a) with respect to the circumstances described in clause (i) and (ii)
above, when the Borrower thereunder has brought the Mortgage Loan current and
thereafter made three consecutive full and timely Monthly Payments including
pursuant to any workout of the Mortgage Loan;
(b) with respect to the circumstances described in clause (iii), (iv), (v)
and (vii) above, when such circumstances cease to exist in the good faith
judgment of the Master Servicer; or
(c) with respect to the circumstances described in clause (vi) above, when
such default is cured;
provided, in any case, that at that time no circumstance identified in clauses
(i) through (vii) above exists that would cause the Mortgage Loan to continue to
be characterized as a Specially Serviced Mortgage Loan.
"Startup Day": The day designated as such pursuant to Section 2.06(a)
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan at any date
of determination, an amount equal to (a) the principal balance as of the Cut-Off
Date of such Mortgage Loan, minus (b) the sum of (i) the principal portion of
each Monthly Payment or, if applicable, Extended Monthly Payment due on such
Mortgage Loan after the Cut-Off Date and prior to such date of determination, if
received from the Borrower or advanced by the Master Servicer, Trustee, or
Fiscal Agent, (ii) all Balloon Payments, voluntary and involuntary principal
prepayments and other unscheduled collections of principal received with respect
to such Mortgage Loan, to the extent distributed to Certificateholders or
applied to other payments required under this Agreement before such date of
determination and (iii) any adjustment thereto as a result of a reduction of
principal by a bankruptcy court or as a result of a modification reducing the
principal amount due on such Mortgage Loan. The Stated Principal Balance of a
Mortgage Loan with respect to which title to the related Mortgaged Property has
been acquired by the Trust Fund is equal to the principal balance thereof
outstanding on the date on which such title is acquired less any Net REO
Proceeds allocated to principal on such Mortgage Loan. The Stated Principal
Balance of a Specially Serviced Mortgage Loan with respect to which the Special
Servicer has made a Final Recovery Determination is zero.
"Subordinate Certificates": Any of the Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates.
"Summary Report": A quarterly report or annual summary of quarterly reports
setting forth the information with respect to the Borrowers and Mortgaged
Properties, substantially in the form of Exhibit H hereto.
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
the Upper-Tier REMIC or Lower-Tier REMIC under the REMIC Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the IRS or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"TIAA": Teacher's Insurance and Annuity Association of America, a New York
corporation.
"Transfer": Any direct or indirect transfer or other form of assignment of
any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Treasury Rate": The yield calculated by the linear interpolation of the
yields, as reported in Federal Reserve Statistical Release H.15--Selected
Interest Rates under the heading "U.S. government securities/Treasury constant
maturities" for the week ending prior to the date of the relevant principal
prepayment, of U.S. Treasury constant maturities with a maturity date (one
longer and one shorter) most nearly approximating the maturity of the Mortgage
Loan prepaid. If Release H.15 is no longer published, the Trustee shall select a
comparable publication to determine the Treasury Rate.
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto;
(ii) all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-Off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Master Servicer's and
the Trustee's rights under the insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to this Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans; (viii) all assets deposited in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts, Reserve Accounts (to the extent such
assets in such accounts are not assets of the respective Borrowers), the
Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Deferred Interest Distribution Account, the Class Q
Distribution Account and any REO Account including reinvestment income thereon;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Loan Sale Agreement; and (xi)
the proceeds of any of the foregoing (other than any interest earned on deposits
in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower).
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle National Bank, a national banking association, in its
capacity as trustee, or its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any Distribution
Date, an amount per Interest Accrual Period equal to the product of (i)
one-twelfth of the Trustee Fee Rate multiplied by (ii) the Stated Principal
Balance of such Mortgage Loan; provided, that such amounts shall be computed on
the basis of the same principal amount and for the same period respecting which
any related interest payment due or deemed due on the related Mortgage Loan is
computed.
"Trustee Fee Rate": A rate equal to 0.0055% per annum.
"Underwriter": Morgan Stanley & Co. Incorporated
"Unscheduled Payments": With respect to a Mortgage Loan and a Collection
Period, all Net Liquidation Proceeds, Net Insurance Proceeds and net
condemnation proceeds payable under such Mortgage Loan, any Principal
Prepayment, any delinquent Monthly Payment received from the related Borrower
after the Master Servicer Remittance Date for the Due Date related to such
Monthly Payment, any Repurchase Price received in connection with a Mortgage
Loan repurchased from the Trust Fund pursuant to Sections 2.03, 3.18 or 9.01,
and any other payments under or with respect to such Mortgage Loan not scheduled
to be made, but excluding Prepayment Premiums, Deferred Interest, Default
Interest, and any amount paid in connection with the release of the related
Mortgaged Properties through defeasance.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO Property,
as the case may be, conducted subsequent to any appraisal performed on or prior
to the Cut-Off Date and in accordance with MAI standards, the costs of which
shall be paid as a Property Advance by the Master Servicer. Updated Appraisals
shall be conducted by an Independent MAI appraiser selected by the Special
Servicer.
"Upper-Tier Distribution Account": The trust account or accounts created
and maintained as a separate trust account or accounts by the Trustee pursuant
to Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1, Upper-Tier Distribution Account" and
which must be an Eligible Account.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A person that 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, an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust, and one or more such U.S.
Persons have the authority to control all substantial decisions of such trust.
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate or Class of Certificates. At
all times during the term of this Agreement, the percentage of the Voting Rights
assigned to each Class shall be (a) 0%, in the case of the Class Q, Class R and
Class LR Certificates, (b) 4%, in the case of the Class X Certificates (the
"Fixed Voting Rights Percentage"); (c) in the case of any of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G and
Class H Certificates, a percentage equal to the product of (i) 100% minus the
Fixed Voting Rights Percentage multiplied by (ii) a fraction, the numerator of
which is equal to the aggregate outstanding Certificate Principal Amount of any
such Class (which will be reduced for this purpose by the amount of any
Appraisal Reduction Amounts notionally allocated to such Class, if applicable)
and the denominator of which is equal to the aggregate outstanding Certificate
Principal Amounts of all Classes of Certificates. The Voting Rights of any Class
of Certificates shall be allocated among Holders of Certificates of such Class
in proportion to their respective Percentage Interests. The aggregate Voting
Rights of Holders of more than one Class of Certificates shall be equal to the
sum of the products of each such Holder's Voting Rights and the percentage of
Voting Rights allocated to the related Class of Certificates. Any
Certificateholder may transfer its Voting Rights without transferring its
ownership interest in the related Certificates provided that such
Certificateholder provides notice of such transfer to the Trustee prior to the
effectiveness of such transfer.
"WAC Rate": With respect to any Distribution Date, the weighted average of
the Net Mortgage Rates in effect for the Mortgage Loans as of their Due Dates in
the month preceding the month in which such Distribution Date occurs weighted on
the basis of their respective Stated Principal Balances on such Due Date.
"Westgate Mall Loan": The Mortgage Loan identified as No. 11 on the
Mortgage Loan Schedule.
"Westshore Mall Loan": The Mortgage Loan identified as No. 12 on the
Mortgage Loan Schedule.
"Yorktown Shopping Center Loan": The Mortgage Loan identified as No. 7 on
the Mortgage Loan Schedule.
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans shall
be made in accordance with the terms of the related Note and Mortgage or, if
such documents do not specify the basis upon which interest accrues thereon, on
the basis of 30 days in each month and a 360-day year.
(b) The portion of any Insurance Proceeds and Net Liquidation Proceeds in
respect of a Mortgage Loan allocable to principal shall equal the total amount
of such proceeds minus (i) any portion thereof payable to the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent pursuant to the provisions
of this Agreement and (ii) a portion thereof equal to the interest component of
the Monthly Payment or Extended Monthly Payment, as the case may be, at the
related Net Mortgage Rate from the date as to which interest was last paid by
the Borrower up to but not including the Due Date in the Collection Period in
which such proceeds are received.
(c) For purposes of distribution of Prepayment Premiums pursuant to Section
4.01(c) on any Distribution Date, the Class of Certificates as to which any
prepayment shall be deemed to be distributed shall be determined on the
assumption that the portion of the Principal Distribution Amount paid to the
Certificates on such Distribution Date in respect of principal shall consist
first of scheduled payments included in the definition of Principal Distribution
Amount and second of prepayments included in such definition.
(d) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Master Servicer or the Trustee; provided,
however, that for purposes of calculating distributions on the Certificates,
Principal Prepayments with respect to any Mortgage Loan are deemed to be
received on the date they are applied in accordance with Section 3.01(b) to
reduce the outstanding principal balance of such Mortgage Loan on which interest
accrues.
(e) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred shall be applied to Default Interest and other amounts due
on such Mortgage Loan prior to the application to late fees.
SECTION 1.03. Certain Constructions.
For purposes of this Agreement, references to the most or next most
subordinate Class of Certificates outstanding at any time shall mean the most or
next most subordinate Class of Certificates then outstanding as among the Class
A-1, Class A-2, Class A-3, Class X, Class B, Class C, Class D, Class E, Class F,
Class G and Class H Certificates; provided, however, that for purposes of
determining the most subordinate Class of Certificates, in the event that the
Class A Certificates are the only Class of Certificates outstanding (other than
the Class X, Class Q, Class LR or Class R Certificates), the Class A
Certificates and the Class X Certificates together will be treated as the most
subordinate Class of Certificates. For purposes of this Agreement, each Class of
Certificates other than the Class Q, Class LR and Class R Certificates shall be
deemed to be outstanding only to the extent its respective Certificate Principal
Amount or Notional Amount has not been reduced to zero; provided, however, that
notwithstanding the foregoing, solely for the purpose of distributing Deferred
Interest in accordance with the terms and priorities set forth in Section
4.01(e), any Class of Certificates entitled to distributions of Deferred
Interest shall continue to be deemed to be outstanding for so long as the
Mortgage Loans with respect to which such Class is entitled to distributions of
Deferred Interest received therefrom (as set forth in Section 4.01(e)) remain
outstanding. For purposes of this Agreement, the Class Q Certificates shall be
deemed to be outstanding so long as there are any Certificates outstanding and
the Class R and Class LR Certificates shall be deemed to be outstanding so long
as the Trust REMICs have not been terminated pursuant to Section 9.01.
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment
of Loan Sale Agreement.
The Depositor, concurrently with the execution and delivery hereof, does
hereby sell, transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent herein provided) all the right, title and
interest of the Depositor in and to the Mortgage Loans, including all rights to
payment in respect thereof, except as set forth below, and any security interest
thereunder (whether in real or personal property and whether tangible or
intangible) in favor of the Depositor, and all Reserve Accounts, Lock-Box
Accounts, Cash Collateral Accounts and all other assets included or to be
included in the Trust Fund for the benefit of the Certificateholders. Such
transfer and assignment includes all interest and principal due on or with
respect to the Mortgage Loans other than interest and principal due on or prior
to the Cut-Off Date. In connection with such transfer and assignment, the
Depositor shall make a cash deposit to the Collection Account in an amount equal
to the Cash Deposit. The Depositor, concurrently with execution and delivery
hereof, does also hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse (except to the extent provided herein) all the right,
title and interest of the Depositor in, to and under the Loan Sale Agreement.
The Depositor shall cause the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts to be transferred to and held in the name of the Master
Servicer on behalf of the Trustee as successor to the applicable Originator.
In connection with such transfer and assignment, the Depositor shall, on or
prior to the Closing Date, deliver to, and deposit with, the Custodian (on
behalf of the Trustee), with copies to the Master Servicer and Special Servicer,
the following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the original of the Note, endorsed (such endorsement may take the
form of a note allonge) without recourse to the order of the
Trustee in the following form: "Pay to the order of LaSalle
National Bank, as Trustee for the Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1, without recourse"
which Note and all endorsements thereon or allonges thereto
shall, unless the Mortgage Loan was originated by the related
Originator, show a complete chain of endorsement from the related
Originator to the Trustee; provided, however, that the
requirements of this clause (i) shall be satisfied (x) in the
case of the 605 Third Avenue Loan by the delivery or deposit of
(A) the original of that certain Agreement of Assumption,
Modification and Extension of Note (the "Third Avenue
Modification Agreement") dated September 10, 1997 between the
related Borrower and Secore, or a counterpart thereof, together
with an assignment thereof to the Trustee, and (B) the original
of each note described in Exhibit A of the Third Avenue
Modification Agreement, each endorsed (which endorsement may be
allonge) to show a complete chain of endorsement from the
original maker to the Trustee, and (y) in the case of the
Northshore Towers Loan by the delivery or deposit of (1) the
original of that certain Note Consolidation and Amendment
Agreement dated November 21, 1994 between the related Borrower
and John Hancock, or a counterpart thereof, together with an
assignment thereof to the Trustee, (2) the original of that
certain Interim Note in the principal amount of $1,700,000 dated
November 21, 1994, made by the related Borrower, as maker,
endorsed (which endorsement may be by allonge) to show a complete
chain of endorsement from said maker to the Trustee, (3) the
original of that certain Lost Note Certificate and Indemnity of
John Hancock for the benefit of MSMC, as assigned pursuant to an
Omnibus Assignment from MSMC to Depositor, as further assigned by
an Omnibus Assignment from Depositor to Trustee, (4) copies of
the three notes referred to in the foregoing Lost Note
Certificate and Indemnity, and (5) that certain allonge executed
by John Hancock with respect to the notes referred to in the
foregoing clauses (2) and (3), as consolidated;
(ii) the original recorded Mortgage or counterpart thereof showing the
related Originator as mortgagee or, if any such original Mortgage
has not been returned from the applicable public recording
office, a copy thereof certified to be a true and complete copy
of the original thereof submitted for recording;
(iii) an executed Assignment of Mortgage in suitable form for
recordation in the jurisdiction in which the Mortgaged Property
is located to "LaSalle National Bank, as Trustee for the
Commercial Mortgage Pass-Through Certificates, Series 1997-XL1,
without recourse";
(iv) if the related security agreement is separate from the Mortgage,
the original executed version or counterpart thereof of such
security agreement and the assignment thereof to the Trustee;
(v) a copy of the UCC-1 financing statement, together with an
original executed UCC-2 or UCC-3 financing statement, in a form
suitable for filing, disclosing the assignment to the Trustee of
the security interest in the personal property (if any)
constituting security for repayment of the Mortgage Loan;
(vi) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(vii) the original lender's title insurance policy (or the original pro
forma title insurance policy), together with any endorsements
thereto;
(viii) if any related Assignment of Leases, Rents and Profits is
separate from the Mortgage, the original executed version or
counterpart thereof, together with an executed reassignment of
such instrument to the Trustee (a "Reassignment of Assignment of
Leases, Rents and Profits") in suitable form for recordation in
the jurisdiction in which the Mortgaged Property is located
(which reassignment, however, may be included in the Assignment
of Mortgage and need not be a separate instrument);
(ix) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage
Loan, if any, and copies of the original environmental
indemnities, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Properties and any consents of manager;
(xi) a copy of the related ground lease, if any, as amended, for the
Mortgaged Properties, if any;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of
contracts and the assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Agreement is
separate from the Mortgage or Loan Agreement, a copy thereof;
with respect to the Reserve Accounts, Cash Collateral Accounts
and Lock-Box Accounts, if any, a copy of the UCC-1 financing
statements, if any, submitted for filing with respect to the
related Originator's security interest in the Reserve Accounts,
Cash Collateral Accounts and Lock-Box Accounts and all funds
contained therein (and UCC-2 or UCC-3 financing statements
assigning such security interest to the Trustee on behalf of the
Certificateholders);
(xiv) the originals of any letters of credit, issued in the name of the
Trustee or endorsed or accompanied by an executed transfer
certificate showing assignment to the Trustee;
(xv) any and all side amendments, modifications and supplements to,
and waivers related to, any of the foregoing; and
(xvi) any other written agreements related to the Mortgage Loan.
On or promptly following the Closing Date, the Trustee shall, to the extent
possession thereof has been delivered to it by the Depositor (or its designee),
at the expense of the Depositor, (1) record (a) each Assignment of Mortgage
referred to in Section 2.01(iii) which has not yet been submitted for recording
and (b) each Reassignment of Assignment of Leases, Rents and Profits referred to
in Section 2.01(viii) (if not otherwise included in the related Assignment of
Mortgage) which has not yet been submitted for recordation; and (2) file each
UCC-2 or UCC-3 financing statement referred to in Section 2.01(v) or (xiii)
which has not yet been submitted for filing. The Trustee shall upon delivery
promptly submit (and in no event later than 30 Business Days following the
receipt of the related documents in the case of clause 1(a) above and 60 days
following the Closing Date in the case of clauses 1(b) and 2 above) for
recording or filing, as the case may be, in the appropriate public recording
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the Depositor, or the Trustee,
at the request and expense of the Depositor, shall use its best efforts to
promptly prepare a substitute document for signature by the Depositor, and
thereafter the Trustee shall cause each such document to be duly recorded. The
Trustee shall, promptly upon receipt of the original recorded copy (and in no
event later than five Business Days following such receipt) deliver such
original to the Custodian. Notwithstanding anything to the contrary contained in
this Section 2.01, in those instances where the public recording office retains
the original Mortgage, Assignment of Mortgage or Reassignment of Assignment of
Leases, Rents and Profits, if applicable, after any has been recorded, the
obligations hereunder of the Depositor shall be deemed to have been satisfied
upon delivery to the Custodian of a copy of such Mortgage, Assignment of
Mortgage or Reassignment of Assignment of Leases, Rents and Profits, if
applicable, certified by the public recording office to be a true and complete
copy of the recorded original thereof. If a pro forma title insurance policy has
been delivered to the Custodian in lieu of an original title insurance policy,
the Depositor will promptly deliver to the Custodian the related original title
insurance policy upon receipt thereof. The Depositor shall promptly cause the
UCC-1's referred to in Section 2.01(v) and (xiii), if not already filed, to be
filed in the applicable public recording office and upon filing will promptly
deliver to the Custodian the related UCC-1, with evidence of filing thereon. The
Depositor shall pay all recording fees of the Trustee and shall reimburse the
Trustee for all out-of-pocket expenses incurred and filing fees paid by the
Trustee in connection with its obligations under this paragraph. Copies of such
recorded or filed documents shall be delivered to the Master Servicer by the
Depositor or the Trustee, as applicable.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Depositor, the Trustee
or the Master Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
SECTION 2.02. Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified recorded document
described in Section 2.01 on the Closing Date, the Depositor shall use its best
efforts, promptly upon receipt thereof and in any case not later than 45 days
from the Closing Date, to deliver such original or certified recorded documents
to the Custodian (unless the Depositor is delayed in making such delivery by
reason of the fact that such documents shall not have been returned by the
appropriate recording office in which case it shall notify the Custodian and the
Trustee in writing of such delay and shall deliver such documents to the
Custodian promptly upon the Depositor's receipt thereof). By its execution and
delivery of this Agreement, the Trustee acknowledges the assignment to it of the
Mortgage Loans in good faith without notice of adverse claims and declares that
the Custodian holds and will hold such documents and all others delivered to it
constituting the Mortgage File (to the extent the documents constituting the
Mortgage File are actually delivered to the Custodian) for any Mortgage Loan
assigned to the Trustee hereunder in trust, upon the conditions herein set
forth, for the use and benefit of all present and future Certificateholders. The
Trustee agrees to review each Mortgage File within 45 days after the later of
(a) the Trustee's receipt of such Mortgage File or (b) execution and delivery of
this Agreement, to ascertain that all documents (other than the Environmental
Reports referred to in clause (ix) of Section 2.01 which shall be delivered to
the Master Servicer) referred to in Section 2.01 above (in the case of the
documents referred to in Section 2.01(iv), (v), (vi), (vii) (in the case of any
endorsement thereto) and (viii) and (x) through (xvi), as identified to it in
writing by the Depositor) and any original recorded documents referred to in the
first sentence of this Section 2.02 included in the delivery of a Mortgage File
have been received, have been executed, appear to be what they purport to be,
purport to be recorded or filed (as applicable) and have not been torn,
mutilated or otherwise defaced, and that such documents relate to the Mortgage
Loans identified in the Mortgage Loan Schedule. In so doing, the Trustee may
rely on the purported due execution and genuineness of any such document and on
the purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, appear
not to be what they purport to be or have been torn, mutilated or otherwise
defaced, the Trustee shall promptly so notify the Depositor and MSMC by
providing a written report, setting forth for each affected Mortgage Loan, with
particularity, the nature of the defective or missing document. The Depositor
shall, or shall cause MSMC to, deliver an executed, recorded or undamaged
document, as applicable, within 90 days of receipt of such notice or, if the
failure to deliver such document in such form has a material adverse effect on
the security provided by the related Mortgaged Property, the Depositor shall, or
shall cause MSMC to, repurchase the related Mortgage Loan in the manner and
within the time period provided in Section 2.03. None of the Master Servicer,
the Special Servicer and the Trustee shall be responsible for any loss, cost,
damage or expense to the Trust Fund resulting from any failure to receive any
document constituting a portion of a Mortgage File noted on such a report.
The Trustee shall hold that portion of the Trust Fund delivered to the
Trustee consisting of "instruments" (as such term is defined in Section 9-105(i)
of the Uniform Commercial Code as in effect in Illinois on the date hereof) in
the State of Illinois and, except as otherwise specifically provided in this
Agreement, shall not remove such instruments from the State of Illinois unless
it receives an Opinion of Counsel (obtained and delivered at the expense of the
Person requesting the removal of such instruments from the State of Illinois)
that in the event the transfer of the Mortgage Loans to the Trustee is deemed
not to be a sale, after such removal, the Trustee will possess a first priority
perfected security interest in such instruments.
SECTION 2.03. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) The Depositor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and
has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby,
including, but not limited to, the power and authority to sell,
assign and transfer the Mortgage Loans in accordance with this
Agreement;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Depositor and assuming the due authorization,
execution and delivery of this Agreement by each other party
hereto, this Agreement and all of the obligations of the
Depositor hereunder are the legal, valid and binding obligations
of the Depositor, enforceable in accordance with the terms of
this Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the performance
of its obligations hereunder by the Depositor will not conflict
with any provision of its certificate of incorporation or bylaws,
or any law or regulation to which the Depositor is subject, or
conflict with, result in a breach of or constitute a default
under (or an event which with notice or lapse of time or both
would constitute a default under) any of the terms, conditions or
provisions of any agreement or instrument to which the Depositor
is a party or by which it is bound, or any order or decree
applicable to the Depositor, or result in the creation or
imposition of any lien on any of the Depositor's assets or
property, which would materially and adversely affect the ability
of the Depositor to carry out the transactions contemplated by
this Agreement. The Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the
Depositor of this Agreement;
(v) There is no action, suit or proceeding pending against the
Depositor in any court or by or before any other governmental
agency or instrumentality which would materially and adversely
affect the ability of the Depositor to carry out its obligations
under this Agreement; and
(vi) The Trustee, if not the owner of the related Mortgage Loan, will
have a valid and perfected security interest of first priority in
each of the Mortgage Loans and any proceeds thereof.
(b) It is understood and agreed that the representations and warranties set
forth in this Section 2.03 shall survive delivery of the respective Mortgage
Files to the Trustee until the termination of this Agreement, and shall inure to
the benefit of the Certificateholders and the Master Servicer.
(c) Upon discovery by the Custodian, the Master Servicer, the Special
Servicer, or the Trustee of a breach of any representation or warranty of MSMC
in the Loan Sale Agreement, with respect to any Mortgage Loan, or that any
document required to be included in the Mortgage File does not conform to the
requirements of Section 2.01, such Person shall give prompt notice thereof to
MSMC and the Depositor, and MSMC shall, to the extent MSMC is obligated to cure
or repurchase the related Mortgage Loan, under the terms of the Loan Sale
Agreement, either cure such breach or repurchase said Mortgage Loan, at the
Repurchase Price within 90 days of the receipt of notice of the breach; it being
understood and agreed that none of the Custodian, the Master Servicer, the
Special Servicer, and the Trustee has an obligation to conduct any investigation
with respect to such matters (except, in the case of the Mortgage Files, to the
extent provided in Section 2.01); provided, however, that in the event that such
breach or non-conformity (other than a breach or non-conformity that would cause
a related Mortgage Loan to fail to qualify as a Qualified Mortgage) is capable
of being cured but not within such 90 day period and MSMC has commenced and is
diligently proceeding with the cure of such breach or non-conformity within such
90 day period, MSMC shall have an additional 90 days to complete such cure;
provided, further, that with respect to such additional 90 day period MSMC shall
have delivered an officer's certificate to the Trustee and the Master Servicer
setting forth the reason such breach is not capable of being cured within the
initial 90 day period and what actions MSMC is pursuing in connection with the
cure thereof and stating that MSMC anticipates that such breach will be cured
within the additional 90 day period.
(d) Upon receipt by the Master Servicer from MSMC of the Repurchase Price
for the repurchased Mortgage Loan, the Master Servicer shall deposit such amount
in the Collection Account, and the Trustee, pursuant to Section 3.11, shall,
upon receipt of a certificate of a Servicing Officer certifying as to the
receipt by the Master Servicer of the Repurchase Price and the deposit of the
Repurchase Price into the Collection Account pursuant to this Section 2.03(d),
release or cause to be released to MSMC the related Mortgage File and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as shall be prepared by the Master
Servicer to vest in MSMC any Mortgage Loan released pursuant hereto, and any
rights of MSMC in, to and under the Loan Sale Agreement as it relates to such
Mortgage Loan, that were initially transferred to the Trust Fund under Section
2.01, and the Trustee and the Master Servicer shall have no further
responsibility with regard to such Mortgage File.
(e) In the event that MSMC incurs any expense in connection with curing a
breach of a representation or warranty pursuant to Section 2.03(c) which also
constitutes a default under the related Mortgage Loan, MSMC shall have a right,
subrogated to that of the Trustee, as successor to the mortgagee, to recover the
amount of such expenses from the related Borrower. The Master Servicer shall use
reasonable efforts in recovering, or assisting MSMC in recovering, from the
related Borrower the amount of any such expenses.
SECTION 2.04. Representations, Warranties and Covenants of the Master
Servicer and Special Servicer.
(a) The Master Servicer, in its capacity as Master Servicer hereunder,
hereby represents, warrants and covenants that as of the Closing Date or as of
such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
California; the Master Servicer is and throughout the term of
this Agreement shall remain to the extent necessary duly
authorized and qualified to transact in the jurisdiction where
any Mortgaged Property is located any and all business
contemplated by this Agreement; the Master Servicer possesses and
shall continue to possess all requisite authority, power,
licenses, permits, franchises, and approvals to conduct its
business and to execute, deliver, and comply with its obligations
under this Agreement;
(ii) The execution and delivery of this Agreement and the Master
Servicer's performance of and compliance with the terms hereof in
the manner contemplated by this Agreement will not violate the
charter or by-laws of the Master Servicer, respectively, or any
other instrument governing its operations, or any laws,
regulations, orders or decrees of any governmental authority
applicable to the Master Servicer, and will not constitute a
default (or any event which, with notice or lapse of time or
both, would constitute a default) under any contract, agreement,
or other instrument to which the Master Servicer is a party or
which may be applicable to any of its assets;
(iii) The Agreement constitutes a valid, legal, and binding obligation
of the Master Servicer, enforceable against it in accordance with
its terms, subject to bankruptcy laws and other similar laws of
general application affecting rights of creditors and subject to
the application of the rules of equity, including those
respecting the availability of specific performance;
(iv) The Agreement has been duly executed and delivered by the Master
Servicer;
(v) All consents, approvals, authorizations, orders or filings of or
with any court or governmental agency or body, if any, required
for the execution, delivery and performance of this Agreement by
the Master Servicer have been obtained or made;
(vi) There is no pending action, suit or proceeding, arbitration or
governmental investigation against the Master Servicer the
outcome of which could reasonably be expected to materially
affect the Master Servicer's performance under this Agreement;
(vii) The Master Servicer will examine each Sub-Servicing Agreement and
will be familiar with the terms thereof. Any Sub-Servicing
Agreements will comply with the provisions of Section 3.01; and
(viii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of
Mortgage Loans is covered by errors and omissions insurance in
the amounts and with the coverage required by Section 3.08.
Neither the Master Servicer nor, to the best of the Master
Servicer's knowledge, any of its officers or employees that is
involved in the servicing or administration of Mortgage Loans has
been refused such coverage or insurance.
(b) The Special Servicer, hereby represents, warrants and covenants that as
of the Closing Date or as of such date specifically provided herein:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of the
jurisdiction of its formation and has all licenses necessary to
carry on its business as now being conducted or will be in
compliance with the laws of each state or foreign jurisdiction in
which any Mortgaged Property is located to the extent necessary
to comply with its duties and responsibilities hereunder with
respect to each Mortgage Loan in accordance with the terms of
this Agreement;
(ii) The Special Servicer has the full corporate power, authority and
legal right to execute and deliver this Agreement and to perform
in accordance herewith; the execution and delivery of this
Agreement by the Special Servicer and its performance and
compliance with the terms of this Agreement will not violate the
Special Servicer's charter or by-laws or constitute a default (or
an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the
Special Servicer is a party or which may be applicable to the
Special Servicer or any of its assets;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Special Servicer and, assuming due
authorization, execution and delivery by the other parties
hereto, constitutes a legal, valid and binding obligation of the
Special Servicer, enforceable against it in accordance with the
terms of this Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and all requisite corporate
action has been taken by the Special Servicer to make this
Agreement and all agreements contemplated hereby valid and
binding upon the Special Servicer in accordance with their terms;
(iv) The Special Servicer is not in violation of, and the execution
and delivery of this Agreement by the Special Servicer and its
performance and compliance with the terms of this Agreement will
not constitute a violation with respect to, any statute, order or
decree of any court binding on the Special Servicer or any order
or regulation of any federal, state, municipal or governmental
agency having jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance which, in any such
event, would have consequences that would materially and
adversely affect the condition (financial or otherwise) or
operation of the Special Servicer or its properties or impair the
ability of the Trust Fund to realize on the Mortgage Loans;
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Special Servicer which, either in any one
instance or in the aggregate, would result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Special Servicer, or in any material
impairment of the right, or would, if adversely determined,
materially impair the ability of the Special Servicer, to carry
on its business substantially as now conducted, or in any
material liability on the part of the Special Servicer, or which
would draw into question the validity of this Agreement or the
Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Special Servicer
contemplated herein, or which would be likely to impair
materially the ability of the Special Servicer to perform under
the terms of this Agreement;
(vi) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or
body, is required for the execution, delivery and performance by
the Special Servicer of or compliance by the Special Servicer
with this Agreement, or if required, such approval has been
obtained prior to the Cut-Off Date; and
(vii) Each officer or employee of the Special Servicer that has or will
have responsibilities concerning the servicing and administration
of Mortgage Loans is covered by errors and omissions insurance in
the amounts and with the coverage required by Section 3.08.
Neither the Special Servicer nor, to the best of the Special
Servicer's knowledge, any of its officers or employees that is or
will be involved in the servicing or administration of Mortgage
Loans has been refused such coverage or insurance.
(c) It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective Mortgage Files to
the Trustee or the Custodian on behalf of the Trustee until the termination of
this Agreement, and shall inure to the benefit of the Trustee, the Depositor and
the Master Servicer or Special Servicer, as the case may be. Upon discovery by
the Depositor, the Master Servicer, the Special Servicer or a Responsible
Officer of the Trustee (or upon written notice thereof from any
Certificateholder) of a breach of any of the representations and warranties set
forth in this Section which materially and adversely affects the interests of
the Certificateholders, the Master Servicer, the Special Servicer or the Trustee
in any Mortgage Loan, the party discovering such breach shall give prompt
written notice to the other parties hereto.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery of the Mortgage Files to the Custodian (to the extent the documents
constituting the Mortgage Files are actually delivered to the Custodian),
subject to the provisions of Section 2.01 and Section 2.02 and, concurrently
with such delivery, (i) the Trustee acknowledges the issuance of the Lower-Tier
Regular Interests to the Depositor and the execution, authentication, and
delivery of the Class LR Certificates to or upon the order of the Depositor,
evidencing ownership of the entire Lower-Tier REMIC, in exchange for the
Mortgage Loans (other than the Hancock Retained Interest, the Deferred Interest
and the Default Interest), receipt of which is hereby acknowledged, (ii) the
Depositor hereby conveys all rights, title and interest in and to the Lower-Tier
Regular Interests to the Trustee and (iii) the Trustee acknowledges that it has
executed and caused to be authenticated and delivered to and upon the order of
the Depositor, (A) in exchange for the Lower-Tier Regular Interests and the
Deferred Interest, the Regular Certificates and the Class R Certificates and (B)
in exchange for the Default Interest, the Class Q Certificates, in authorized
denominations, registered in the names set forth in such order and duly
authenticated by the Trustee evidencing ownership of the Upper-Tier REMIC and
the undivided interests in the Grantor Trust set forth in Section 2.06(b).
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC, Class
LD, Class LE, Class LF, Class LG and Class LH Interests are hereby designated as
"regular interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(1) of the Code, and the Class LR Certificates are hereby designated as
the sole class of "residual interests" in the Lower-Tier REMIC within the
meaning of Section 860G(a)(2) of the Code. The Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates are hereby designated as representing beneficial interests in
"regular interests" in the Upper-Tier REMIC within the meaning of Section
860G(a)(1) of the Code and the Class R Certificates are hereby designated as the
sole class of "residual interests" in the Upper-Tier REMIC within the meaning of
Section 860G(a)(2) of the Code. The Closing Date is hereby designated as the
"Startup Day" of the Lower-Tier REMIC and the Upper-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code. The "latest possible maturity date"
of the Lower-Tier Regular Interests and the Regular Certificates for purposes of
Section 860G(a)(1) of the Code is the Scheduled Final Distribution Date.
(b) The Class Q Certificates represent pro rata undivided beneficial
interests in the Default Interest (subject to the obligation of the Trust Fund
to pay the Advance Interest Amounts), proceeds therefrom and the Class Q
Distribution Account. The Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates represent pro rata undivided beneficial interests in
any Deferred Interest with respect to the Mortgage Loans and related portions of
the Deferred Interest Distribution Account, in the proportions specified in
Section 4.01(e). The Class Q Certificates do not represent regular or residual
interests in either the Upper-Tier REMIC or the Lower-Tier REMIC.
(c) John Hancock shall be the beneficial owner of the Hancock Retained
Interest.
(d) None of the Depositor, the Trustee, the Master Servicer, the Fiscal
Agent or the Special Servicer shall enter into any arrangement by which the
Trust Fund will receive a fee or other compensation for services other than as
specifically contemplated herein.
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer; Administration of
the Mortgage Loans.
(a) The Master Servicer and the Special Servicer, each as
an independent contractor, shall service and administer the Mortgage Loans on
behalf of the Trust Fund and the Trustee (as trustee for Certificateholders) in
accordance with the Servicing Standard. To the extent consistent with the
foregoing and subject to any express limitations set forth in this Agreement,
the Master Servicer and Special Servicer shall seek to maximize the timely and
complete recovery of principal and interest on the Mortgage Loans. Subject only
to the Servicing Standard, the Master Servicer and Special Servicer shall have
full power and authority, acting alone or through sub-servicers (subject to
paragraph (c) of this Section 3.01 and to Section 3.02), to do or cause to be
done any and all things in connection with such servicing and administration
which it may deem consistent with the Servicing Standard and, in its reasonable
judgment, in the best interests of the Certificateholders, including, without
limitation, with respect to each Mortgage Loan, to prepare, execute and deliver,
on behalf of the Certificateholders and the Trustee or any of them: (i) any and
all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien on each Mortgaged Property and
related collateral; (ii) subject to Sections 3.09, 3.10, 3.25 and 3.26, any
modifications, waivers, consents or amendments to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties. Notwithstanding the foregoing, neither the
Master Servicer nor the Special Servicer shall modify, amend, waive or otherwise
consent to any change of the terms of any Mortgage Loan except under the
circumstances described in Sections 3.09, 3.10, 3.25 and 3.26 or the definition
of Extended Monthly Payment hereof. The Master Servicer and Special Servicer
shall service and administer the Mortgage Loans in accordance with applicable
law and shall provide to the Borrowers any reports required to be provided to
them thereby. Subject to Section 3.11, the Trustee shall, upon the receipt of a
written request of a Servicing Officer, execute and deliver to the Master
Servicer and Special Servicer any powers of attorney and other documents
prepared by the Master Servicer and Special Servicer and necessary or
appropriate (as certified in such written request) to enable the Master Servicer
and Special Servicer to carry out their servicing and administrative duties
hereunder. Each of the Master Servicer and the Special Servicer shall indemnify
the Trustee for any and all costs, liabilities and expenses incurred by the
Trustee in connection with the negligent or willful misuse of such powers of
attorney by the Master Servicer or the Special Servicer, as applicable.
(b) Unless otherwise provided in the related Loan Documents, the Master
Servicer shall apply any partial Principal Prepayment received on a Mortgage
Loan on a date other than a Due Date to the principal balance of such Mortgage
Loan as of the Due Date immediately following the date of receipt of such
partial Principal Prepayment. Unless otherwise provided in the related Loan
Documents, the Master Servicer shall apply any amounts received on U.S. Treasury
obligations (which shall not be redeemed by the Master Servicer prior to the
maturity thereof) in respect of a Mortgage Loan being defeased pursuant to its
terms to the principal balance of and interest on such Mortgage Loan as of the
Due Date immediately following the receipt of such amounts.
(c) Each of the Master Servicer and the Special Servicer may enter into
sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided that (i) any such agreement shall be
consistent with the provisions of this Agreement (except that Trowbridge,
Kieselhorst & Co. Inc. ("Trowbridge") may deliver its annual Accountant's
Statement (as described in Section 3.15 hereof), no later than May 31 of each
year, beginning with May 31, 1998), (ii) no sub-servicer retained by the Master
Servicer or the Special Servicer, as applicable, shall grant any modification,
waiver or amendment to any Mortgage Loan without the approval of the Master
Servicer or the Special Servicer, as applicable, which approval shall be given
or withheld in accordance with the procedures set forth in Sections 3.09, 3.10,
3.25, 3.26, or the definition of Extended Monthly Payment and (iii) such
agreement shall be consistent with the Servicing Standard. Any such
sub-servicing agreement may permit the sub-servicer to delegate its duties to
agents or subcontractors so long as the related agreements or arrangements with
such agents or subcontractors are consistent with the provisions of this Section
3.01(c). Any sub-servicing agreement entered into by the Master Servicer or the
Special Servicer, as applicable, shall provide that it may be assumed or
terminated by the Trustee, if the Trustee has assumed the duties of the Master
Servicer or the Special Servicer, or by any successor Master Servicer or Special
Servicer, as applicable, without cost or obligation to the assuming or
terminating party or the Trust Fund, upon the assumption by such party of the
obligations of the Master Servicer or the Special Servicer, as applicable,
pursuant to Section 7.02; provided, however, the Trustee or any successor Master
Servicer or Special Servicer, as applicable, shall assume the sub-servicing
agreements with (i) John Hancock Mutual Life Insurance Company ("John Hancock")
and (ii) Trowbridge, that may be entered into on or after the date hereof,
provided that John Hancock and Trowbridge remain "acceptable" as a sub-servicer
to the Rating Agencies.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Master Servicer or the Special Servicer, as the case may be, and
such sub-servicer alone, and the Trustee, the Trust Fund and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the sub-servicer,
except as set forth in Section 3.01(d) and no provision herein may be construed
so as to require the Trust Fund to indemnify any such sub-servicer.
(d) If the Trustee or any successor Master Servicer assumes the obligations
of the Master Servicer, or if the Trustee or any successor Special Servicer
assumes the obligations of the Special Servicer, in each case in accordance with
Section 7.02, the Trustee or such successor, as applicable, to the extent
necessary to permit the Trustee or such successor, as applicable, to carry out
the provisions of Section 7.02, shall, without act or deed on the part of the
Trustee or such successor, as applicable, succeed to all of the rights and
obligations of the Master Servicer or the Special Servicer, as applicable, under
any sub-servicing agreement entered into by the Master Servicer or the Special
Servicer, as applicable, pursuant to Section 3.01(c), subject to the right of
termination by the Trustee set forth in Section 3.01(c). In such event, the
Trustee or the successor Master Servicer or the successor Special Servicer, as
applicable, shall be deemed to have assumed all of the Master Servicer's or the
Special Servicer's interest, as applicable, therein (but not any liabilities or
obligations in respect of acts or omissions of the Master Servicer or the
Special Servicer, as applicable, prior to such deemed assumption) and to have
replaced the Master Servicer or the Special Servicer, as applicable, as a party
to such sub-servicing agreement to the same extent as if such sub-servicing
agreement had been assigned to the Trustee or such successor Master Servicer or
successor Special Servicer, as applicable, except that the Master Servicer or
Special Servicer, as applicable, shall not thereby be relieved of any liability
or obligations under such sub-servicing agreement that accrued prior to the
succession of the Trustee or the successor Master Servicer or successor Special
Servicer, as applicable.
In the event that the Trustee or any successor Master Servicer or successor
Special Servicer, as applicable, assumes the servicing obligations of the Master
Servicer or the Special Servicer, as applicable, upon request of the Trustee, or
such successor Master Servicer or Special Servicer, as applicable, the Master
Servicer or Special Servicer shall at its own expense deliver to the Trustee or
such successor Master Servicer or Special Servicer, as applicable, all documents
and records relating to any sub-servicing agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held by it,
if any, and will otherwise use its best efforts to effect the orderly and
efficient transfer of any sub-servicing agreement to the Trustee or the
successor Master Servicer or Special Servicer, as applicable.
SECTION 3.02. Liability of the Master Servicer and Special Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer or
Special Servicer and any Person acting as sub-servicer (or its agents or
subcontractors) or any reference to actions taken through any Person acting as
sub-servicer or otherwise, the Master Servicer or Special Servicer, as
applicable, shall remain obligated and primarily liable for the servicing and
administering of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
sub-servicing agreements or arrangements or by virtue of indemnification from
any Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Master Servicer or
Special Servicer, as applicable, alone were servicing and administering the
Mortgage Loans. Each of the Master Servicer and the Special Servicer shall be
entitled to enter into an agreement with any sub-servicer providing for
indemnification of the Master Servicer or Special Servicer, as applicable, by
such sub-servicer, and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification, but no such agreement for indemnification
shall be deemed to limit or modify this Agreement.
SECTION 3.03. Collection of Certain Mortgage Loan Payments.
(a) The Master Servicer or the Special Servicer, as applicable, shall use
its reasonable best efforts, consistent with the Servicing Standard, to collect
all payments called for under the terms and provisions of the Mortgage Loans it
is obligated to service hereunder, and shall follow the Servicing Standard with
respect to such collection procedures. The Master Servicer or the Special
Servicer, as applicable, shall use its reasonable best efforts, consistent with
the Servicing Standard, to collect income statements, rent rolls and other
reporting information from Borrowers as required by the related Loan Documents
and the terms hereof. Consistent with the foregoing, the Master Servicer or
Special Servicer, as applicable, may in its discretion waive any late payment
charge in connection with any delinquent Monthly Payment with respect to any
Mortgage Loan. In addition, the Master Servicer shall be entitled to take such
actions with respect to the collection of payments on the Mortgage Loans as are
permitted or required under Section 3.25 hereof.
(b) In the event that the Master Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Deferred
Interest in any Collection Period, the Master Servicer or Special Servicer, as
applicable, will promptly notify the Trustee.
SECTION 3.04. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage Loan),
the Master Servicer shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of taxes, assessments, ground rents and
other similar items that are or may become a lien on the related Mortgaged
Property and the status of insurance premiums payable with respect thereto. From
time to time, the Master Servicer shall (i) obtain all bills for the payment of
such items (including renewal premiums), and (ii) effect payment of all such
bills with respect to such Mortgaged Properties prior to the applicable penalty
or termination date, in each case employing for such purpose Escrow Payments as
allowed under the terms of the related Mortgage Loan. If a Borrower fails to
make any such payment on a timely basis or collections from the Borrower are
insufficient to pay any such item before the applicable penalty or termination
date, the Master Servicer shall advance the amount of any shortfall as a
Property Advance unless the Master Servicer determines in its good faith
business judgment that such Advance would be a Nonrecoverable Advance. The
Master Servicer shall be entitled to reimbursement of Advances, with interest
thereon at the Advance Rate, that it makes pursuant to the preceding sentence
from amounts received on or in respect of the related Mortgage Loan respecting
which such Advance was made or if such Advance has become a Nonrecoverable
Advance, to the extent permitted by Section 3.06 of this Agreement. No costs
incurred by the Master Servicer in effecting the payment of taxes and
assessments on the Mortgaged Properties shall, for the purpose of calculating
distributions to Certificateholders, be added to the amount owing under the
related Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit.
(b) The Master Servicer shall segregate and hold all funds collected and
received pursuant to any Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Payments shall be deposited within one Business Day after
receipt. The Master Servicer shall also deposit into each applicable Escrow
Account any amounts representing losses on Permitted Investments pursuant to
Section 3.07(b) and any Insurance Proceeds or Liquidation Proceeds which are
required to be applied to the restoration or repair of any Mortgaged Property
pursuant to the related Mortgage Loan. Escrow Accounts shall be Eligible
Accounts (except to the extent the related Mortgage Loan requires or permits it
to be held in an account that is not an Eligible Account) and shall be entitled,
"GMAC Commercial Mortgage Corporation, as Master Servicer, in trust for LaSalle
National Bank, as Trustee in trust for Holders of Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1997-XL1 and Various
Borrowers". Withdrawals from an Escrow Account may be made by the Master
Servicer only:
(i) to effect timely payments of items for which Escrow Payments have
been made in accordance with the related Loan Documents and in
accordance with the terms of the related Mortgage Loan;
(ii) to transfer funds to the Collection Account to reimburse the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as applicable, for any Advance (with interest thereon at
the Advance Rate) relating to Escrow Payments, but only from
amounts received with respect to the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan
and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement;
(v) to pay from time to time to the related Borrower (A) any interest
or investment income earned on funds deposited in the Escrow
Account if such income is required to be paid to the related
Borrower under law or by the terms of the Mortgage Loan, or
otherwise to the Master Servicer and (B) any other funds required
to be released to the related Borrowers pursuant to the related
Loan Documents; and
(vi) to remove any funds deposited in an Escrow Account that were not
required to be deposited therein.
SECTION 3.05. Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Class Q Distribution Account; and Deferred
Interest Distribution Account .
(a) The Master Servicer shall establish and maintain the Collection Account
in the Trustee's name, for the benefit of the Certificateholders and the Trustee
as the Holder of the Lower-Tier Regular Interests. The Collection Account shall
be established and maintained as an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Collection Account within one Business
Day following receipt the following payments and collections received or made by
it on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans,
including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and the
interest portion of all Unscheduled Payments;
(iii) all Prepayment Premiums;
(iv) any amounts required to be deposited pursuant to Section 3.07(b)
in connection with net losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) all Net REO Proceeds withdrawn from an REO Account pursuant to
Section 3.17(b) and all Net Insurance Proceeds and Net
Liquidation Proceeds;
(vi) any amounts received from Borrowers which represent recoveries of
Property Protection Expenses, to the extent not permitted to be
retained by the Master Servicer as provided herein; and
(vii) any other amounts required by the provisions of this Agreement to
be deposited into the Collection Account by the Master Servicer
or Special Servicer, including, without limitation, proceeds of
any repurchase of a Mortgage Loan pursuant to Sections 2.03(c)
hereof.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges (subject to
Section 3.12 hereof), Assumption Fees, loan service transaction fees, extension
fees, demand fees, beneficiary statement charges and similar fees need not be
deposited in the Collection Account by the Master Servicer and, to the extent
permitted by applicable law, the Master Servicer shall be entitled to retain any
such charges and fees received with respect to the Mortgage Loans. In the event
that the Master Servicer deposits in the Collection Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Collection Account, any provision herein to the contrary notwithstanding.
The Master Servicer shall give written notice to the Trustee of the location and
account number of the Collection Account and shall notify the Trustee in writing
of any subsequent change thereof.
(b) The Trustee shall establish and maintain (i) the Lower-Tier
Distribution Account in the name of the Trustee, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests; and (ii) the Upper-Tier Distribution Account in the name of the
Trustee, in trust for the benefit of the Certificateholders. The Lower-Tier
Distribution Account and Upper-Tier Distribution Account shall be established
and maintained as Eligible Accounts. With respect to each Distribution Date, on
or before such date the Trustee shall make the withdrawals from the Lower-Tier
Distribution Account, as set forth in Section 4.01 hereof, shall make the
deposits into the Upper-Tier Distribution Account, as set forth in Section 4.01
hereof, and shall cause the amount of Available Funds (including P&I Advances)
and Prepayment Premiums to be distributed in respect of the Certificates,
pursuant to Section 4.01 hereof on such date.
(c) The Trustee shall establish and maintain the Class Q Distribution
Account in the name of the Trustee in trust for the benefit of the Holders of
the Class Q Certificates. The Class Q Distribution Account shall be established
and maintained as an Eligible Account. On or before the Master Servicer
Remittance Date related to each Distribution Date, the Master Servicer shall
remit to the Trustee for deposit in the Class Q Distribution Account an amount
equal to (i) the amount of the aggregate Default Interest received during the
preceding Collection Period, minus (ii) any portions thereof withdrawn from the
Collection Account pursuant to clause (ii) of Section 3.06 or otherwise applied
to pay the Advance Interest Amount in respect of Advances (such amount, if any,
the "Net Default Interest" for such Distribution Date).
(d) Prior to the Master Servicer Remittance Date relating to the Collection
Period, if any, in which Deferred Interest is received, the Trustee shall
establish and maintain the Deferred Interest Distribution Account in the name of
the Trustee in trust for the benefit of the Certificateholders as set forth in
Section 2.06(b). The Deferred Interest Distribution Account shall be established
and maintained as an Eligible Account. On or before the Master Servicer
Remittance Date related to the applicable Distribution Date, the Master Servicer
shall remit to the Trustee for deposit in the Deferred Interest Distribution
Account an amount equal to the Deferred Interest received during the applicable
Collection Period.
Following the distribution of Deferred Interest to Certificateholders on
the first Distribution Date after which there are no longer any Mortgage Loans
outstanding which pursuant to their terms could pay Deferred Interest, the
Trustee shall terminate the Deferred Interest Distribution Account.
(e) Funds in the Collection Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.07.
SECTION 3.06. Permitted Withdrawals from the Collection Account.
The Master Servicer may make withdrawals from the Collection Account only
as described below (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account, the Class Q Distribution Account and the
Deferred Interest Distribution Account, the amounts required to
be deposited in the Lower-Tier Distribution Account, the Class Q
Distribution Account and the Deferred Interest Distribution
Account pursuant to Sections 4.01(a), 3.05(c) and 3.05(d),
respectively;
(ii) to pay or reimburse the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent for Advances and any related
Advance Interest Amounts (provided that the Trustee and the
Fiscal Agent shall have priority with respect to such payment or
reimbursement), the Master Servicer's right to reimburse any such
Person pursuant to this clause (ii) being limited to (x) any
collections on or in respect of the particular Mortgage Loan or
REO Property respecting which such Advance was made, or (y) any
other amounts in the Collection Account in the event that such
Advances have been deemed to be Nonrecoverable Advances or are
not recovered from such recoveries in respect of the related
Mortgage Loan or REO Property after a Final Recovery
Determination; provided, however, that, with respect to any
Mortgage Loan which provides for a grace period in connection
with Monthly Payments, the Master Servicer, Trustee or Fiscal
Agent, as applicable, shall only be entitled to interest on any
P&I Advance made with respect to such Mortgage Loan, from the
date such grace period expires and only to the extent that the
applicable Monthly Payment is not received prior to the
expiration of such grace period;
(iii) to pay on or before each Master Servicer Remittance Date to the
Master Servicer and the Special Servicer, as applicable, as
compensation, the aggregate unpaid Servicing Fee and Special
Servicing Compensation (if any), respectively, in respect of the
immediately preceding Interest Accrual Period, to be paid, in the
case of the Servicing Fee, from interest received on the related
Mortgage Loan, and to pay from time to time to the Master
Servicer in accordance with Section 3.07(b) any interest or
investment income earned on funds deposited in the Collection
Account;
(iv) to pay on or before each Distribution Date to the Depositor, MSMC
or any other applicable Person as the case may be, with respect
to each Mortgage Loan or REO Property that has previously been
purchased or repurchased by it pursuant to Section 2.03(c),
Section 3.18 or Section 9.01, all amounts received thereon during
the related Collection Period and subsequent to the date as of
which the amount required to effect such purchase or repurchase
was determined;
(v) to the extent not reimbursed or paid pursuant to any other clause
of this Section 3.06, to reimburse or pay the Master Servicer,
the Trustee, the Special Servicer, the Depositor or the Fiscal
Agent, as applicable, for unpaid Servicing Fees, Special
Servicing Compensation and other unpaid items incurred by such
Person pursuant to the second sentence of Section 3.07(c),
Section 3.08(a) and (b), Section 3.10, Section 3.12(d), Section
3.17(a), Section 3.18(b), Section 6.03, Section 7.04, Section
8.05(d) or Section 10.07, or any other provision of this
Agreement pursuant to which such Person is entitled to
reimbursement or payment from the Trust Fund, in each case only
to the extent expressly reimbursable under such Section, it being
acknowledged that this clause (vi) shall not be deemed to modify
the substance of any such Section, including the provisions of
such Section that set forth the extent to which one of the
foregoing Persons is or is not entitled to payment or
reimbursement;
(vi) to transfer to the Trustee for deposit in one or more separate,
non-interest bearing accounts any amount reasonably determined by
the Trustee to be necessary to pay any applicable federal, state
or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier
REMIC under the circumstances and to the extent described in
Section 4.05;
(vii) to withdraw any amount deposited into the Collection Account that
was not required to be deposited therein;
(viii) to the extent not otherwise retained by the Master Servicer or
John Hancock and to the extent actually collected, to remit to
John Hancock (or its successors in interest) any amounts relating
to the Hancock Retained Interest and the portion of any
Prepayment Premiums payable to John Hancock pursuant to the
Hancock Agreement; and
(ix) to clear and terminate the Collection Account pursuant to Section
9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to subclauses (ii)-(v) above.
The Master Servicer shall pay to the Trustee, the Fiscal Agent or the
Special Servicer from the Collection Account amounts permitted to be paid to the
Trustee, the Fiscal Agent or the Special Servicer therefrom as set forth above,
promptly upon receipt of a certificate of a Responsible Officer of the Trustee
or the Fiscal Agent or a certificate of a Servicing Officer, as applicable,
describing the item and amount to which such Person is entitled. The Master
Servicer may conclusively rely on any such certificate and shall have no duty to
recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer
shall in all cases have a right prior to the Certificateholders to any funds on
deposit in the Collection Account from time to time for the reimbursement or
payment of the Servicing Fees (including investment income), or Trustee Fees,
Special Servicing Compensation, Advances, Advance Interest Amounts and their
respective expenses hereunder to the extent such fees and expenses are to be
reimbursed or paid from amounts on deposit in the Collection Account pursuant to
this Agreement (and to have such amounts paid directly to third party
contractors for any invoices approved by the Trustee, the Master Servicer or the
Special Servicer, as applicable).
The Trustee shall, upon receipt, deposit in the Lower-Tier Distribution
Account, the Class Q Distribution Account and the Deferred Interest Distribution
Account any and all amounts received by the Trustee in accordance with Section
3.06(i). If, as of 3:00 p.m., New York City time, on any Master Servicer
Remittance Date or on such other date as any amount referred to in the foregoing
clause (i) is required to be delivered hereunder, the Master Servicer shall not
have delivered to the Trustee for deposit in the Lower-Tier Distribution
Account, the Class Q Distribution Account and the Deferred Interest Distribution
Account the amounts required to be deposited therein pursuant to Section
3.06(i), then the Trustee shall, to the extent that a Responsible Officer of the
Trustee has such knowledge, provide notice of such failure to the Master
Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such
alternative number provided by the Master Servicer to the Trustee in writing)
and by telephone at telephone no. (215) 328-1790 (or such alternative number
provided by the Master Servicer to the Trustee in writing) as soon as possible,
but in any event before 5:00 p.m., New York City time, on such day.
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the Borrower Accounts, and Other Accounts.
(a) The Master Servicer (or with respect to any REO Account, the Special
Servicer) may direct any Depository institution maintaining the Collection
Account and any Borrower Accounts (subject to the second succeeding sentence)
and any REO Account (each, for purposes of this Section 3.07, an "Investment
Account"), to invest the funds in such Investment Account in one or more
Permitted Investments that bear interest or are sold at a discount, and that
mature, unless payable on demand, no later than the Business Day preceding the
date on which such funds are required to be withdrawn from such Investment
Account pursuant to this Agreement. Any direction by the Master Servicer or the
Special Servicer to invest funds on deposit in an Investment Account shall be in
writing and shall certify that the requested investment is a Permitted
Investment which matures at or prior to the time required hereby or is payable
on demand. In the case of any Escrow Account, Lock-Box Account, Cash Collateral
Account or Reserve Account (the "Borrower Accounts"), the Master Servicer shall
act upon the written request of the related Borrower or Manager to the extent
the Master Servicer is required to do so under the terms of the respective
Mortgage Loan or related documents, provided that in the absence of appropriate
written instructions from the related Borrower or Manager meeting the
requirements of this Section 3.07, the Master Servicer shall have no obligation
to, but will be entitled to, direct the investment of funds in such accounts in
Permitted Investments. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment Account shall
be made in the name of the Trustee (in its capacity as such) or in the name of a
nominee of the Trustee. The Trustee shall have sole control (except with respect
to investment direction which shall be in the control of the Master Servicer, or
the Special Servicer, with respect to any REO Accounts), as an independent
contractor to the Trust Fund) over each such investment and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent (which shall initially be the Master Servicer),
together with any document of transfer, if any, necessary to transfer title to
such investment to the Trustee or its nominee. The Trustee shall have no
responsibility or liability with respect to the investment directions of the
Master Servicer or the Special Servicer, any Borrower or Manager or any losses
resulting therefrom, whether from Permitted Investments or otherwise. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (or the Special
Servicer), shall: (x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser of
(1) all amounts then payable thereunder and (2) the amount required to be
withdrawn on such date; and (y) demand payment of all amounts due thereunder
promptly upon determination by the Master Servicer (or the Special Servicer)
that such Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited in any
Investment Account shall be for the benefit of the Master Servicer (except with
respect to the investment of funds deposited in (i) any Borrower Account, which
shall be for the benefit of the related Borrower to the extent required under
the Mortgage Loan or applicable law or (ii) any REO Account, which shall be for
the benefit of the Special Servicer, and, if held in the Collection Account or
REO Account shall be subject to withdrawal by the Master Servicer or the Special
Servicer, as applicable, in accordance with Section 3.06 or Section 3.17(b), as
applicable. The Master Servicer (or with respect to any REO Account, the Special
Servicer) shall deposit from its own funds into any applicable Investment
Account, the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss; provided, however, that
the Master Servicer or Special Servicer, as applicable, may reduce the amount of
such payment to the extent it foregoes any investment income in such Investment
Account otherwise payable to it. The Master Servicer shall also deposit from its
own funds in any Borrower Account the amount of any loss incurred in respect of
Permitted Investments, except to the extent that amounts are invested for the
benefit of the Borrower under the terms of the Mortgage Loan or applicable law.
All amounts on deposit in the Lower-Tier Distribution Account, the
Upper-Tier Distribution Account and the Class Q Distribution Account shall be
held uninvested.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings. In the event the Trustee takes any such action, the
Trust Fund shall pay or reimburse the Trustee for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee in
connection therewith; provided, however, that the Trustee shall use its best
efforts to recover any such amounts from the Person responsible for such costs.
In the event that the Trustee does not take any such action, the Master Servicer
may, but is not obligated to, take such action at its own cost and expense.
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions
and Fidelity Coverage.
(a) The Master Servicer on behalf of the Trustee, as mortgagee, shall use
its reasonable best efforts, consistent with the Servicing Standard, cause the
related Borrower to maintain, to the extent required by each Mortgage Loan
(other than REO Mortgage Loans), and if the Borrower does not so maintain, shall
itself maintain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances to the extent the Trustee as mortgagee has an insurable
interest and to the extent available at commercially reasonable rates), (i) fire
and hazard insurance (and hurricane insurance, if applicable) with extended
coverage on the related Mortgaged Property in an amount which is at least equal
to the lesser of (A) one hundred percent (100%) of the then "full replacement
cost" of the improvements and equipment, (excluding foundations, footings and
excavation costs), without deduction for physical depreciation, and (B) the
outstanding principal balance of the related Mortgage Loan or such greater
amount as is necessary to prevent any reduction in such policy by reason of the
application of co-insurance provisions and to prevent the Trustee thereunder
from being deemed to be a co-insurer and provided such policy shall include a
"replacement cost" rider, (ii) insurance providing coverage against 18 months
(or such longer period or with such extended period endorsement as provided in
the related Mortgage or other Loan Document or, if the Mortgage Loan expressly
permits a shorter period, such shorter period) of rent interruptions and (iii)
such other insurance as is required in the related Mortgage Loan. The Special
Servicer shall maintain fire and hazard insurance with extended coverage on each
REO Property (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) in an amount which is at least equal to one hundred
percent (100%) of the then "full replacement cost" of the improvements and
equipment (excluding foundations, footings and excavation costs), without
deduction for physical depreciation. If the Special Servicer does not maintain
the insurance described in the preceding sentence or the required flood
insurance described below, the Master Servicer shall, as soon as practicable
after receipt of notice of such failure, maintain such insurance, and if the
Master Servicer does not maintain such insurance, the insurance required in the
first sentence of this Section 3.08(a) or the required flood insurance described
below (if the related Borrower fails to maintain such insurance), the Trustee
shall, as soon as practicable after receipt of notice of such failure, maintain
such insurance and if the Trustee does not maintain such insurance, the Fiscal
Agent shall do so, provided that, in each such case, such obligation will be
subject to the provisions of this Agreement concerning Nonrecoverable Advances
and to the availability of such insurance at commercially reasonable rates. The
Special Servicer shall maintain, with respect to each REO Property (i) public
liability insurance providing such coverage against such risks as the Special
Servicer determines, consistent with the related Loan Documents and the
Servicing Standard, to be in the best interests of the Trust Fund, (ii)
insurance providing coverage against 18 months (or such longer period of time as
is consistent with the Loan Documents and the Servicing Standard) of rent
interruptions and (iii) such other insurance as was required pursuant to the
terms of the related Mortgage Loan. All insurance for an REO Property shall be
from a Qualified Insurer. Any amounts collected by the Master Servicer or the
Special Servicer under any such policies (other than amounts required to be
applied to the restoration or repair of the related Mortgaged Property or
amounts to be released to the Borrower in accordance with the terms of the
related Loan Documents) shall be deposited into the Collection Account pursuant
to Section 3.05, subject to withdrawal pursuant to Section 3.06. Any cost
incurred by the Master Servicer or the Special Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no other additional insurance other than flood
insurance or earthquake insurance subject to the conditions set forth below is
to be required of any Borrower or to be maintained by the Master Servicer other
than pursuant to the terms of the related Loan Documents and pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property (other than an REO
Property) is located in a federally designated special flood hazard area, the
Master Servicer will use its best efforts to cause the related Borrower to
maintain, to the extent required by each Mortgage Loan, and if the related
Borrower does not so maintain, shall itself obtain (subject to the provisions of
this Agreement concerning Nonrecoverable Advances) and maintain flood insurance
in respect thereof. Such flood insurance shall be in an amount equal to the
lesser of (i) the unpaid principal balance of the related Mortgage Loan and (ii)
the maximum amount of such insurance required by the terms of the related
Mortgage Loan and as is available for the related property under the national
flood insurance program (assuming that the area in which such property is
located is participating in such program). If a Mortgaged Property is related to
a Mortgage Loan pursuant to which earthquake insurance was in place at the time
of origination and is required to be maintained pursuant to the terms of the
Mortgage Loan, the Master Servicer shall use its reasonable best efforts to
cause the related Borrower to maintain, and if the related Borrower does not so
maintain will itself obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances and for so long as such insurance continues
to be available at commercially reasonable rates) and maintain earthquake
insurance in respect thereof, in the amount required by the Mortgage Loan or, if
not specified, in-place at origination. If an REO Property (i) is located in a
federally designated special flood hazard area or (ii) is related to a Mortgage
Loan pursuant to which earthquake insurance was in place on the Closing Date and
continues to be available at commercially reasonable rates, the Special Servicer
will obtain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) and maintain flood insurance and/or earthquake
insurance in respect thereof providing the same coverage as described in the
preceding sentences or, with respect to earthquake insurance, in the amount
required by the Mortgage Loan or, if not specified, in-place at origination. If
at any time during the term of this Agreement a recovery under a flood or fire
and hazard insurance policy in respect of an REO Property is not available but
would have been available if such insurance were maintained thereon in
accordance with the standards applied to Mortgaged Properties described herein,
the Special Servicer shall (subject to the provisions hereof relating to
Nonrecoverable Advances) either (i) immediately deposit into the Collection
Account from its own funds the amount that would have been recovered or (ii)
apply to the restoration and repair of the property from its own funds the
amount that would have been recovered, if such application would be consistent
with the Servicing Standard; provided, however, that the Special Servicer shall
not be responsible for any shortfall in insurance proceeds resulting from an
insurer's refusal or inability to pay a claim. In the case of any insurance
otherwise required to be maintained pursuant to this Section that is not being
so maintained because the Master Servicer or the Special Servicer, as
applicable, has determined that it is not available at commercially reasonable
rates, the Master Servicer or the Special Servicer, as applicable, shall deliver
an Officers' Certificate to the Trustee, the Depositor and each Rating Agency
which details the steps that were taken in seeking such insurance and the
factors which led to the determination that such insurance was not so available.
Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in
maintaining insurance policies pursuant to this Section 3.08 shall be paid by
the Master Servicer or Special Servicer as a Property Advance and shall be
reimbursable to the Master Servicer or Special Servicer with interest at the
Advance Rate. The Master Servicer (or the Special Servicer, with respect to the
Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of
itself, the Trustee and the Certificateholders, claims under each related
insurance policy maintained pursuant to this Section 3.08(a) in a timely fashion
in accordance with the terms of such policy and to take such reasonable steps as
are necessary to receive payment or to permit recovery thereunder.
All insurance policies required hereunder shall name the Trustee, or the
Master Servicer or the Special Servicer on behalf of the Trustee, as the
mortgagee, as loss payee, and, unless otherwise required under the related Loan
Documents, or with respect to insurance maintained by a Borrower, otherwise
expressly permitted at the Borrower's election, shall be issued by Qualified
Insurers. Notwithstanding the foregoing, the Borrowers under the 605 Third
Avenue Loan, the Westshore Mall Loan, the Yorktown Shopping Center Loan, and the
Westgate Mall Loan shall, subject to Section 3.25(o) hereof, be permitted to
maintain property and rental loss insurance with insurers other than Qualified
Insurers, so long as (i) such insurance is maintained with the same insurers as
have issued such insurance to such Borrower on the Cut-Off Date, as set forth in
the "Current Insurance Schedule" included as Exhibit J hereto, (ii) such
insurance is maintained with such insurers only to the same extent as was
maintained on the Cut-Off Date, as set forth in Exhibit J hereto, and (iii) such
insurers maintain ratings from S&P and Best at least as high as their ratings
from S&P and Best on the Cut-Off Date, as set forth in Exhibit J hereto.
(b)(I) If the Master Servicer or the Special Servicer, as applicable,
obtains and maintains a blanket insurance policy insuring against fire and
hazard losses on all of the Mortgaged Properties (other than REO Properties) as
to which the related Borrower has not maintained insurance required by the
related Mortgage Loan or on all of the REO Properties, as the case may be, it
shall conclusively be deemed to have satisfied its respective obligations
concerning the maintenance of insurance coverage set forth in Section 3.08(a).
Any such blanket insurance policy shall be maintained with a Qualified Insurer.
A blanket insurance policy may contain a deductible clause, in which case the
Master Servicer or the Special Servicer, as applicable, shall, in the event that
(i) there shall not have been maintained on the related Mortgaged Property a
policy otherwise complying with the provisions of Section 3.08(a), and (ii)
there shall have been one or more losses which would have been covered by such a
policy had it been maintained, immediately deposit into the Collection Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause to the extent that any such deductible exceeds
the deductible limitation that pertained to the related Mortgage Loan, or, in
the absence of any such deductible limitation, the deductible limitation which
is consistent with the Servicing Standard. In connection with its activities as
Master Servicer or the Special Servicer hereunder, as applicable, the Master
Servicer and the Special Servicer, respectively, agree to prepare and present,
on behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy which it maintains in a timely fashion in accordance with the
terms of such policy and to take such reasonable steps as are necessary to
receive payment or permit recovery thereunder.
(II) If the Master Servicer or the Special Servicer, as applicable, causes
any Mortgaged Property or REO Property to be covered by a master force placed
insurance policy and such policy shall be issued by a Qualified Insurer and
provide no less coverage in scope and amount for such Mortgaged Property or REO
Property than the insurance required to be maintained pursuant to Section
3.08(a), then the Master Servicer or Special Servicer shall conclusively be
deemed to have satisfied its respective obligations to maintain insurance
pursuant to Section 3.08(a). Such policy may contain a deductible clause, in
which case the Master Servicer or the Special Servicer, as applicable, shall, in
the event that (i) there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the provisions of
Section 3.08(a), and (ii) there shall have been one or more losses which would
have been covered by such a policy had it been maintained, immediately deposit
into the Collection Account from its own funds the amount not otherwise payable
under such policy because of such deductible to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) The Master Servicer and the Special Servicer shall each maintain a
fidelity bond in the form and amount that would meet the servicing requirements
of FNMA or FHLMC, whichever is greater, with the Trustee named as
certificateholder or loss payee, as applicable thereunder. The Master Servicer
and the Special Servicer each shall be deemed to have complied with this
provision if one of its respective Affiliates has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as applicable. In
addition, the Master Servicer and the Special Servicer shall each keep in force
during the term of this Agreement a policy or policies of insurance covering
loss occasioned by the errors and omissions of its officers and employees in
connection with its obligations to service the Mortgage Loans hereunder in the
form and amount that would meet the servicing requirements of FNMA or FHLMC,
whichever is greater, with the Trustee named as certificateholder or loss payee,
as applicable thereunder. The Master Servicer and the Special Servicer shall
cause each and every sub-servicer for it to maintain, or cause to be maintained
by any agent or contractor servicing any Mortgage Loan on behalf of such
sub-servicer, a fidelity bond and an errors and omissions insurance policy which
satisfy the requirements for the fidelity bond and the errors and omissions
policy to be maintained by the Master Servicer pursuant to this Section 3.08(c).
All fidelity bonds and policies of errors and omissions insurance obtained under
this Section 3.08(c) shall be issued by a Qualified Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of
an interest in the related Mortgaged Property or related
Borrower, or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the related mortgagee in connection with any such sale
or other transfer,
then, for so long as such Mortgage Loan is included in the Trust
Fund, the Master Servicer or Special Servicer, as applicable, on behalf of the
Trust Fund shall not be required to enforce such due-on-sale clause and in
connection therewith shall not be required to (x) accelerate payments thereon or
(y) withhold its consent to such an assumption to the extent permitted under the
terms of the related Mortgage Loan if (x) such provision is not exercisable
under applicable law or such exercise is reasonably likely to result in
meritorious legal action by the related Borrower or (y) the Master Servicer or
Special Servicer, as applicable, determines, in accordance with the Servicing
Standard, that granting such consent would be likely to result in a greater
recovery, on a present value basis (discounting at the related Mortgage Rate),
than would enforcement of such clause. If the Master Servicer or Special
Servicer, as applicable, determines that granting of such consent would likely
result in a greater recovery, the Master Servicer or Special Servicer, as
applicable, is authorized to take or enter into an assumption agreement from or
with the Person to whom the related Mortgaged Property has been or is about to
be conveyed, and to release the original Borrower from liability upon the
Mortgage Loan and substitute the new Borrower as obligor thereon, provided, that
(a) the credit status of the prospective new Borrower is in compliance with the
Master Servicer's or Special Servicer's, as applicable, regular commercial
mortgage origination or servicing standards and criteria (as evidenced in
writing by the Master Servicer or Special Servicer) and the terms of the related
Mortgage and (b) the Master Servicer or Special Servicer has received written
confirmation from each Rating Agency that such assumption or substitution would
not, in and of itself, cause a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates. In connection with each such
assumption or substitution entered into by the Special Servicer, the Special
Servicer shall give prior notice thereof to the Master Servicer. The Master
Servicer or Special Servicer, as applicable, shall notify the Trustee that any
such assumption or substitution agreement has been completed by forwarding to
the Trustee (with a copy to the Master Servicer, if applicable,) the original
copy of such agreement, which copies shall be added to the related Mortgage File
and shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part thereof.
(b) Subject to Section 3.25(a), if any Mortgage Loan contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any lien or
other encumbrance on the related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the creation of
any such lien or other encumbrance on the related Mortgaged
Property,
then the Master Servicer or Special Servicer, as applicable, on behalf of
the Trust Fund, shall not be required to enforce such due-on-encumbrance clause
and in connection therewith will not be required to (i) accelerate the payments
on the related Mortgage Loan or (ii) withhold its consent to such lien or
encumbrance if in either case the Master Servicer or Special Servicer, as
applicable, (x) determines, in accordance with the Servicing Standard, that such
enforcement would not be in the best interests of the Trust Fund and (y)
receives prior written confirmation from each Rating Agency that granting such
consent would not, in and of itself, cause a downgrade, qualification or
withdrawal of any of the then current ratings assigned to the Certificates.
(c) Nothing in this Section 3.09 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any action
pursuant to this Section 3.09, neither the Master Servicer nor the Special
Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or the related
Note, other than pursuant to Section 3.26.
(e) With respect to any Mortgage Loan which permits release of Mortgaged
Properties through defeasance:
(i) In the event such Mortgage Loan requires that the Master Servicer
on behalf of the Trustee purchase the required U.S. government
obligations, the Master Servicer shall, at the Borrower's
expense, purchase such obligations in accordance with the terms
of such Mortgage Loan and hold the same on behalf of the Trust
Fund; provided, that the Master Servicer shall not accept the
amounts paid by the related Borrower to effect defeasance until
acceptable U.S. government obligations have been identified.
(ii) The Master Servicer shall obtain an Opinion of Counsel (which
shall be an expense of the related Borrower) to the effect that
the Trustee has a first priority security interest in the
defeasance deposit and the U.S. government obligations and the
assignment thereof is valid and enforceable; such opinion,
together with any other certificates or documents to be required
in connection with such defeasance shall be in form and substance
acceptable to the Master Servicer.
(iii) The Master Servicer shall obtain a certificate at the related
Borrower's expense from an Independent certified public
accountant certifying that the U.S. government obligations comply
with the requirements of the related Loan Agreement or Mortgage.
(iv) To the extent required by the related Loan Documents, prior to
permitting release of any Mortgaged Properties through
defeasance, the Master Servicer shall (at the Borrower's expense)
obtain written confirmation from each Rating Agency that such
defeasance would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned
to the Certificates.
(v) If the Mortgage Loan permits the related Borrower or the lender
or its designee to cause an accommodation borrower to assume such
defeased obligations, the Master Servicer shall establish at the
Borrower's cost and expense (and shall use its reasonable best
efforts to cause the related Borrower to consent to such
assumption) a special purpose entity to assume such obligations,
the establishment of which will not, as evidenced in a writing of
the Rating Agencies delivered to the Trustee, in and of itself,
result in the downgrade, qualification or withdrawals of the
ratings then assigned to the Certificates.
(vi) To the extent not expressly inconsistent with the related Loan
Documents, prior to permitting release of any Mortgaged Property
through defeasance, the Master Servicer shall obtain an Opinion
of Counsel (which shall be an expense of the related Borrower) to
the effect that such release will not cause either the Upper-Tier
REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding or cause a tax to be
imposed on the Trust Fund under the REMIC Provisions.
SECTION 3.10. Realization Upon Defaulted Mortgage Loans.
(a) Within 60 days after the occurrence of an Appraisal Reduction Event,
the Special Servicer shall obtain an Updated Appraisal of the related Mortgaged
Property or REO Property, as the case may be, the costs of which shall be a
Property Advance to be advanced by the Master Servicer; provided, however, that
the Special Servicer shall not be required to obtain an Updated Appraisal of any
Mortgaged Property with respect to which there exists an appraisal which is less
than twelve months old; provided, further, however, that with respect to an
Appraisal Reduction Event enumerated in clause (ii) of the definition of
Appraisal Reduction Event, the Special Servicer shall obtain such appraisal no
later than 120 days following the date of the related delinquency. The Master
Servicer or Special Servicer, as applicable, shall obtain annual letter updates
to the Updated Appraisal or new Updated Appraisals, provided, that in the event
that the Master Servicer or Special Servicer, as applicable, becomes aware
pursuant to the financial and property reports, if any, collected from the
related Borrower that net operating income with respect to any Mortgaged
Property (calculated as provided in the related Loan Documents) has dropped by
more than 10% for any fiscal year or the debt service coverage ratio of any
Mortgaged Property (calculated as provided in the related Loan Documents) has
fallen below 1.2 (based on such fiscal year's financial statements), the Master
Servicer or Special Servicer, as applicable, shall obtain a new Updated
Appraisal.
Following a default in the payment of any principal balance and accrued
interest remaining unpaid on the maturity date of a Mortgage Loan, either (x)
the Master Servicer shall continue to make P&I Advances (with respect to
delinquent Extended Monthly Payments or Monthly Payments, as applicable) in
accordance with Section 3.10(j), or (y) the Special Servicer shall foreclose or
elect to grant up to three consecutive one-year extensions of the Specially
Serviced Mortgage Loan; provided that the Special Servicer may only extend such
Mortgage Loan if (i) immediately prior to the default on the maturity date (or
the first or second anniversary thereof in the case of the second or third
extension, respectively), the related Borrower had made twelve consecutive
Monthly Payments (or Extended Monthly Payments (as defined herein) in the case
of the second or third extension) on or prior to their Due Dates, (ii) the
Special Servicer determines that (A) extension of such Mortgage Loan is
consistent with the Servicing Standard and (B) extension of such Mortgage Loan
is likely to result in a recovery which on a net present value basis would be
greater than the recovery that would result from a foreclosure, (iii) such
extension requires that all cash flow on all related Mortgage Properties in
excess of amounts required to operate and maintain such Mortgaged Properties be
applied to payments of principal and interest on such Mortgage Loan, (iv) the
Special Servicer terminates the related Manager unless the Special Servicer
determines that retaining such Manager is conducive to maintaining the value of
such Mortgaged Properties and (v) such extension requires the related Borrower
to make Extended Monthly Payments. The Special Servicer's determination to
extend shall be made in the Special Servicer's good faith judgment, and may, but
is not required to be, based on an Updated Appraisal or a letter update thereof.
In addition, the Special Servicer's determination set forth in clause (ii) above
shall be evidenced by an Officer's Certificate delivered to the Trustee and the
Depositor. The Officer's Certificate shall set forth the considerations of the
Special Servicer forming the basis of such determination (which shall include
but shall not be limited to information, to the extent available, such as
related income and expense statements, rent rolls, occupancy status, and
property inspections).
The Special Servicer will not agree to any extension of a Mortgage Loan
beyond the date which is two years prior to the Rated Final Distribution Date.
If the related Borrower fails to make an Extended Monthly Payment during the
initial extension period, no further extensions will be granted. In no event
will the Special Servicer be permitted to extend any Mortgage Loan at a rate
lower than the Mortgage Rate.
(b) In connection with any foreclosure, enforcement of the Loan Documents
or other acquisition, the Special Servicer shall pay the out-of-pocket costs and
expenses in any such proceedings as a Property Advance unless the Special
Servicer determines, in its good faith judgment, that such Advance would
constitute a Nonrecoverable Advance. The Special Servicer shall be entitled to
reimbursement of Advances (with interest at the Advance Rate) made pursuant to
the preceding sentence to the extent permitted by Section 3.06(ii).
If the Special Servicer elects to proceed with a non-judicial foreclosure
in accordance with the laws of the state where the Mortgaged Property is
located, the Special Servicer shall not be required to pursue a deficiency
judgment against the related Borrower or any other liable party if the laws of
the state do not permit such a deficiency judgment after a non-judicial
foreclosure or if the Special Servicer determines, in its best judgment, that
the likely recovery if a deficiency judgment is obtained will not be sufficient
to warrant the cost, time, expense and/or exposure of pursuing the deficiency
judgment and such determination is evidenced by an Officers' Certificate
delivered to the Trustee.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, to a co-trustee or to its nominee (which shall
not include the Master Servicer) or a separate trustee or co-trustee on behalf
of the Trustee as Holder of the Lower-Tier Regular Interests and on behalf of
the Holders of the Certificates. Notwithstanding any such acquisition of title
and cancellation of the related Mortgage Loan, such Mortgage Loan shall (except
for purposes of Section 9.01) be considered to be a REO Mortgage Loan held in
the Trust Fund until such time as the related REO Property shall be sold by the
Trust Fund and shall be reduced only by collections net of expenses. Consistent
with the foregoing, for purposes of all calculations hereunder, so long as such
Mortgage Loan shall be considered to be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such
Note and, for purposes of determining the Stated Principal
Balance thereof, the related amortization schedule in effect at
the time of any such acquisition of title remain in effect; and
(ii) Net REO Proceeds received in any month shall be applied to
amounts that would have been payable under the related Note in
accordance with the terms of such Note. In the absence of such
terms, Net REO Proceeds shall be deemed to have been received
first in payment of the accrued interest (not including Default
Interest or Deferred Interest) that remained unpaid on the date
that the related REO Property was acquired by the Trust Fund;
second in respect of the delinquent principal installments that
remained unpaid on such date; and thereafter, Net REO Proceeds
received in any month shall be applied to the payment of
installments of principal and accrued interest on such Mortgage
Loan deemed to be due and payable in accordance with the terms of
such Note and such amortization schedule. If such Net REO
Proceeds exceed the Monthly Payment then payable, the excess
shall be treated as a Principal Prepayment received in respect of
such Mortgage Loan.
(c) Notwithstanding any provision to the contrary, the Special Servicer
shall not acquire for the benefit of the Trust Fund any personal property
pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the
Special Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion
of Counsel (which opinion shall be an expense of the Trust Fund)
to the effect that the holding of such personal property by the
Trust Fund will not cause the imposition of a tax on the
Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions
or cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificate is
outstanding.
(d) Notwithstanding any provision to the contrary in this Agreement,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trust Fund, obtain title to any direct or indirect partnership interest or other
equity interest in any Borrower pledged pursuant to any pledge agreement.
(e) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or the Certificateholders,
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an updated environmental assessment report prepared by an Independent
Person who regularly conducts environmental audits, that:
(A) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an
environmental consultant, that it would be in the best
economic interest of the Trust Fund to take such actions as
are necessary to bring such Mortgaged Property in compliance
therewith; and
(B) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any
Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be
required under any currently effective federal, state or
local law or regulation, or that, if any such Hazardous
Materials are present for which such action could be
required, after consultation with an environmental
consultant, it would be in the best economic interest of the
Trust Fund to take such actions with respect to the affected
Mortgaged Property. In the event that the environmental
assessment first obtained by the Special Servicer with
respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable
environmental laws or that Hazardous Materials may be
present but does not definitively establish such fact, the
Special Servicer shall cause such further environmental
tests to be conducted by an Independent Person who regularly
conducts such tests as the Special Servicer shall deem
prudent to protect the interests of Certificateholders. Any
such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of
this Section 3.10.
(f) The environmental assessment contemplated by Section 3.10(e) shall be
prepared within two months of the determination that such assessment is required
by any Independent Person who regularly conducts environmental audits for
purchasers of commercial property where the Mortgaged Property is located, as
determined by the Special Servicer in a manner consistent with the Servicing
Standard. The Master Servicer shall advance the cost of preparation of such
environmental assessments unless the Master Servicer determines, in its good
faith judgment, that such Advance would be a Nonrecoverable Advance. The Master
Servicer shall be entitled to reimbursement of Advances (with interest at the
Advance Rate) made pursuant to the preceding sentence in the manner set forth in
Section 3.06.
(g) If the Special Servicer determines pursuant to Section 3.10(e)(A) that
a Mortgaged Property is not in compliance with applicable environmental laws but
that it is in the best economic interest of the Trust Fund to take such actions
as are necessary to bring such Mortgaged Property in compliance therewith, or if
the Special Servicer determines pursuant to Section 3.10(e)(B) that the
circumstances referred to therein relating to Hazardous Materials are present
but that it is in the best economic interest of the Trust Fund to take such
action with respect to the containment, clean-up or remediation of Hazardous
Materials affecting such Mortgaged Property as is required by law or regulation,
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund, but only if the Trustee has mailed notice
to the Holders of the Regular Certificates of such proposed action, which notice
shall be prepared by the Special Servicer and delivered to the Trustee, and only
if the Trustee does not receive, within 30 days of such notification,
instructions from the Holders of greater than 50% of the aggregate Voting Rights
of such Classes directing the Special Servicer not to take such action. None of
the Trustee, the Master Servicer or the Special Servicer shall be obligated to
take any action or not take any action pursuant to this Section 3.10(g) at the
direction of the Certificateholders unless the Certificateholders agree to
indemnify the Trustee, the Master Servicer and the Special Servicer with respect
to such action or inaction. The Special Servicer shall advance the cost of any
such compliance, containment, clean-up or remediation unless the Special
Servicer determines, in its good faith judgment, that such Advance would
constitute a Nonrecoverable Advance.
(h) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed.
The Special Servicer shall deliver a copy of any such report to the Trustee.
(i) The costs of any appraisal or annual letter update obtained pursuant to
this Section 3.10 shall be paid by the Master Servicer as an Advance and shall
be reimbursable from the Collection Account pursuant to Section 3.06.
(j) Following a default in the payment of principal or interest on a
Mortgage Loan, the Special Servicer, after consultation and agreement by the
Master Servicer, may elect not to foreclose or institute similar proceedings or
to modify the loan pursuant to Section 3.26 and instead the Master Servicer
shall continue to make P&I Advances with respect to such delinquencies so long
as the Special Servicer, in its reasonable judgment in accordance with the
Servicing Standard, after consultation and agreement by the Master Servicer,
concludes (a) that the election not to foreclose or to modify would likely
result in a greater recovery, on a present value basis, than would foreclosure
or modification and (b) such P&I Advances will not be Nonrecoverable Advances.
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Master Servicer shall immediately notify the
Trustee or the Custodian by a certification (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.05 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Master Servicer or Special Servicer
and delivery to the Trustee and the Custodian of a Request for Release, the
Trustee shall promptly cause the Custodian to release the Mortgage File (or any
portion thereof) designated in such Request for Release to the Master Servicer
or Special Servicer, as applicable. Upon return of the foregoing to the
Custodian, or in the event of a liquidation or conversion of the Mortgage Loan
into an REO Property, receipt by the Trustee of a certificate of a Servicing
Officer stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Collection Account or the Lower-Tier
Distribution Account, as applicable, have been so deposited, or that such
Mortgage Loan has become an REO Property, the Custodian shall deliver a copy of
the Request for Release to the Master Servicer or Special Servicer, as
applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Mortgage Loan or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Loan Documents or otherwise
available at law or in equity. Each such certification shall include a request
that such pleadings or documents be executed by the Trustee and a statement as
to the reason such documents or pleadings are required, and that the execution
and delivery thereof by the Trustee will not invalidate or otherwise affect the
lien of the Mortgage or other security agreement, except for the termination of
such lien upon completion of the foreclosure or trustee's sale.
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled, with respect to each Mortgage Loan and each Interest Accrual
Period, to the Servicing Fee, which shall be payable from amounts on deposit in
the Collection Account as set forth in Section 3.06(iii). The Master Servicer's
rights to the Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement. In addition, the Master Servicer shall be
entitled to receive, as additional servicing compensation, to the extent
permitted by applicable law and the related Mortgage Loans, any late payment
charges, Assumption Fees, extension fees, loan service transaction fees, demand
fees, beneficiary statement charges, or similar items (but not including any Net
Default Interest or Prepayment Premiums), in each case to the extent received
and not required to be deposited or retained in the Collection Account pursuant
to Section 3.05; provided, however, that the Master Servicer shall not be
entitled to apply or retain any amounts as additional compensation, including
any late payment charges, with respect to a specific Mortgage Loan with respect
to which a default or event of default thereunder has occurred and is continuing
unless and until such default or event of default has been cured and all
delinquent amounts (including any Default Interest) due with respect to such
Mortgage Loan have been paid. The Master Servicer shall also be entitled
pursuant to, and to the extent provided in, Sections 3.06(iii) and 3.07(b) to
withdraw from the Collection Account and to receive from any Borrower Accounts
(to the extent not payable to the related Borrower under the Mortgage Loan or
applicable law) any interest or other income earned on deposits therein.
If the Depositor and Master Servicer agree to increase the Servicing Fee
Rate with respect to the North Shore Towers Loan, no amendment to this Agreement
shall be required so long as the Hancock Retained Interest is reduced by an
amount corresponding to such increase in the Servicing Fee Rate.
Notwithstanding the foregoing, the aggregate Servicing Fee (minus the
Trustee Fee and the Mansion Grove Subservicing Fee) due to the Master Servicer
with respect to any Distribution Date shall be reduced by the aggregate amount
of any Prepayment Interest Shortfalls for the related Collection Period.
As compensation for its activities hereunder, on each Distribution Date the
Trustee shall be entitled with respect to each Mortgage Loan to the Trustee Fee,
which shall be payable by the Master Servicer out of the aggregate Servicing
Fee. The Trustee shall pay the routine fees and expenses of the Fiscal Agent,
the Certificate Registrar, the Paying Agent, the Custodian and the
Authenticating Agent. The Trustee's rights to the Trustee Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Trustee's responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Master Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder,
including all fees of any sub-servicers retained by it. Except as otherwise
provided herein, the Trustee shall pay all expenses incurred by it, the Fiscal
Agent, the Certificate Registrar, the Paying Agent, the Custodian and the
Authenticating Agent in connection with their activities hereunder.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled with respect to each Specially Serviced Mortgage Loan to the
Special Servicing Fee, which shall be payable from amounts on deposit in the
Collection Account as set forth in Section 3.06(iii). The Special Servicer's
rights to the Special Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement. In addition, the Special
Servicer shall be entitled to receive, as additional servicing compensation, (i)
to the extent permitted by applicable law and the related Specially Serviced
Mortgaged Loans, any Assumption Fees and loan modification or forbearance fees
and (ii) any interest or other income earned on deposits in the REO Accounts.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) In addition to the Special Servicing Fees provided for in this
Agreement, and not in lieu thereof, the Special Servicer shall be entitled to
the following fees and compensation:
(i) the Special Servicing Rehabilitation Fee; and
(ii) the Liquidation Fee payable out of the Liquidation Proceeds prior
to the deposit of the Net Liquidation Proceeds in the Collection
Account. However, no Liquidation Fee will be payable in
connection with, or out of, Liquidation Proceeds resulting from
the purchase of any Specially Serviced Mortgage Loan or REO
Property (i) by MSMC, or (ii) by the Master Servicer, the
Depositor or the Certificateholders pursuant to Section 2.03 or
Section 9.01.
(d) The Master Servicer, Special Servicer and Trustee shall be entitled to
reimbursement from the Trust Fund for the costs and expenses incurred by them in
the performance of their duties under this Agreement which are "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and
not by way of limitation, environmental assessments, Updated Appraisals and
appraisals in connection with foreclosure, the fees and expenses of any
administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.06(v).
(e) No provision of this Agreement or of the Certificates shall require the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent to expend
or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the exercise
of any of their rights or powers, if, in the good faith business judgment of the
Master Servicer, Special Servicer, Trustee or Fiscal Agent, as the case may be,
repayment of such funds would not be ultimately recoverable from late payments,
Net Insurance Proceeds, Net Liquidation Proceeds and other collections on or in
respect of the Mortgage Loans, or from adequate indemnity from other assets
comprising the Trust Fund against such risk or liability.
If the Master Servicer, the Special Servicer or the Trustee receives a
request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Master Servicer's, the Special Servicer's or
the Trustee's good faith business judgment require the assistance of Independent
legal counsel or other consultant to the Master Servicer, the Special Servicer
or the Trustee, the cost of which would not be an expense of the Trust Fund
hereunder, then the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall not be required to take any action in response to such
request or inquiry unless the Borrower or such Certificateholder or such other
Person, as applicable, makes arrangements for the payment of the Master
Servicer's, the Special Servicer's or Trustee's expenses associated with such
counsel (including, without limitation, posting an advance payment for such
expenses) satisfactory to the Master Servicer, the Special Servicer or the
Trustee, as the case may be, in its sole discretion. Unless such arrangements
have been made, the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall have no liability to any Person for the failure to respond to
such request or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account Statements.
(a) The Master Servicer shall deliver to the Trustee and the Fiscal Agent
(solely for the purposes of determining P&I Advances) no later than the fifth
Business Day prior to each Distribution Date a preliminary report containing the
information provided on the Master Servicer Remittance Report and by no later
than 1:00 p.m. New York City time on the second Business Day prior to each
Distribution Date, the Master Servicer Remittance Report with respect to the
related Distribution Date (which shall include, without limitation, the amount
of Available Funds for such related Collection Period) including a written
statement of anticipated P&I Advances for the related Distribution Date. The
Master Servicer's responsibilities under this Section 3.13(a) with respect to
REO Mortgage Loans shall be subject to the satisfaction of the Special
Servicer's obligations under Section 3.24.
(b) Not later than fifteen days after each Distribution Date, the Master
Servicer shall forward to the Trustee a statement prepared by the Master
Servicer setting forth the status of the Collection Account as of the close of
business on the related Distribution Date and showing the aggregate amount of
deposits into and withdrawals from the Collection Account of each category of
deposit specified in Section 3.05 and each category of withdrawal specified in
Section 3.06 since the preceding Distribution Date. The Trustee and its agents
and attorneys may at any time during normal business hours, upon reasonable
notice, inspect and copy the books, records and accounts of the Master Servicer
solely relating to the Mortgage Loans and the performance of its duties
hereunder.
(c) Subject to Section 8.01(b) hereof, the Trustee shall be entitled to
rely conclusively on and shall not be responsible for the content or accuracy of
any information provided to it by the Master Servicer or the Special Servicer
pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
The Master Servicer and the Special Servicer (the "reporting person") each
shall deliver to the Trustee, the Depositor and to the Rating Agencies on or
before April 15 of each year, beginning with April 15, 1998, an Officers'
Certificate stating, as to each signatory thereof, (i) that a review of the
activities of the reporting person during the preceding calendar year (or such
shorter period from the Closing Date to the end of the related calendar year)
and of its performance under this Agreement has been made under such officer's
supervision, (ii) that, to the best of such officer's knowledge, based on such
review, the reporting person has fulfilled all of its obligations under this
Agreement throughout such year (or such shorter period), or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer, the nature and status thereof and what action it proposes
to take with respect thereto, (iii) that, to the best of such officer's
knowledge, each sub-servicer has fulfilled its obligations under its
sub-servicing agreement in all material respects, or, if there has been a
material default in the fulfillment of such obligations, specifying each such
default known to such officer and the nature and status thereof, (iv) that it
has maintained an effective internal control system over the servicing of
mortgage loans including the Mortgage Loans and other loans, and (v) whether it
has received any notice regarding qualification, or challenging the status, of
the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC from the IRS or any other
governmental agency or body.
SECTION 3.15. Annual Independent Public Accountants' Servicing Report.
On or before April 15 of each year, beginning with April 15, 1998, the
Master Servicer and the Special Servicer (each, a "reporting person") at its own
expense shall cause a firm of nationally recognized Independent public
accountants (who may also render other services to the reporting person) which
is a member of the American Institute of Certified Public Accountants to furnish
a statement (an "Accountant's Statement") to the Trustee, to the effect that the
assertion of management of the Master Servicer or the Special Servicer that it
has maintained an effective internal control system over the servicing of
mortgage loans including the Mortgage Loans and other loans, for the preceding
calendar year (or shorter period from the Closing Date to the end of the related
calendar year) is fairly stated, based on an examination conducted substantially
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or the Audit Program for Mortgages serviced for FHLMC, except for exceptions and
errors as stated in such report.
SECTION 3.16. Access to Certain Documentation.
The Master Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the Master
Servicer or Special Servicer. Nothing in this Section 3.16 shall detract from
the obligation of the Master Servicer and Special Servicer to observe any
applicable law prohibiting disclosure of information with respect to the
Borrowers, and the failure of the Master Servicer and Special Servicer to
provide access as provided in this Section 3.16 as a result of such obligation
shall not constitute a breach of this Section 3.16.
SECTION 3.17. Title and Management of REO Properties.
(a) In the event that title to any Mortgaged Property is acquired for the
benefit of Certificateholders in foreclosure, by deed in lieu of foreclosure or
upon abandonment or reclamation from bankruptcy, the deed or certificate of sale
shall be taken in the name of the Trustee, or its nominee (which shall not
include the Master Servicer), or a separate trustee or co-trustee, on behalf of
the Trust Fund. The Special Servicer, on behalf of the Trust Fund, shall dispose
of any REO Property prior to the close of the third calendar year following the
year in which the Trust Fund acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code, unless (i) the Special Servicer on
behalf of the Lower-Tier REMIC has applied for an extension of such period
pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the
Special Servicer shall sell such REO Property within the applicable extension
period or (ii) the Special Servicer seeks and subsequently receives an Opinion
of Counsel (which opinion shall be an expense of the Trust Fund), addressed to
the Special Servicer and Trustee, to the effect that the holding by the Trust
Fund of such REO Property for an additional specified period will not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code) at any time that any
Certificate is outstanding, in which event such period shall be extended by such
additional specified period subject to any conditions set forth in such Opinion
of Counsel. The Special Servicer, on behalf of the Trust Fund, shall dispose of
any REO Property held by the Trust Fund prior to the last day of such period
(taking into account extensions) by which such REO Property is required to be
disposed of pursuant to the provisions of the immediately preceding sentence in
a manner provided under Section 3.18 hereof. The Special Servicer shall manage,
conserve, protect and operate each REO Property for the Certificateholders
solely for the purpose of its prompt disposition and sale in a manner which does
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a)).
(b) The Special Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with the
Servicing Standard and the terms of this Agreement, all on such terms and for
such period as the Special Servicer deems to be in the best interests of
Certificateholders, and, in connection therewith, the Special Servicer shall
only agree to the payment of management fees that are consistent with general
market standards or to terms that are more favorable to the Trust Fund.
Consistent with the foregoing, the Special Servicer shall cause or permit to be
earned with respect to such REO Property any "net income from foreclosure
property," within the meaning of Section 860G(c) of the Code, which is subject
to tax under the REMIC Provisions only if it has determined, and has so advised
the Trustee in writing, that the earning of such income on a net after-tax basis
could reasonably be expected to result in a greater recovery on behalf of
Certificateholders than an alternative method of operation or rental of such REO
Property that would not be subject to such a tax. The Special Servicer shall
segregate and hold all revenues received by it with respect to any REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to any REO Property a segregated custodial account (each,
an "REO Account"), each of which shall be an Eligible Account and shall be
entitled "[Special Servicer], in trust for LaSalle National Bank, as Trustee, in
trust for Holders of Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1, REO Account." The Special Servicer
shall be entitled to withdraw for its account any interest or investment income
earned on funds deposited in an REO Account to the extent provided in Section
3.07(b). The Special Servicer shall deposit or cause to be deposited in the REO
Account within one Business Day after receipt all revenues received by it with
respect to any REO Property (other than Liquidation Proceeds, which shall be
remitted pursuant to Section 3.18(e) to the Collection Account), and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of such REO Property and for other Property Protection Expenses with
respect to such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO
Property;
(ii) all real estate taxes and assessments in respect of any REO
Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any REO Property;
and
(iv) any taxes imposed on the Upper Tier REMIC or Lower-Tier REMIC in
respect of net income from foreclosure property in accordance
with Section 4.05.
To the extent that such REO Proceeds are insufficient for the purposes set
forth in clauses (i) through (iii) above and the Special Servicer has provided
written notice of such shortfall to the Master Servicer at least five Business
Days prior to the date that such amounts are due, the Master Servicer shall
advance the amount of such shortfall unless the Master Servicer determines, in
its good faith judgment, that such Advance would be a Nonrecoverable Advance. If
the Master Servicer does not make any such Advance in violation of the
immediately preceding sentence, the Trustee shall make such Advance; and if the
Trustee fails to make any such Advance, the Fiscal Agent shall make such
Advance, unless in either case, the Trustee or the Fiscal Agent determines that
such Advance would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent
shall be entitled to rely, conclusively, on any determination by the Master
Servicer that an Advance, if made, would be a Nonrecoverable Advance. The
Trustee and the Fiscal Agent, in determining whether or not a proposed Advance
would be a Nonrecoverable Advance, shall be subject to the standards applicable
to the Master Servicer hereunder. The Master Servicer, the Trustee or the Fiscal
Agent, as applicable, shall be entitled to reimbursement of such Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence, to the
extent set forth in Section 3.06. The Special Servicer shall withdraw from each
REO Account and remit to the Master Servicer for deposit into the Collection
Account on a monthly basis prior to the related Master Servicer Remittance Date
the Net REO Proceeds received or collected from each REO Property, except that
in determining the amount of such Net REO Proceeds, the Special Servicer may
retain in each REO Account reasonable reserves for repairs, replacements and
necessary capital improvements and other related expenses. Notwithstanding the
foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease, if the New Lease by its terms will give rise to any income
that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease,
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property, other
than the repair or maintenance thereof or the completion of a
building or other improvement thereon, and then only if more than
ten percent of the construction of such building or other
improvement was completed before default on the related Mortgage
Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate any REO
Property on any date more than 90 days after its date of
acquisition by the Trust Fund, unless such Person is an
Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code) at any
time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an Independent
Contractor, the fees and expenses of which shall be an expense of the Trust Fund
and payable out of REO Proceeds, for the operation and management of any REO
Property, within 90 days of the Trust Fund's acquisition thereof (unless the
Special Servicer shall have provided the Trustee with an Opinion of Counsel that
the operation and management of any REO Property other than through an
Independent Contractor shall not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Code Section 860G(a)(8)) (which
opinion shall be an expense of the Trust Fund), provided that:
(i) the terms and conditions of any such contract shall be reasonable
and customary for the area and type of property and shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and
expenses incurred in connection with the operation and management
of such REO Property, including those listed above, and remit all
related revenues (net of such costs and expenses) to the Special
Servicer as soon as practicable, but in no event later than
thirty days following the receipt thereof by such Independent
Contractor;
(iii) none of the provisions of this Section 3.17(b) relating to any
such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any
of its duties and obligations to the Trust Fund or the Trustee on
behalf of the Certificateholders with respect to the operation
and management of any such REO Property; and
(iv) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(c) When and as necessary, the Special Servicer shall send to the Trustee a
statement prepared by the Special Servicer setting forth the amount of net
income or net loss, as determined for federal income tax purposes, resulting
from the operation and management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
other amount not constituting Rents from Real Property in respect of, any REO
Property in accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties.
(a) With respect to any Specially Serviced Mortgage Loan or REO Property
which the Special Servicer has determined to sell in accordance with Section
3.10, the Special Servicer shall deliver to the Trustee an Officers' Certificate
to the effect that, pursuant to Section 3.10, the Special Servicer has
determined to sell such Specially Serviced Mortgage Loan or REO Property in
accordance with this Section 3.18. The Special Servicer may then offer to sell
to any Person any Specially Serviced Mortgage Loan which is in default or for
which default is reasonably foreseeable or any REO Property or, subject to the
following sentence, purchase any such Specially Serviced Mortgage Loan or REO
Property (in each case at the Repurchase Price therefor), but shall, in any
event, so offer to sell any REO Property no later than the time determined by
the Special Servicer to be sufficient to result in the sale of such REO Property
within the period specified in Section 3.17(a). The Special Servicer shall
deliver such Officers' Certificate and give the Trustee not less than five
Business Days' prior written notice of its intention to sell any Specially
Serviced Mortgage Loan or REO Property, in which case the Special Servicer shall
accept the highest offer received from any Person for any Specially Serviced
Mortgage Loan or any REO Property in an amount at least equal to the Repurchase
Price therefor or, at its option, if it has received no offer (of at least three
offers) at least equal to the Repurchase Price therefor, purchase the Specially
Serviced Mortgage Loan or REO Property at the Repurchase Price.
In the absence of any such offer or purchase by the Special Servicer, the
Special Servicer shall accept the highest offer received from any Person that is
determined by the Special Servicer to be a fair price, as determined in
accordance with Section 3.18(b), for such Specially Serviced Mortgage Loan or
REO Property, if the highest offeror is a Person other than an Interested
Person, or if such offer is determined to be a fair price by the Trustee in
accordance with Section 3.18(b), if the highest offeror is an Interested Person;
provided, that the Trustee shall be entitled to engage, at the expense of the
Trust Fund, an Independent appraiser to determine whether the highest offer is a
fair price and, further provided, that if the highest offeror is an Interested
Person such offer shall not be accepted if it is less than the Repurchase Price,
unless the Rating Agencies have confirmed, in writing, that such acceptance will
not, in itself, result in the qualification, downgrade or withdrawal of the then
current ratings assigned to the Certificates. Notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer or purchase any Specially Serviced Mortgage Loan or
any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest offer if the Special Servicer
determines, in accordance with the Servicing Standard, that rejection of such
offer would be in the best interests of the Certificateholders. In addition, the
Special Servicer may accept a lower offer if it determines, in accordance with
the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the terms
offered by the prospective buyer making the lower offer are more favorable),
provided that the offeror is not the Special Servicer or an Affiliate of the
Special Servicer.
In the event that the Special Servicer determines with respect to any REO
Property that the offers being made with respect thereto are not in the best
interests of the Certificateholders and that the end of the period referred to
in Section 3.17(a) with respect to such REO Property is approaching, the Special
Servicer shall seek an extension of such period in the manner described in
Section 3.17(a); provided, however, that the Special Servicer shall use its best
efforts, consistent with the Servicing Standard, to sell each Specially Serviced
Mortgage Loan and any REO Property prior to the Rated Final Distribution Date.
(b) In determining whether any offer received from an Interested Person
represents a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Trustee may conclusively rely on the opinion of an Independent
appraiser. In determining whether any offer constitutes a fair price for any
Specially Serviced Mortgage Loan or any REO Property, the Special Servicer (if
the highest offeror is not an Interested Person) or the Trustee shall take into
account, and any appraiser or other expert in real estate matters shall be
instructed to take into account, as applicable, among other factors, any Updated
Appraisal previously obtained, the period and amount of any delinquency on the
affected Specially Serviced Mortgage Loan, the physical (including
environmental) condition of the related Mortgaged Property or such REO Property,
the state of the local economy and the Trust Fund's obligation to dispose of any
REO Property within the time period specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special Servicer shall
act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Depositor, the Master Servicer, the Special
Servicer or the Trust Fund (except that any contract of sale and assignment and
conveyance documents may contain customary warranties of title, so long as the
only recourse for breach thereof is to the Trust Fund), and, if such sale is
consummated in accordance with the duties of the Special Servicer, the Master
Servicer, the Depositor, the Fiscal Agent and the Trustee pursuant to the terms
of this Agreement, no such Person who so performed shall have any liability to
the Trust Fund or any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer, if the offeror is not an Interested
Person (or the Trustee, if an Interested Person is an offeror).
(d) The Special Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with the IRS at the time and
in the manner required by the Code.
(e) The proceeds of any sale pursuant to this Section 3.18 after deduction
of the expenses of such sale incurred in connection therewith shall be promptly,
and in any event within one Business Day following receipt thereof, deposited in
the Collection Account in accordance with Section 3.05(a)(iv).
SECTION 3.19. Additional Obligations of the Master Servicer;
Inspections; Successor Manager.
(a) The Master Servicer (or, with respect to Specially Serviced Mortgage
Loans and REO Properties, the Special Servicer) shall inspect or cause to be
inspected each Mortgaged Property at such times and in such manner as are
consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property (i) with an Allocated Loan Amount of (A) $5,000,000 or more
at least once every 12 months and (B) less than $5,000,000 at least once every
24 months (provided, however, that at least 25% of the Mortgaged Properties with
an Allocated Loan Amount of less than $5,000,000 with respect to each Mortgage
Loan shall be inspected within the initial 12 months after the Closing Date), in
each case commencing in October 1998 (or at such lesser frequency as each Rating
Agency shall have confirmed in writing to the Master Servicer will not result in
a downgrade, qualification or withdrawal of the then current ratings assigned to
any Class of the Certificates) and (ii) if any Mortgage Loan (A) becomes a
Specially Serviced Mortgage Loan, (B) has a debt service coverage ratio
(calculated as provided in the related Loan Documents) of less than 1.0 for the
immediately preceding twelve-month period or (C) is delinquent for 60 days, the
related Mortgaged Property shall be inspected by the Master Servicer (or the
Special Servicer with respect to Specially Serviced Mortgage Loans) as soon as
practicable and thereafter at least every 12 months for so long as such
condition exists. The cost of any such inspection shall be borne by the Master
Servicer unless the related Mortgage Loan is a Specially Serviced Mortgage Loan,
in which case any out-of-pocket costs incurred with respect to such inspection
shall be treated as a Property Advance and borne by the Trust Fund.
(b) With respect to each Mortgage Loan, the Master Servicer and the Special
Servicer (with respect to Specially Serviced Mortgage Loans) shall enforce the
Trustee's rights with respect to the Manager or Managers under the related Loan
Documents and Management Agreement or Management Agreements. In the event the
Master Servicer or the Special Servicer (with respect to Specially Serviced
Mortgage Loans) is entitled to terminate or cause the related Borrower to
terminate the Manager or Managers, the Master Servicer or the Special Servicer,
as the case may be, shall promptly give notice of its right to terminate the
Manager or Managers to the Trustee (who shall copy the Certificateholders and
the Rating Agencies), the related Originator, the Master Servicer or Special
Servicer, as applicable, and the Depositor. After receipt of such notice, the
most subordinate Class of Certificates then outstanding shall have the right to
recommend termination of the Manager or Managers, and if so, to recommend a
Successor Manager or Managers (meeting the requirements set forth below).
Certificateholders representing Voting Rights of greater than 50% of such
subordinate Class of Certificates will have ten Business Days from the receipt
of such notice to respond to such notice. Upon receipt of a recommendation to
terminate the Manager or Managers and appoint a Successor Manager or Managers,
the Master Servicer or the Special Servicer, as the case may be, shall give
notice of such recommendation to the Trustee (who shall copy the
Certificateholders), and the Master Servicer or Special Servicer, as applicable,
shall effect such recommendation unless: (i) within five Business Days of the
receipt of notice of such recommendation, Certificateholders representing Voting
Rights of greater than 50% of any Class of Certificates then outstanding which
was assigned a rating by any Rating Agency on the Closing Date reject such
proposed Successor Manager or Managers in which case the Master Servicer or the
Special Servicer, as the case may be, shall procure a Successor Manager or
Managers as set forth in the following sentence; or (ii) the Master Servicer or
the Special Servicer, as the case may be, determines that effecting such
recommendation to terminate is not consistent with the Servicing Standard, and
therefore, the Master Servicer or the Special Servicer, as the case may be,
elects not to effect such recommendation. If the Master Servicer or the Special
Servicer, as the case may be, does not receive a required response (or if the
response received is inconsistent) and the Master Servicer or Special Servicer,
as the case may be, determines it is consistent with the Servicing Standard to
terminate the Manager or Managers or in the event the Manager or Managers is
otherwise terminated or resigns under the related Mortgage or Management
Agreement, the Master Servicer or the Special Servicer, as the case may be,
shall use its best efforts to retain a Successor Manager or Managers (or the
recommended Successor Manager or Managers, if any) on terms substantially
similar to the Management Agreement or, failing that, on terms as favorable to
the Trust Fund as can reasonably be obtained. A "Successor Manager" shall be
reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be, and a professional management corporation or business entity which
(i) manages, and is experienced in managing, other comparable commercial
properties, (ii) will not result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates by each Rating Agency, as
confirmed in writing by each Rating Agency, and (iii) otherwise satisfies any
criteria set forth in the Mortgage and related Loan Documents.
SECTION 3.20. Reports to the Securities and Exchange Commission;
Available Information.
(a) The Trustee shall prepare, sign, and electronically file on behalf of
the Depositor, and at the expense of the Depositor, any and all Exchange Act
Reports as may be required with respect to the Certificates pursuant to this
Agreement; provided, however, that the Depositor shall prepare, sign and file
with the Commission the initial Form 8-K relating to the Trust Fund. In the
event the Depositor notifies the Trustee, the Master Servicer and the Special
Servicer in writing as to any change in the Exchange Act reporting requirements
applicable to the Certificates, the Trustee, the Special Servicer and the Master
Servicer shall conform the reporting obligations as set forth herein to any such
changes as notified by the Depositor. The Master Servicer and the Special
Servicer, to the extent such information has been received by the Master
Servicer or Special Servicer, as applicable, agree to provide such information
to the Trustee and such entity as is designated by the Depositor pursuant to
Section 3.20(f) in a timely fashion as may be requested by the Trustee in
connection with such Exchange Act Reports, so that such Exchange Act Reports may
be timely filed by the Trustee. Manually-signed copies of each Exchange Act
Report shall be delivered to the Depositor to the attention of the Secretary (or
such other Persons as are designated in writing by the Depositor), with a copy
to the Trustee.
On a monthly basis prior to the filing on behalf of the Trust Fund of a
Form 15, the Trustee will file on behalf of the Trust Fund within 15 days after
the Distribution Date a Form 8-K that includes the Monthly Distribution
Statement.
On a quarterly basis prior to the filing on behalf of the Trust Fund, and
effectiveness, of a Form 15, the Trustee will file, to the extent the Trustee
receives the information set forth below in electronic format in accordance with
Section 3.20(f), within 45 days after the end of the relevant Borrower's fiscal
quarter a Financial Report for those Borrowers which represent 10% or more of
the aggregate Stated Principal Balance of the Mortgage Loans (on the date
hereof, the 605 Third Avenue Loan, and the Edens & Avant Pool Loan). The
quarterly Financial Report with respect to (i) those Mortgage Loans that
represent 20% or more of the aggregate Stated Principal Balance of the Mortgage
Loans (on the date hereof no Mortgage Loan represents 20% or more of the
aggregate Stated Principal Balance of the Mortgage Loans) shall consist of
unaudited financial statements with respect to the Mortgaged Properties securing
such Mortgage Loans, and (ii) those Mortgage Loans that represent 10% but less
than 20% of the aggregate Stated Principal Balance of the Mortgage Loans (on the
date hereof, the 605 Third Avenue Loan and the Edens & Avant Loan) shall consist
of summarized quarterly financial information (substantially in the form set
forth in Exhibit A-1 and Exhibit A-2, respectively, to the Depositor's
Prospectus Supplement dated October 9, 1997 relating to the Certificates) as
described in Rule 1.02(bb) of Regulation S-X with respect to the Mortgaged
Properties securing such Mortgage Loan.
On an annual basis prior to the filing on behalf of the Trust Fund, and
effectiveness, of a Form 15, the Trustee will file, to the extent the Trustee
receives the information set forth below in electronic format in accordance with
Section 3.20(f), within 90 days after the end of the relevant Borrower's fiscal
year end a Financial Report for those Borrowers which represent 10% or more of
the aggregate Stated Principal Balance of the Mortgage Loans (on the date
hereof, the 605 Third Avenue Loan and the Edens & Avant Loan). The annual
Financial Report with respect to (i) those Mortgage Loans that represent 20% or
more of the aggregate Stated Principal Balance of the Mortgage Loans (on the
date hereof, no Mortgage Loan represents 20% or more of the aggregate Stated
Principal Balance of the Mortgage Loans) shall consist of audited financial
statements with respect to the Mortgaged Properties securing such Mortgage
Loans, and (ii) those Mortgage Loans that represent 10% but less than 20% of the
aggregate Stated Principal Balance of the Mortgage Loans (on the date hereof,
the 605 Third Avenue Loan and the Edens & Avant Loan) shall consist of
summarized annual financial information (substantially in the form set forth in
Exhibit A-1 and Exhibit A-2, respectively, to the Depositor's Prospectus
Supplement dated October 9, 1997 relating to the Certificates) as described in
Rule 1.02(bb) of Regulation S-X with respect to the Mortgaged Properties
securing such Mortgage Loan.
The Master Servicer, each Special Servicer and the Trustee hereby agree to
cooperate with the Borrowers and their accountants in obtaining any consents of
accountants that are required to be filed with any financial statements being
filed on a Form 10-K or Form 8-K.
If information for any Financial Report is incomplete by the date on which
required to be filed, the Trustee shall prepare and execute a Form 12b-25 and
shall deliver a manually signed version of such form to the Depositor as
provided above.
None of the Master Servicer, the Special Servicer and the Trustee shall (i)
file a Form ID with respect to the Depositor or (ii) cause the Trust Fund to
stop filing reports, statements and information with the Commission pursuant to
this Section unless directed to do so by the Depositor or the continued
reporting is prohibited under the Exchange Act or any regulations thereunder.
Promptly following the end of each calendar year, commencing December 31, 1997,
the Trustee shall notify the Depositor when the Certificates are held of record
by less than 300 persons within the meaning of Section 15(d) of the Exchange
Act. Upon receipt of such notice from the Trustee, the Depositor shall file a
Form 15 within 15 days following the end of the fiscal year in which such notice
was delivered, to the extent that the filing of such Form 15 is, in the
Depositor's opinion, consistent with the Exchange Act reporting obligations of
the Depositor.
The Trustee shall, at the written direction of the Depositor, solicit any
and all proxies of the Certificateholders whenever such proxies are required to
be solicited pursuant to the Exchange Act.
(b) The Master Servicer, prior to the filing on behalf of the Trust Fund,
and effectiveness, of a Form 15, shall promptly prepare and provide to the
Trustee a report (each, a "Special Event Report") reporting (i) any notice from
a Borrower or insurance company, or any knowledge otherwise obtained, regarding
an upcoming voluntary or involuntary prepayment (including that resulting from a
casualty or condemnation) or defeasance of all or part of the related Mortgage
Loan (provided that a request by a Borrower or other Person for a quotation of
the amount necessary to satisfy all obligations with respect to a Mortgage Loan
shall not, in and of itself, be deemed to be such notice); (ii) any imminent or
actual monetary default or other default on a Mortgage Loan the results of which
the Master Servicer, after consultation with the Special Servicer, reasonably
believes is likely to result in the acceleration of the indebtedness due under
such Mortgage Loan; (iii) the results of any property inspection of which the
Master Servicer has knowledge and which has revealed any material damage or
deterioration or the presence of any environmental condition with respect to any
Mortgaged Property; (iv) any notice from a Borrower, or any knowledge otherwise
obtained, regarding any litigation involving such Borrower or any related
Mortgaged Property which the Master Servicer reasonably believes is likely to
have an adverse effect on the Mortgaged Property or the ability of such Borrower
to pay the amounts due under the related Mortgage Loan; (v) any notice received
from a Borrower, Manager or Managers or tenant of a Mortgaged Property, or any
knowledge otherwise obtained, regarding the material default of such tenant
under the terms of its lease or early termination by either the tenant or the
Borrower of such lease, the bankruptcy of such tenant or its direct or indirect
parent, the loss of a license or permit relating to the Mortgaged Property or
other material adverse tenant activity; (vi) any amendment, modification or
waiver of a material provision of a Mortgage Loan of which the Master Servicer
has knowledge; and (vii) any event of which the Master Servicer has actual
knowledge (other than an event covered by clause (i)) which would result in the
release of any part of the Mortgaged Property; provided, however, that in the
event that the Master Servicer after consulting with the Depositor and the
Special Servicer determines in its good faith judgment that any of the preceding
items will not materially affect the interests of the Certificateholders, the
Master Servicer shall omit such item from the reporting obligation described
above.
With respect to any Specially Serviced Mortgage Loan or any REO Property,
the Special Servicer shall report to the Master Servicer any of the foregoing
events promptly upon the Special Servicer having knowledge of such event. In
addition, in connection with their servicing of the Mortgage Loans, the Master
Servicer and the Special Servicer shall provide to each other and to the Trustee
written notice of any other known event with respect to a Mortgage Loan or REO
Property that the Master Servicer or the Special Servicer, respectively,
determines would have a material adverse effect on such Mortgage Loan or REO
Property, which notice shall include an explanation as to the reason for such
material adverse effect.
(c) The Master Servicer shall collect on a monthly basis all information
required pursuant to the Mortgage Loans. The Master Servicer shall from time to
time contact the Borrowers regarding the delivery of financial information
required by the Loan Documents commencing at least 15 days prior to the date on
which each Borrower is obligated to provide the Master Servicer with quarterly
and annual financial statements or reports so that such statements and reports
will be delivered to the Master Servicer in a timely fashion. The Master
Servicer will cause such information to be provided to the Trustee in such
format as the Trustee may reasonably request to enable the Trustee to comply
with the Exchange Act reporting requirements specifically set forth in this
Section 3.20. Promptly following the end of each calendar quarter and the end of
each calendar year, the Master Servicer shall prepare a Summary Report in the
form of Exhibit H based on information provided to the Master Servicer by the
Borrowers without modification, interpretation or analysis (except that the
Master Servicer will use its best efforts to isolate management fees and funded
reserves from Borrower reported expenses, if necessary). The Master Servicer
shall deliver a copy of each Summary Report to the Trustee. None of the Master
Servicer, the Special Servicer and the Trustee shall be responsible for the
completeness or accuracy of such information provided by the Borrowers (except
that the Master Servicer will use its best efforts to correct patent errors).
(d) The Master Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement
that provides that such information shall be used solely for purposes of
evaluating the investment characteristics of the Certificates be executed to the
extent the Master Servicer deems such action to be necessary or appropriate),
also make available any additional information relating to the Mortgage Loans,
the Mortgaged Properties or the Borrowers, for review by the Depositor, the
Rating Agencies, the Certificateholders and any other Persons to whom the Master
Servicer believes such disclosure is appropriate, in each case except to the
extent doing so is prohibited by applicable law or by any related Loan Documents
related to a Mortgage Loan. Consistent with the foregoing, the Master Servicer
may, at its discretion, at the request of any of the Depositor, the Rating
Agencies, the Trustee or any Certificateholder, but is not required to, prepare
from information delivered by the Borrowers pursuant to any of the Loan
Documents one or more reports in addition to the reports and information that
the Master Servicer is required to furnish pursuant to this Agreement and may
charge for such service a fee to any Person requesting a copy of any such
additional report. The Master Servicer may, but is not required to, make
information which is otherwise available to the public available on the
Internet.
(e) The Trustee shall deliver a copy of each Summary Report and Annual
Compliance Report to each Rating Agency and, upon request, to each
Certificateholder and Beneficial Owner (provided that each Certificateholder and
Beneficial Owner may only make one request per month and will be required to pay
any expenses incurred by the Trustee in connection with the provision of such
information). The Trustee shall also deliver a copy of each Special Event Report
to each Rating Agency, Certificateholder and, if known, Beneficial Owner within
one Business Day of receipt. The Trustee shall so deliver the foregoing
information and reports and shall file such Summary Report and Annual Compliance
Report annually on Form 10-K and shall file such Special Event Reports on Form
8-K promptly upon the occurrence of the applicable event, in each case unless
the Trust Fund is no longer filing Exchange Act Reports. The Trustee shall also
make available at its offices primarily responsible for administration of the
Trust Fund, during normal business hours, or send to the requesting party at the
expense of each such requesting party (other than the Rating Agencies) for
review by the Depositor, the Rating Agencies, any Certificateholder, any Person
identified to the Trustee by a Certificateholder as a prospective transferee of
a Certificate and any other Persons to whom the Trustee believes such disclosure
is appropriate, the following items: (i) this Agreement, (ii) all Monthly
Distribution Statements, (iii) all Annual Compliance Reports, (iv) all Summary
Reports and (v) all Special Event Reports.
The Master Servicer and the Special Servicer shall each make available at
its offices during normal business hours, or send to the requesting party at the
expense of each such requesting party (other than the Rating Agencies) for
review by the Depositor, the Trustee, the Rating Agencies, any
Certificateholder, any Person identified to the Master Servicer or the Special
Servicer, as applicable, by a Certificateholder as a prospective transferee of a
Certificate and any other Persons to whom the Master Servicer or the Special
Servicer, as applicable, believes such disclosure to be appropriate the
following items: (i) all financial statements, occupancy information, rent rolls
and similar information received by the Master Servicer or the Special Servicer,
as applicable, from each Borrower, (ii) the inspection reports prepared by or on
behalf of the Master Servicer or the Special Servicer, as applicable, in
connection with the property inspections pursuant to Section 3.19, (iii) any and
all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Master Servicer or the Special Servicer, as applicable, and
(iv) any and all officer's certificates and other evidence delivered to the
Trustee and the Depositor to support the Master Servicer's determination that
any Advance was, or if made would be, a Nonrecoverable Advance. The Master
Servicer may require that such party execute a reasonable confidentiality
agreement customary in the industry (and approved by the Depositor) with respect
to such information.
Copies of any and all of the foregoing items shall be available from the
Master Servicer or the Special Servicer, as applicable, or the Trustee, as
applicable, upon request at the requesting party's expense.
(f) The Depositor shall designate, and pay the expenses of, a financial
printer or other entity (which may be the Trustee) to prepare the materials
required to be filed pursuant to this Section 3.20 for filing via the EDGAR
system, and the Master Servicer and Special Servicer shall each cooperate fully
with such entity and the Master Servicer and the Special Servicer shall provide
the information required hereunder, to the extent made available by the related
Borrowers, in a timely manner in order to allow the Trustee to file such
materials at the times required hereunder. In the event the Trustee does not
receive in electronic format Borrower information it receives in hard copy
format within two Business Days after it receives the information in hard copy,
the Trustee shall promptly notify the Depositor by telephone or by facsimile
transmission.
(g) Notwithstanding any other provision of this Section 3.20, at least
three Business Days prior to the date upon which any materials are required to
be filed with the Commission pursuant to the terms hereof, the Trustee shall
provide a copy of such filing, in hard copy form (or such electronic format
acceptable to the Depositor), to the Depositor (with a copy to the Underwriter).
The Depositor shall review such filing and make any necessary corrections to
such filing or direct the Trustee not to make such filing prior to the date such
materials are required to be filed pursuant to the terms hereof.
(h) The Trustee shall indemnify and hold the Depositor harmless against any
loss, liability or expense incurred as the direct result of the Trustee's
negligent failure to file any Exchange Act Report specifically identified in
this Section 3.20 or in writing by the Depositor in the form and at the time
required pursuant to the terms of this Section 3.20; provided that any failure
on the part of the Master Servicer, the Special Servicer or the Depositor to
timely provide the Trustee in the correct form the information required by the
Trustee to file such Exchange Act Reports shall not constitute negligence on the
part of the Trustee. Furthermore, the Trustee shall have no liability with
regards to the accuracy of the information included in such Exchange Act
Reports.
SECTION 3.21. Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts.
The Master Servicer shall administer each Lock-Box Account, Cash Collateral
Account, Escrow Account and Reserve Account in accordance with the related
Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box
Agreement, if any, and administer any letters of credit pursuant to the related
letter of credit agreements and the Loan Documents.
SECTION 3.22. Property Advances.
(a) The Master Servicer (or, to the extent provided in Section 3.22(b), the
Trustee or the Fiscal Agent or, to the extent specifically provided for in this
Agreement, the Special Servicer) shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof.
For purposes of distributions to Certificateholders and compensation to the
Master Servicer, Special Servicer or Trustee, Property Advances shall not be
considered to increase the principal balance of any Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so provide.
(b) The Master Servicer shall notify the Trustee and the Fiscal Agent, and
the Special Servicer shall notify the Master Servicer, the Trustee and the
Fiscal Agent, in writing promptly upon, and in any event within one Business Day
after, becoming aware that it will be unable to make any Property Advance
required to be made pursuant to the terms hereof, and in connection therewith,
shall set forth in such notice the amount of such Property Advance, the Person
to whom it will be paid, and the circumstances and purpose of such Property
Advance, and shall set forth therein information and instructions for the
payment of such Property Advance, and, on the date specified in such notice for
the payment of such Property Advance, or, if the date for payment has passed or
if no such date is specified, then within five Business Days following such
notice, the Trustee (or with respect to a Property Advance required to be made
by the Special Servicer, the Master Servicer, and if the Master Servicer so
fails, the Trustee), subject to the provisions of Section 3.22(c), shall pay the
amount of such Property Advance in accordance with such information and
instructions. If the Trustee fails to make any Property Advance it is required
to make under this Section 3.22, the Fiscal Agent, subject to the provisions of
Section 3.22(c), shall make such Advance on the same day the Trustee was
required to make such Property Advance and, thereby, the Trustee shall not be in
default under this Agreement.
(c) None of the Master Servicer, the Trustee, the Fiscal Agent or the
Special Servicer shall be obligated to make a Property Advance as to any
Mortgage Loan or REO Property if the Master Servicer, the Trustee, the Fiscal
Agent or the Special Servicer, as applicable, determines that such Advance will
be a Nonrecoverable Advance. The Trustee and the Fiscal Agent (or the Master
Servicer with respect to a Property Advance required to be made by the Special
Servicer) shall be entitled to rely, conclusively, on any determination by the
Master Servicer or Special Servicer, as applicable, that a Property Advance, if
made, would be a Nonrecoverable Advance. The Trustee, the Fiscal Agent and the
Special Servicer, in determining whether or not a Property Advance previously
made is, or a proposed Property Advance, if made, would be, a Nonrecoverable
Advance shall be subject to the standards applicable to the Master Servicer
hereunder.
(d) The Master Servicer, the Special Servicer, the Trustee and/or the
Fiscal Agent, as applicable, shall be entitled to the reimbursement of Property
Advances made by any of them to the extent permitted pursuant to Section
3.06(ii) of this Agreement, together with any related Advance Interest Amount in
respect of such Property Advances, and the Master Servicer and Special Servicer
hereby covenant and agree to promptly seek and effect the reimbursement of such
Property Advances from the related Borrowers to the extent permitted by
applicable law and the related Loan Documents.
SECTION 3.23. Appointment of Special Servicer.
(a) GMAC Commercial Mortgage Corporation is hereby appointed as the initial
Special Servicer to service each of the Mortgage Loans.
(b) Certificateholders representing greater than 50% of the Percentage
Interests of the most subordinate Class of Certificates outstanding at any time
shall be entitled to remove the Special Servicer with or without cause and to
appoint a successor Special Servicer entitled to the same servicing compensation
as its predecessor, provided that each Rating Agency confirms to the Trustee in
writing that such appointment, in and of itself, would not have caused a
downgrade, qualification or withdrawal of the then current ratings assigned to
any Class of Certificates. If there is a Special Servicer Event of Default, the
Special Servicer shall be removed and replaced pursuant to Sections 7.01(c) and
7.02. The Special Servicer may be removed by Certificateholders as aforesaid
with respect to only one or more Mortgage Loans and remain the Special Servicer
with respect to the remainder of the Mortgage Loans; provided that a successor
Special Servicer is appointed, in respect of the Mortgage Loans that the Special
Servicer would no longer be servicing, as provided in this Section 3.23. The
Holders of the most subordinate Class of Certificates then outstanding shall
then appoint a successor Special Servicer in accordance with this Section 3.23.
Notwithstanding the foregoing, if the Master Servicer is acting as the Special
Servicer hereunder with respect to a Mortgage Loan, and the Master Servicer
acquires any Affiliate Loan related to such Mortgage Loan, the Master Servicer
shall promptly resign as Special Servicer hereunder with respect to such
Mortgage Loan in accordance with Section 6.04 hereof, and if the Master Servicer
fails to promptly resign, the Trustee shall terminate the Master Servicer as
Special Servicer with respect to such Mortgage Loan, in accordance with the
provisions set forth in Section 7.01 and Section 7.02.
(c) The appointment of any such successor Special Servicer, shall not
relieve the Master Servicer, the Trustee or the Fiscal Agent of their respective
obligations to make Advances as set forth herein; provided, however, the initial
Special Servicer specified in Section 3.23(a) above shall not be liable for any
actions or any inaction of such successor Special Servicer. Any termination fee
payable to the terminated Special Servicer (and it is acknowledged that there is
no such fee payable in the event of a termination of the Master Servicer as
Special Servicer following the occurrence of an event of default hereunder)
shall be paid by the Certificateholders so terminating the Special Servicer and
shall not in any event be an expense of the Trust Fund.
(d) No termination of the Special Servicer and appointment of a successor
Special Servicer shall be effective until the successor Special Servicer has
assumed all of its responsibilities, duties and liabilities hereunder pursuant
to a writing satisfactory to the Trustee and each Rating Agency, as evidenced in
writing and the Trustee has received written confirmation from each Rating
Agency that such appointment would not cause any Rating Agency to qualify,
withdraw or downgrade any of its then current ratings on any Certificates.
(e) Any successor Special Servicer shall be deemed to make the
representations and warranties provided for in Section 2.04(a) mutatis mutandis
as of the date of its succession.
(f) Notwithstanding any of the foregoing provisions, for the purposes of
determining the requisite Percentage Interests pursuant to Section 3.23(b), or
the requisite Voting Rights pursuant to Section 7.01(b) and Section 7.02, any
Certificate owned by a Person that is, or whose Affiliate is, also the lender of
any debt of any Affiliate of the Borrowers shall be deemed not to be outstanding
and the Percentage Interests or Voting Rights represented by such Certificate
shall not be taken into account in making such determination.
SECTION 3.24. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan has become a Specially Serviced
Mortgage Loan, the Master Servicer shall immediately give notice thereof to the
Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents (but excluding the original documents
constituting the Mortgage File) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its duties hereunder with respect thereto without acting through a
sub-servicer. The Master Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the date such Mortgage Loan
became a Specially Serviced Mortgage Loan and in any event shall continue to act
as Master Servicer and administrator of such Mortgage Loan until the Special
Servicer has commenced the servicing of such Mortgage Loan, which shall occur
upon the receipt by the Special Servicer of the information, documents and
records referred to in the preceding sentence. With respect to each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan, the Master Servicer shall
instruct the related Borrower to continue to remit all payments in respect of
such Mortgage Loan to the Master Servicer. If GMAC Commercial Mortgage
Corporation ceases to be the Master Servicer, the successor Master Servicer, may
agree that, notwithstanding the preceding sentence, with respect to each
Mortgage Loan that became a Specially Serviced Mortgage Loan, the Master
Servicer shall instruct the related Borrower to remit all payments in respect of
such Mortgage Loan to the Special Servicer, provided that the payee in respect
of such payments shall remain the Master Servicer. The Special Servicer shall
remit to the Master Servicer any such payments received by it pursuant to the
preceding sentence within one Business Day of receipt. The Master Servicer shall
forward any notices it would otherwise send to the Borrower of a Specially
Serviced Mortgage Loan to the Special Servicer who shall send such notices to
the related Borrower.
Upon determining that no event has occurred and is continuing with respect
to a Mortgage Loan that causes such Mortgage Loan to be a Specially Serviced
Mortgage Loan, the Special Servicer shall immediately give notice thereof to the
Master Servicer and, upon giving such notice, such Mortgage Loan shall cease to
be a Specially Serviced Mortgage Loan in accordance with the first proviso of
the definition of Specially Serviced Mortgage Loans, the Special Servicer's
obligation to service such Mortgage Loan shall terminate and the obligations of
the Master Servicer to service and administer such Mortgage Loan as a Mortgage
Loan that is not a Specially Serviced Mortgage Loan shall resume. In addition,
if the related Borrower has been instructed, pursuant to the preceding
paragraph, to make payments to the Special Servicer, upon such determination,
the Special Servicer shall instruct the related Borrower to remit all payments
in respect of such Mortgage Loan directly to the Master Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the Special Servicer
shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Master Servicer as well as copies of any
analysis or internal review prepared by or for the benefit of the Special
Servicer.
(c) Not later than the Business Day preceding each date on which the Master
Servicer is required to furnish a report under Section 3.13(a) to the Trustee,
the Special Servicer shall deliver to the Master Servicer a written statement
describing, on a Mortgage Loan by Mortgage Loan basis, (i) the amount of all
payments on account of interest received on each Specially Serviced Mortgage
Loan, the amount of all payments on account of principal, including Principal
Prepayments, on each Specially Serviced Mortgage Loan, the amount of Net
Insurance Proceeds and Net Liquidation Proceeds received with respect to each
Specially Serviced Mortgage Loan, and the amount of net income or net loss, as
determined from management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
rental income that does not constitute Rents from Real Property with respect to
the REO Property relating to each applicable Specially Serviced Mortgage Loan,
in each case in accordance with Section 3.17 and (ii) such additional
information relating to the Specially Serviced Mortgage Loans as the Master
Servicer or Trustee reasonably requests to enable it to perform its duties under
this Agreement.
(d) Notwithstanding the provisions of the preceding subsection (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and shall provide the Special Servicer
with any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Master
Servicer with any information reasonably required by the Master Servicer to
perform its duties under this Agreement.
SECTION 3.25. Limitations on and Authorizations of the Master Servicer and
Special Servicer with Respect to Specific Mortgage Loans.
(a) With respect to any Mortgage Loan which permits the related Borrower,
with the consent or grant of a waiver by mortgagee, to incur additional
indebtedness or to amend or modify the related Borrower's organizational
documents, then the Master Servicer or the Special Servicer, as the case may be,
may only consent to either such action, or grant a waiver with respect thereto,
if the Master Servicer or the Special Servicer determines that such consent or
waiver is likely to result in a greater recovery on a present value basis
(discounted at the related Mortgage Rate) than would not consenting to such
action and the Master Servicer or the Special Servicer first obtains written
confirmation from each Rating Agency that such consent or grant of a waiver
would not, in and of itself, result in a downgrade, qualification or withdrawal
of any of the then current ratings assigned to the Certificates. Any such
consent or waiver shall also satisfy the criteria set forth in Section 3.09(b),
to the extent applicable.
(b) The Depositor shall receive bills from the Rating Agencies for
monitoring, review and surveillance of the Certificates and the Mortgage Loans
and the Depositor shall pay such amounts in a timely manner. In the event that
Rating Agency confirmation is required in connection with any exercise of rights
by the Master Servicer or the Special Servicer, as applicable, under any
Mortgage Loan, the Master Servicer or Special Servicer, as the case may be,
shall use its reasonable best efforts to cause the related Borrower to pay any
fee required by the applicable Rating Agency for such confirmation. If the
related Borrower does not pay such fee, and the Mortgage Loan is a Specially
Serviced Mortgage Loan, such fee shall be paid by the Master Servicer or Special
Servicer, as the case may be, as an Advance and shall be borne by the Trust
Fund. If the Borrower does not pay such fee, and the Mortgage Loan is not a
Specially Serviced Mortgage Loan, the Depositor shall pay such fee.
Notwithstanding the reimbursement of any such amounts by the Trust Fund, the
Master Servicer and the Special Servicer shall, to the extent consistent with
the Servicing Standard, continue to endeavor to collect any such amounts from
the related Borrower.
(c) Prior to taking any enforcement action with respect to a Mortgage Loan
secured in whole or in part by Mortgaged Properties located in a "one-action"
state, the Master Servicer or Special Servicer, as applicable, shall consult
with legal counsel admitted to practice in the relevant jurisdiction, the fees
and expenses of which shall be an expense of the Trust Fund.
(d) With respect to all Mortgage Loans that provide that the holder of the
related Note may apply the monthly payment against principal, interest and any
other sums due in such order as the holder shall determine, the Master Servicer
shall apply such Monthly Payment to interest (other than Deferred Interest or
Default Interest) under the related Mortgage Loan prior to application to
principal or any other sums due.
(e) With respect to each Mortgage Loan, neither the Master Servicer (nor
the Special Servicer (including in its capacity as a Certificateholder, if
applicable), shall take any enforcement action with respect to the payment of
Deferred Interest or principal in excess of the principal component of the
constant Monthly Payment, other than requests for collection, until the Maturity
Date of the related Mortgage Loan; provided, that the Master Servicer or Special
Servicer, as the case may be, may take action to enforce the Trust Fund's right
to apply excess cash flow to principal in accordance with the terms of the Loan
Documents.
(f) The obligations of the Master Servicer and Special Servicer set forth
in this Section 3.25 shall be subject to the operative documents with respect to
the related Mortgage Loan, and the failure or inability of the related Borrower
to comply with the Master Servicer's or the Special Servicer's direction shall
not be deemed to be an Event of Default of the Master Servicer or the Special
Servicer hereunder.
(g) The Master Servicer or the Special Servicer, as applicable, shall be
permitted, in its discretion, to waive all or any accrued Deferred Interest if,
prior to the related Maturity Date, the related Borrower has requested the right
to prepay the Mortgage Loan in full together with all payments required by the
Mortgage Loan in connection with such prepayment except for all or a portion of
accrued Deferred Interest, provided that the Master Servicer or the Special
Servicer, as applicable, determines (taking into account the value and revenues
of the related Mortgaged Property and the ability of the Borrower to pay the
Mortgage Loan (including such Deferred Interest)) that (1) in the absence of the
waiver of such Deferred Interest, there is a reasonable likelihood that the
Mortgage Loan will not be paid in full on the related Maturity Date and (2) the
waiver of the right to such accrued Deferred Interest is reasonably likely to
produce a larger (and not equivalent) payment in the aggregate to
Certificateholders on a present value basis than a refusal to waive the right to
such Deferred Interest. The Master Servicer shall have no liability to the Trust
Fund, the Certificateholders or any other person so long as such determination
is based on such criteria. In no event shall such waiver of such Deferred
Interest be effective prior to the date of actual prepayment in full (other than
such waived Deferred Interest), and such waiver shall in no event be effective
if such prepayment is not made.
(h) The Master Servicer and the Depositor shall cooperate and send written
notice to each Borrower and the related Manager or Managers and clearing bank or
bank sweeping monies to a Cash Collateral Account that, if applicable, the
Master Servicer has been appointed as the "Designee" or agent of the "Lender"
(or equivalent terminology) under any related Lock-Box Agreement and/or Cash
Collateral Account Agreement.
(i) For any Mortgage Loan with respect to which, under the terms of the
related Loan Documents, the mortgagee may, in its discretion, apply Insurance
Proceeds, condemnation awards or escrowed funds to the prepayment of such loan
prior to the expiration of the related Lock-out Period, the Master Servicer or
Special Servicer, as applicable, may only require such a prepayment if the
Master Servicer or Special Servicer, as applicable, has determined in accordance
with the Servicing Standard that such prepayment is in the best interests of the
Certificateholders.
(j) The Master Servicer or the Special Servicer, as applicable, shall not
consent to the release of any portion of the Mortgaged Property securing the
Arrowhead Towne Center Loan unless it shall have obtained an Opinion of Counsel
(at the expense of the Borrower) that such release will not constitute a
"significant modification" of such Mortgage Loan pursuant to Treasury
Regulations Sections 1.1001-3 or 1.860G-2(b)(3) and will not otherwise adversely
affect the status of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC.
(k) With respect to each Mortgage Loan, the Master Servicer or the Special
Servicer, as applicable, shall give notice to the related Borrower of any
default or event of default under such Mortgage Loan, including without
limitation any default in the payment of interest or principal, immediately upon
receipt of knowledge thereof, in conformity with the notice provisions of such
Mortgage Loan, whether or not notice is required to be given thereunder.
(l) With respect to each Mortgage Loan, the giving of any consent or
approval to an investment of funds permitted with mortgagee consent or approval
pursuant to the terms of any Loan Document shall be conditioned on such
investments being made in Permitted Investments (as defined herein).
(m) Notwithstanding any other provision herein to the contrary, the
Trustee, the Master Servicer and the Special Servicer, as applicable, shall be
subject to the following limitations or authorizations, as applicable, with
respect to the specific Mortgage Loans identified below:
(i) The Trustee, the Master Servicer or the Special Servicer, as
applicable, shall not take any of the following actions unless
(x) it has received prior written confirmation from each Rating
Agency that such action, in and of itself, will not result in the
qualification, downgrade or withdrawal of the then current
ratings assigned by such Rating Agency to any of the Classes of
Certificates or (y) the mortgagee is not given discretion under
the terms of the related Mortgage Loan:
(A) With respect to each Mortgage Loan, the giving of any
consent to the transfer of any interest in a related
Mortgaged Property or of any direct or indirect interest in
the related Borrower;
(B) With respect to each Mortgage Loan, the giving of any
consent to the termination of the related Manager or the
designation of any replacement Manager;
(C) With respect to the Yorktown Shopping Center Loan, as
amended, the giving of any consent to or approval of loan
documents providing for secondary or subordinated financing
or any other discretionary consent or approval set forth
under such Mortgage Loan in the conditions for such
secondary or subordinated financing;
(D) With respect to the Westshore Mall Loan, the giving of any
consent or approval to the designation of a "Qualified
Purchaser" as provided in Section 11(f) of the related
Mortgage.
(ii) With respect to the 605 Third Avenue Loan, the Master Servicer or
the Special Servicer, as applicable, (x) shall draw down (in
whole or in part) on the Principal Amortization Letters of Credit
(as defined in the related Loan Agreement) and apply such funds
against the outstanding principal indebtedness promptly after the
occurrence of one or more of the following events: (a) an event
of default has occurred under such Loan Agreement and/or any
other related Loan Document and/or (b) the related Borrower has
not prepaid the entire principal indebtedness and any other
amounts outstanding under such Loan Documents on or before
October 1, 2007; provided, however, that such drawdown may be
delayed in accordance with the Servicing Standard but in no event
beyond the expiration of the last such Principal Amortization
Letter of Credit, and/or (c) the bank issuing any such Principal
Amortization Letter of Credit has ceased to be an Approved Bank
(as defined in such Loan Agreement) and the related Borrower has
failed to deliver a replacement Principal Amortization Letter of
Credit within thirty (30) days after receiving written notice
that such bank has ceased to be such an Approved Bank, and (y)
with respect to the period after October 1, 2007, shall determine
the monthly principal and interest due and payable, as provided
in Section 1(a) of the related Note, after giving effect to any
drawdown on such Principal Amortization Letters of Credit.
(iii) With respect to the 605 Third Avenue Loan, the Master Servicer or
the Special Servicer, as applicable, shall monitor the rating of
the bank issuing any Principal Amortization Letter of Credit (as
defined in the related Loan Agreement) and, immediately upon
receiving knowledge that such bank has ceased to be an Approved
Bank (as defined therein), shall give notice thereof to the
related Borrower.
(iv) With respect to the 605 Third Avenue Loan, if such Mortgage Loan
becomes a Specially Serviced Mortgage Loan which the Special
Servicer has determined to sell in accordance with Section 3.10
hereof, the Special Servicer shall comply with the procedures of
Section 3.18 hereof to the extent such procedures do not conflict
with Section 7.1(a) of the related Loan Agreement, as amended,
and in accordance with the Servicing Standard, and the Special
Servicer shall effect any such sale in compliance with the
provisions of such Section 7.1(a).
(v) With respect to the 605 Third Avenue Loan and the Grand Kempinski
Hotel Loan, the Master Servicer or the Special Servicer, as
applicable, shall give notice of any default or event of default
under either such Mortgage Loan to the related mezzanine lender
immediately upon knowing of such default or event of default, in
each case as provided in the related intercreditor agreement, and
in no event later than the giving of notice to the related
Borrower as required by Section 3.25(k). Such notice to the
mezzanine lender shall be given both by certified mail, return
receipt requested, and by a nationally recognized overnight
courier, with acknowledgment of receipt required.
(vi) With respect to each of the 605 Third Avenue Loan and the Grand
Kempinski Hotel Loan, the Master Servicer or the Special
Servicer, as applicable, shall enforce all the rights of the
Trustee as assignee of the lender under the related intercreditor
agreement in accordance with the Servicing Standard, including
without limitation its rights with respect to transfers of the
mezzanine loan, foreclosure by the mezzanine lender and
amendments of the mezzanine loan.
(vii) With respect to the Edens & Avant Pool Loan, the Master Servicer
shall, pursuant to Section 3.1(s)(xii) of the related Loan
Agreement, give timely notice to the related Borrower (but in no
event later than January 30, 2008) requiring such Borrower to
cause each ground lease for the Mortgaged Property known as
Jackson Plaza and the Mortgaged Property known as Blockbuster
Broad Run to be extended for a period or periods extending to
August 31, 2017 or thereafter, in each case in accordance with
the terms of the respective ground lease.
(viii) With respect to the FGS Pool Loan, the Master Servicer or the
Special Servicer, as applicable, shall require the related
Borrower to effect each extension of the term of each related
ground lease as provided in the amendment, dated October 16,
1997, of the related Mortgage.
(ix) With respect to the Fashion Mall Loan, the Master Servicer or the
Special Servicer, as applicable, shall require the related
Borrower to effect each extension of the term of each related
ground lease as provided in the amendment, dated October 16,
1997, of the related Mortgage.
(x) With respect to the Mark Centers Pool Loan, the Master Servicer
or the Special Servicer, as applicable, shall require the related
Borrower to effect each extension of the term of each related
ground lease as provided in the amendment, dated October 15,
1997, of the related Mortgage.
(xi) With respect to the North Shore Towers Loan, the Master Servicer
or the Special Servicer, as the case may be, shall enforce the
rights of the Trustee, as assignee of the lender, under the
related Lost Note Certificate and Indemnity, in accordance with
the Servicing Standard.
(xii) With respect to the North Shore Towers Loan, so long as no Credit
Event (as defined in the Hancock Agreement) has occurred, the
Master Servicer and the Special Servicer shall not make or cause
to be made any material modification of such Mortgage Loan
without the approval of the seller under that certain Mortgage
Loan Purchase Agreement dated September 24, 1997 by and between
John Hancock Mutual Life Insurance Company, as seller, and MSMC,
as purchaser, to the extent such approval is required thereunder.
(xiii) With respect to the Yorktown Shopping Center Loan, the Arrowhead
Towne Center Loan and the Westshore Mall Loan, the Master
Servicer or the Special Servicer, as applicable, shall cause
interest on each such Mortgage Loan to be calculated on the basis
of a 360-day year consisting of twelve thirty-day months.
(xiv) Unless expressly provided otherwise in the related Loan
Documents, the "discount rate" used to calculate any yield
maintenance charge with respect to any Mortgage Loan shall be the
Discount Rate.
(xv) With respect to any Mortgage Loan that requires the Borrower to
provide additional collateral upon a decline in the debt service
coverage ratio thereof, or permits the Borrower or Manager to
provide additional collateral in order to avoid a termination of
the Manager as a result of a decline in Debt Service Coverage
Ratio, the Master Servicer shall monitor such debt service
coverage ratio based on the information provided by the Borrower
in accordance with the Loan Documents, and shall enforce such
obligation of the Borrower in accordance with the Servicing
Standard. If such additional collateral is provided in the form
of a letter of credit, or if any Escrow Account or Reserve
Account contains a letter of credit, or if a letter of credit is
provided as additional collateral to avoid termination of a
Manager, the Master Servicer shall require that such letter of
credit be issued by a bank meeting the requirements of the
related Mortgage Loan, and if such requirements are based on
credit rating, shall monitor such rating in accordance with the
Servicing Standard and shall take such actions as are permitted
by the related Mortgage Loan and in accordance with the Servicing
Standard to require replacement of and/or draw down upon, such
letter of credit if the issuer thereof is downgraded below the
required rating level or its rating is qualified or withdrawn.
(xvi) With respect to any Mortgage Loan that permits the Borrower to
provide additional collateral to avoid termination of the related
Manager upon a decline in debt service coverage ratio, if the
Borrower so elects to provide such collateral, the Master
Servicer shall continue to monitor such debt service coverage
ratio based on the information provided by the Borrower in
accordance with the Loan Documents and enforce the obligation of
the Borrower to provide and increase the amount of such
collateral in accordance with the Servicing Standard.
(n) Notwithstanding any of the other provisions of this Section 3.25, the
Master Servicer shall only take such actions that are required under this
Section 3.25, to the extent that such actions are not expressly inconsistent
with the terms of the related Loan Documents.
(o) To the extent that the Master Servicer is provided with discretion
under the Loan Documents to select insurance or to consent to insurance
coverage, the Master Servicer shall, upon expiration of any policy in place as
of the Cut-Off-Date or to the extent the conditions set forth in the last
paragraph of Section 3.08(a) are no longer satisfied, select or consent to
insurers which satisfy the definition of "Qualified Insurer".
(p) With respect to each Mortgage Loan having an Effective Maturity Date,
if the related Loan Documents give the mortgagee the right to cause the
termination and replacement of the related Manager as a result of the Mortgage
Loan not being prepaid by the Effective Maturity Date or by a certain specified
date after the Effective Maturity Date, the Master Servicer shall not exercise
such right solely by virtue of the fact that the Mortgage Loan has not been
prepaid by the Effective Maturity Date or by such specified date thereafter.
SECTION 3.26. Modifications.
(a) During the term of a Mortgage Loan, the Special Servicer, may,
consistent with the Servicing Standard, agree to modify a Specially Serviced
Mortgage Loan to reduce the amount of principal (but, except as provided in this
Section 3.26, not interest) payable monthly on such Mortgage Loan, provided that
(i) a material default in respect of payment on such Mortgage Loan has occurred
or, in the Special Servicer's reasonable and good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and such
modification is reasonably likely to produce a greater recovery to
Certificateholders, on a net present value basis, than would liquidation; (ii)
the Special Servicer terminates the related Manager (unless the Special Servicer
determines that retaining such manager is conducive to maintaining the value of
the related Mortgaged Properties); and (iii) the Special Servicer may only agree
to reductions of monthly payments of principal lasting a period of no more than
twelve consecutive months and, in the aggregate, to no more than three
reductions of twelve months or less each; provided, however, Certificateholders
representing greater than 66-2/3% of all Voting Rights may direct the Special
Servicer not to agree to any such modification. The Special Servicer shall
promptly provide a copy of such proposed modification to the Master Servicer,
the Rating Agencies and the Trustee. The Trustee shall, within two Business
Days, notify, in writing, all of the Certificateholders that have Voting Rights
of such proposed modification. For purposes of determining whether
Certificateholders representing 66-2/3% of all Voting Rights have directed the
Special Servicer not to agree to such modification, each Certificateholder shall
have 15 days following the date of the Trustee's notice to respond to such
notice, and any Certificateholder that has not responded within such time period
shall be deemed to have consented to such modification.
Additionally, the Special Servicer may, consistent with the Servicing
Standard, agree to any modification, waiver or amendment of any term or forgive
or defer interest on and principal of, and/or add collateral for, any Mortgage
Loan with the consent of Certificateholders representing 100% of the Percentage
Interests of the most subordinate Class of Certificates then outstanding (the
"Directing Class"), subject, however, to each of the following limitations,
conditions and restrictions: (a) a material default in respect of such Mortgage
Loan has occurred or, in the Special Servicer's reasonable and 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 net
present value basis, than would liquidation; (b) no reduction in the scheduled
monthly payment of interest on any Mortgage Loan as a result of such
modification, waiver or amendment may result in an Interest Shortfall to any
Class other than the Directing Class, determined as of the date of such
modification, waiver or amendment; (c) any reduction in the scheduled monthly
payment of principal and/or interest on any Mortgage Loan must require that all
cash flow on all related Mortgaged Properties in excess of amounts required to
operate and maintain such Mortgaged Properties be applied to payments of
principal and interest on such Mortgage Loan; (d) the Special Servicer may only
agree to reductions of principal and/or interest lasting a period of no more
than twelve consecutive months and, in the aggregate, to no more than three
periods of twelve months or less each; (e) the Special Servicer may not reduce
any Prepayment Premium or Lock-out Period; (f) the Special Servicer may not at
any time forgive principal of a Mortgage Loan to the extent that the amount
forgiven, together with all amounts of principal previously forgiven pursuant to
this paragraph would be in excess of (i) the Certificate Principal Amount of the
Directing Class less the sum of (ii) the aggregate amount of Appraisal Reduction
Amounts then outstanding and (iii) the aggregate amount of Interest Shortfalls
then outstanding (other than with respect to the Directing Class with respect to
Interest Shortfalls); (g) the Special Servicer shall not permit any Borrower to
add any real property collateral unless the Special Servicer has first
determined in accordance with the Servicing Standard, based upon an
environmental assessment prepared by an Independent Person who regularly
conducts environmental assessments, at the expense of the Borrower, that such
additional real property 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 (h) no
Mortgage Loan may be extended past the date occurring two years immediately
prior to the Rated Final Distribution Date. Notwithstanding the foregoing, the
Trustee shall promptly upon request provide the Special Servicer with such
information as is in its possession and as is reasonably necessary to enable the
Special Servicer to make the determinations required by clauses (b) and (f)
above. If the Certificateholders representing 100% of the Percentage Interests
of the second most subordinate Class of Certificates then outstanding consent to
such modification, waiver or amendment, the Directing Class for purposes of the
determinations made in clauses (b) and (f) shall include the second most
subordinate Class of Certificates and the amount by which principal can be
reduced shall not be in excess of 80% of the aggregate principal balance of both
such Classes less the items specified in clause (f)(ii) and (f)(iii). A
modification pursuant to this paragraph is not subject to the veto of
Certificateholders set forth in the preceding paragraph of this Section. For the
purposes of determining the Percentage Interest of the Directing Class, the
Certificates held by any Certificateholder that holds, or whose Affiliate is,
also the lender of any debt of any Affiliate of the Borrowers that is related to
the Mortgage Loan that is the subject of such consent, shall not be taken into
consideration.
(b) Notwithstanding Section 3.26(a), the Master Servicer or the Special
Servicer, as applicable, shall be permitted to modify, waive or amend any term
of a Mortgage Loan that is not in default or as to which default is not
reasonably foreseeable, but only if such modification, waiver or amendment (a)
would not be "significant" as such term is defined in Code Section 1001, or
Treasury Regulations Section 1.860G-2(b)(3), as determined by the Master
Servicer or Special Servicer (and the Master Servicer or Special Servicer may
rely on an Opinion of Counsel in making such determination), (b) would be in
accordance with the Servicing Standard and (c) would not adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The consent thereto of the majority of Percentage Interests of each Class of
Certificates affected thereby or written confirmation from each Rating Agency
that such modification, waiver or amendment will not result in a qualification,
withdrawal or downgrading of the then current ratings assigned to the
Certificates shall not be required but shall be conclusive evidence that such
modification, waiver or amendment would not adversely affect in any material
respect the interest of any Certificateholder not consenting thereto.
(c) The Master Servicer or Special Servicer, as applicable, shall provide
copies of any modifications, waivers or amendments pursuant to this Section 3.26
to each Rating Agency and to the Depositor.
<PAGE>
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Master Servicer Remittance Date, to the extent of Available
Funds, amounts held in the Collection Account shall be withdrawn by the Master
Servicer and remitted to the Trustee for deposit in the Lower-Tier Distribution
Account. On each Distribution Date, the amount that has been so transferred to
the Lower-Tier Distribution Account from the Collection Account shall be
distributed on the Lower-Tier Regular Interests to the Upper-Tier REMIC in
accordance with the provisions set out below. Thereafter, such amounts shall be
considered to be held in the Upper-Tier Distribution Account until distributed
to the Certificateholders.
(i) Principal amounts, rates of interest and timing of payments of
principal and interest on each Class of Lower-Tier Regular
Interest will be identical to such amounts, rates, and timing on
the corresponding Class of Related Certificates, except that,
solely for this purpose, all calculations of interest with
respect to the Related Lower-Tier Regular Interests shall be made
as though the Class A-1, Class A-2, Class A-3, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificate
Pass-Through Rates were equal to the WAC Rate and as though the
Class X Notional Amount were zero at all times, such that the
rates of interest and timing of interest payments on each Related
Lower-Tier Regular Interest represent the aggregate of the
corresponding amounts on each Class of Related Certificates and
its related component of the Class X Certificates. The
Certificate Principal Amount of each Class of Lower-Tier Regular
Interests shall at all times be equal to the Certificate
Principal Amount of its Related Class of Certificates, and the
interest rate of each Class of Lower-Tier Regular Interests shall
be the WAC Rate.
(ii) Any Prepayment Premium (net of the portion of any Prepayment
Premium required to be paid to John Hancock) that is to be paid
to a Regular Certificate, other than the Class X Certificates,
shall be paid to the Related Lower-Tier Regular Interest, and the
balance of any such Prepayment Premium, so long as any one or
more of the Class LA-1, Class LA-2, Class LA-3, Class LB, Class
LC, Class LD, Class LE, Class LF, Class LG or Class LH Interests
remain outstanding, shall be paid to such Lower-Tier Regular
Interests, pro rata, in proportion to the Interest Distribution
Amount for the Related Certificates for such Distribution Date.
Realized Losses shall be allocated to, and shall reduce the
Certificate Principal Amounts of, each Class of Lower-Tier
Regular Interests without distribution on any Distribution Date,
to the extent that the Certificate Principal Amount of such Class
exceeds the Certificate Principal Amount of the corresponding
Related Certificates because of Realized Losses allocated to such
Related Certificates.
(iii) Realized Losses and other amounts specified in Section 4.01(f)
shall be allocated to, and shall reduce the Certificate Principal
Amount of, each Class of Lower-Tier Regular Interests without
distribution on any Distribution Date, to the extent that the
Certificate Principal Amount of such Class exceeds the
Certificate Principal Amount of the corresponding Class of
Related Certificates because of Realized Losses and other amounts
specified in Section 4.01(f) allocated to such Related
Certificates. Amounts recovered in respect of any amounts
previously written off as Realized Losses and other amounts
specified in Section 4.01(f) will be distributed on the Related
Lower-Tier Regular Interests, to the extent that amounts
recovered in respect of any amounts previously written off as
Realized Losses and other amounts specified in Section 4.01(f)
are distributed on the corresponding Related Certificates.
(iv) On each Distribution Date, any amounts remaining in the
Lower-Tier Distribution Account after the distributions set forth
above in this Section 4.01(a)(i)-(iii) shall be distributed to
the Class LR Certificates.
(b) On each Distribution Date prior to the Cross-over Date, Holders of each
Class of Certificates (other than the Class Q and Class LR Certificates) shall
receive distributions from amounts on deposit in the Upper-Tier Distribution
Account in respect of interest and principal, to the extent of Available Funds,
in the amounts and in the order of priority set forth below:
First, pro rata, in respect of interest, to the Class A-1, Class A-2,
Class A-3 and Class X Certificates, up to an amount equal to, and pro rata
as among such Classes in accordance with, the Interest Distribution Amounts
of such Classes;
Second, to the Class A Certificates, in reduction of their respective
Certificate Principal Amounts in the following order: first, to the Class
A-1 Certificates, second, to the Class A-2 Certificates and third, to the
Class A-3 Certificates, in each case up to an amount equal to the lesser of
(i) the Certificate Principal Amount thereof and (ii) the Principal
Distribution Amount for such Distribution Date;
Third, to the Class B Certificates, in respect of interest, up to an
amount equal to the aggregate Interest Distribution Amount of such Class;
Fourth, to the Class B Certificates, in reduction of the Certificate
Principal Amount thereof, up to an amount equal to the Principal
Distribution Amount less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Principal
Amount thereof is reduced to zero;
Fifth, to the Class B Certificates, an amount equal to the aggregate
of unreimbursed Realized Losses previously allocated to such Class, plus
interest thereon at the Pass-Through Rate for such Class compounded monthly
from the date the related Realized Loss was allocated to such Class;
Sixth, to the Class C Certificates, in respect of interest, up to an
amount equal to the aggregate Interest Distribution Amount of such Class;
Seventh, to the Class C Certificates, in reduction of the Certificate
Principal Amount thereof, up to an amount equal to the Principal
Distribution Amount less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Principal
Amount thereof is reduced to zero;
Eighth, to the Class C Certificates, an amount equal to the aggregate
of unreimbursed Realized Losses previously allocated to such Class, plus
interest thereon at the Pass-Through Rate for such Class compounded monthly
from the date the related Realized Loss was allocated to such Class;
Ninth, to the Class D Certificates, in respect of interest, up to an
amount equal to the aggregate Interest Distribution Amount of such Class;
Tenth, to the Class D Certificates, in reduction of the Certificate
Principal Amount thereof, up to an amount equal to the Principal
Distribution Amount less the portion of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Principal
Amount thereof is reduced to zero;
Eleventh, to the Class D Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
Twelfth, to the Class E Certificates, in respect of interest, up to an
amount equal to the aggregate Interest Distribution Amount of such Class;
Thirteenth, to the Class E Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses, until the
Certificate Principal Amount thereof is reduced to zero;
Fourteenth, to the Class E Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
Fifteenth, to the Class F Certificates, in respect of interest, up to
an amount equal to the aggregate Interest Distribution Amount of such
Class;
Sixteenth, to the Class F Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses, until the
Certificate Principal Amount thereof is reduced to zero;
Seventeenth, to the Class F Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
Eighteenth, to the Class G Certificates in respect of interest, up to
an amount equal to the aggregate Interest Distribution Amount of such
Class;
Nineteenth, to the Class G Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses, until the
Certificate Principal Amount thereof is reduced to zero;
Twentieth, to the Class G Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
Twenty-first, to the Class H Certificates, in respect of interest, up
to an amount equal to the aggregate Interest Distribution Amount of such
Class;
Twenty-second, to the Class H Certificates in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount less the portion of the Principal
Distribution Amount distributed pursuant to all prior clauses, until the
Certificate Principal Amount thereof is reduced to zero;
Twenty-third, to the Class H Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class; and
Twenty-fourth, to the Class R Certificates, any amounts remaining in
the Upper-Tier Distribution Account.
On each Distribution Date occurring on and after the Cross-over Date,
regardless of the allocation of principal payments described in priority Second
above, an amount equal to the aggregate of the Principal Distribution Amounts
will be distributed, first, to the Class A-1, Class A-2 and Class A-3
Certificates, pro rata, based on their respective Certificate Principal Amounts,
in reduction of their respective Certificate Principal Amounts, until the
Certificate Principal Amount of each such Class is reduced to zero, and, second,
to the Class A-1, Class A-2 and Class A-3 Certificates for unreimbursed amounts
of Realized Losses previously allocated to such Classes, pro rata, in accordance
with the amount of such unreimbursed Realized Losses so allocated.
All references to "pro rata" in the preceding clauses with respect to
interest and Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distributions of
principal other than in reimbursement of Realized Losses shall mean pro rata
based on Certificate Principal Amount, and with respect to distributions in
reimbursement of Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) On any Distribution Date, Prepayment Premiums (other than, with respect
to the North Shore Towers Loan, the portion of any Prepayment Premium payable to
John Hancock pursuant to the Hancock Agreement) collected during the related
Collection Period shall be distributed to the Holders of the Classes of
Certificates as follows:
(i) If any Class A Certificate remains outstanding on such
Distribution Date, to Holders of the Classes of Principal Balance
Certificates entitled to distributions of principal on such
Distribution Date in an aggregate amount (allocable among such
Classes if more than one such Class remains outstanding, as
described below) equal, with respect to the applicable Prepayment
Premium, to the product of (a) the amount of such Prepayment
Premium, multiplied by (b) a fraction, expressed as a percentage,
the numerator of which is equal to the excess, if any, of the
then current Pass-Through Rate applicable to the most senior of
such Classes of Principal Balance Certificates (or, in the case
of two or more Classes of Class A Certificates remaining
outstanding, the one with the earliest payment priority), over
the relevant Discount Rate, and the denominator of which is equal
to the excess, if any, of the Mortgage Rate for the prepaid
Mortgage Loan over the relevant Discount Rate. If there is more
than one Class of Principal Balance Certificates entitled to
distributions of principal on such Distribution Date, the
aggregate amount described in the preceding sentence shall be
allocated among such Classes on a pro rata basis, in accordance
with the relative amounts of such distributions of principal. Any
portion of such Prepayment Premium that is not required to be so
distributed to the Holders of such Principal Balance Certificates
shall be distributed to the Class X Certificates; and
(ii) If no Class A Certificate remains outstanding on such
Distribution Date, to Holders of the Class X Certificates, an
amount equal to, with respect to the applicable Prepayment
Premium, the product of such Prepayment Premium, multiplied by a
fraction, the numerator of which is equal to the sum of the
Servicing Fee Rate (and, in the case of the North Shore Towers
Loan, the Hancock Retained Interest) and the Component
Pass-Through Rate related to the Class of Certificates with the
earliest Class designation which has a Class Prepayment
Percentage greater than zero, and the denominator of which is the
greater of (x) the excess, if any, of the Mortgage Rate of the
Mortgage Loan that prepaid over the relevant Discount Rate, and
(y) the sum of such Component Pass-Through Rate and the Servicing
Fee Rate (and, in the case of the North Shore Towers Loan, the
Hancock Retained Interest). Any portion of such Prepayment
Premium that is not required to be so distributed to the Holders
of the Class X Certificates shall be distributed to the Holders
of the Class B, Class C, Class D, Class E and Class F
Certificates in an amount with respect to each such Class equal
to the product of (a) the Class Prepayment Percentage with
respect to the related Class of Certificates for such
Distribution Date and (b) the remaining portion of such
Prepayment Premium.
(d) On each Distribution Date the Trustee shall withdraw the amount of any
Net Default Interest received in the related Collection Period from the Class Q
Distribution Account and shall distribute such funds to the holders of the Class
Q Certificates.
(e) On each Distribution Date, any Deferred Interest received during the
related Collection Period with respect to any Mortgage Loan shall be distributed
to Holders of the Class B, Class C, Class D, Class E, Class F, Class G and Class
H Certificates in an amount, with respect to each such Class, equal to the
product of (x) the related Deferred Interest Distribution Percentage and (y) the
aggregate amount of any such Deferred Interest.
(f) The Certificate Principal Amount of each Class of Principal Balance
Certificates entitled to distributions of principal will be reduced without
distribution on any Distribution Date, as a write-off, to the extent of any
Realized Loss allocated to such Class on such Distribution Date. Any such
write-offs will be applied to such Classes of Principal Balance Certificates in
the following order, until each is reduced to zero; first, to the Class H
Certificates; second, to the Class G Certificates; third, to the Class F
Certificates, fourth, to the Class E Certificates; fifth, to the Class D
Certificates; sixth; to the Class C Certificates; seventh, to the Class B
Certificates; and, finally, pro rata to the Class A-1, Class A-2 and Class A-3
Certificates based on their respective Certificate Principal Amounts.
Shortfalls in Available Funds resulting from additional servicing
compensation other than the Servicing Fee, interest on Advances not covered by
Default Interest, Additional Trust Fund Expenses, a reduction of the interest
rate of a Mortgage Loan by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers or other unanticipated
or default-related expenses will be allocated to each Class of Certificates in
the same manner as Realized Losses. Excess Prepayment Interest Shortfalls will
be allocated to each Class of Certificates, pro rata, based upon the amount of
interest which would have otherwise been distributed to each Class of
Certificates.
(g) All amounts distributable, or reductions allocable on account of
Realized Losses, to a Class of Certificates pursuant to this Section 4.01 on
each Distribution Date shall be allocated pro rata among the outstanding
Certificates in each such Class based on their respective Percentage Interests.
Such distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
(a) by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity located in the United States and
having appropriate facilities therefor, if such Certificateholder provides the
Trustee with wiring instructions no less than five Business Days prior to the
related Record Date, or otherwise (b) by check mailed to such Certificateholder.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate Registrar
acting as such agent) that is specified in the notice to Certificateholders of
such final distribution.
(h) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates, on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information
previously provided to it that the final distribution with
respect to such Class of Certificates will be made on such
Distribution Date, but only upon presentation and surrender
of such Certificates at the office of the Trustee therein
specified, and
(B) if such final distribution is made on such Distribution
Date, no interest shall accrue on such Certificate, or on
the Related Lower-Tier Regular Interests from and after such
Distribution Date;
provided, however, that the Class Q, Class R and Class LR Certificates shall
remain outstanding until there is no other Class of Certificates outstanding.
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 in trust
for the benefit of the appropriate non-tendering Holder or Holders. If any
Certificates as to which notice has been given pursuant to this Section 4.01(h)
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 to receive the final distribution with respect thereto. If within
one year after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. If within two years after the second notice any such Certificates
shall not have been surrendered for cancellation, the Paying Agent shall pay to
the Trustee all amounts distributable to the Holders thereof, and the Trustee
shall thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee hereunder and the transfer of such
amounts to a successor Trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Class R Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
hereunder or by the Trustee as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with this
Section 4.01(h). Any funds not distributed on such Distribution Date shall be
set aside and held uninvested in trust for the benefit of Certificateholders not
presenting and surrendering their Certificates in the aforesaid manner.
(i) The Certificate Principal Amounts of the Class H, Class G, Class F,
Class E, Class D, Class C and Class B Certificates will be notionally reduced on
any Distribution Date for purposes of determining the Voting Rights of each
Class of Certificates to the extent of any Appraisal Reduction Amounts allocated
to such Class with respect to such Distribution Date. To the extent that the
aggregate of the Appraisal Reduction Amounts for any Distribution Date do exceed
such Certificate Principal Amount, such excess will be applied, subject to any
reversal described below, to notionally reduce the Certificate Principal Amounts
of the next most subordinate Class of Certificates on the next Distribution
Date. Any such reductions will be applied in the following order of priority:
first, to the Class H Certificates; second, to the Class G Certificates; third,
to the Class F Certificates; fourth, to the Class E Certificates; fifth, to the
Class D Certificates; sixth, to the Class C Certificates; and finally to the
Class B Certificates (provided in each case that no Certificate Balance in
respect of any such Class may be notionally reduced below zero).
SECTION 4.02. Statements to Certificateholders; Available Information;
Information Furnished to Financial Market Publisher.
(a) On each Distribution Date, the Trustee shall, based on information
provided by the Master Servicer or provided by the Special Servicer to the
Master Servicer (with respect to a Specially Serviced Mortgage Loan, an REO
Property or the servicing responsibilities of the Special Servicer set forth
herein including the Special Servicer's obligation to make Advances) and subject
to receipt thereof, prepare and forward by mail to each Holder of a Certificate,
with copies to the Depositor, the Paying Agent, the Master Servicer, the Special
Servicer, the Rating Agencies and up to three market reporting services
designated by the Depositor, a statement as to such distribution (a "Monthly
Distribution Statement") setting forth the information set forth on Exhibit I
hereto, and including among other things, for each Class, as applicable:
(i) the Principal Distribution Amount and the amount of Available
Funds allocable to principal included therein;
(ii) The Interest Distribution Amount distributable on such Class and
the amount of Available Funds allocable thereto, together with
any Interest Shortfall allocable to such Class;
(iii) The amount of any P&I Advances by the Master Servicer, the
Trustee or the Fiscal Agent included in the amounts distributed
to Certificateholders not reimbursed since the previous
Distribution Date;
(iv) The initial Certificate Principal Balance or initial Notional
Amount, as applicable, of each Class, and the Certificate
Principal Amount or Notional Amount, as applicable, of each Class
after giving effect to the distribution of amounts in respect of
the Principal Distribution Amount on such Distribution Date;
(v) Realized Losses (for such month and cumulative basis and on a
Mortgage Loan by Mortgage Loan basis) and other shortfalls
attributable to amounts specified in Section 4.01(f) and their
allocation to the Certificate Principal Amount of any Class of
Certificates;
(vi) The Stated Principal Balance of the Mortgage Loans as of the Due
Date immediately prior to such Distribution Date;
(vii) The number and aggregate principal balance of Mortgage Loans (and
the identity of each related Borrower) (A) delinquent one month,
(B) delinquent two months, (C) delinquent three or more months,
(D) as to which foreclosure proceedings have been commenced and
(E) that otherwise constitute Specially Serviced Mortgage Loans,
and, with respect to each Specially Serviced Mortgage Loan, the
amount of Property Advances made during the related Collection
Period, the amount of the P&I Advance made with respect to such
Distribution Date, the aggregate amount of Property Advances
theretofore made that remain unreimbursed and the aggregate
amount of P&I Advances theretofore made that remain unreimbursed;
(viii) With respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the principal balance and
appraised value (based on an Updated Appraisal, if required under
Section 3.10(a)) of such Mortgage Loan as of the date it became
an REO Mortgage Loan;
(ix) (A) For any REO Property sold during the related Collection
Period, the date on which the Special Servicer determined that a
Final Recovery Determination was made and the amount of the
proceeds of such sale deposited into the Collection Account, (B)
the aggregate amount of other revenues collected by the Special
Servicer with respect to each REO Property during the related
Collection Period and credited to the Collection Account, in each
case identifying such REO Property by name and (C) the appraised
value as determined by the most recent Updated Appraisal (or
annual letter update thereof) of any REO Property, if required
under Section 3.10(a);
(x) The amount of the Servicing Fee, Trustee Fee and Special
Servicing Compensation paid with respect to such Distribution
Date;
(xi) (A) The amount of Prepayment Premiums, if any, received during
the related Collection Period, (B) the amount of Default Interest
received during the related Collection Period and the Net Default
Interest for such Distribution Date and (C) the amount of
Deferred Interest, if any, received during the related Collection
Period;
(xii) The outstanding principal balance and Repurchase Price of any
Mortgage Loan purchased or repurchased pursuant to Sections
2.03(c), 3.18 or 9.01(c);
(xiii) The amount of Prepayment Interest Shortfalls with respect to such
Distribution Date;
(xiv) The CUSIP number for such Class of Certificates, if any;
(xv) The amount of negative amortization on the Mortgage Loans,
created by any modification;
(xvi) The Appraisal Reduction Amounts with respect to such Distribution
Date;
(xvii) A reference to any Special Event Report furnished to the Trustee
during the preceding calendar month, including without
limitation, any such report relating to anchor tenants;
(xviii) Account reconciliations with respect to the immediately preceding
Distribution Date with respect to the Collection Account (giving
effect to P&I Advances, Property Advances, Servicing Fees,
Trustee Fees, additional servicing compensation, Prepayment
Premiums, Default Interest, Net Default Interest, and Deferred
Interest); and
(xix) other information reasonably requested by the Depositor.
In the case of information furnished pursuant to subclauses (i), (ii),
(iv), (v), and (xi) above, the amounts shall be expressed as a dollar amount in
the aggregate for all Certificates of each applicable Class and for each Class
of Certificates with a denomination of $1,000 initial Certificate Principal
Amount or Notional Amount.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Certificate (except for a Class R or Class LR Certificate) a
statement containing the information set forth in subclauses (i) and (ii) above,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
On each Distribution Date, the Trustee shall forward to each Holder of a
Class R or Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to the Class R or Class LR
Certificates on such Distribution Date. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Class R or Class LR Certificate a statement containing the
information provided pursuant to the previous paragraph aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that it provided substantially comparable information
pursuant to any requirements of the Code as from time to time in force.
(b) On or within two Business Days following each Distribution Date, the
Trustee shall make available to the Financial Market Publisher and the
Underwriter, using the format and media mutually agreed upon by the Trustee, the
Financial Market Publisher and the Underwriter, the following information
regarding each Mortgage Loan and any other information reasonably requested by
the Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
In addition, on or within two Business Days following each Distribution
Date, the Trustee shall make (x) certain information contained in the Monthly
Distribution Statement available to Certificateholders through its ASAP System
by Certificateholders dialing telephone number(312) 904-2200 and requesting
statement No. 284 and (y) certain information regarding the Mortgage Loans
available in electronic format through its dial-up bulletin board service, by
Certificateholders dialing telephone number (714) 282-3990.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.02(a) and 4.02(b) to the extent it
receives the necessary underlying information from the Master Servicer or the
Special Servicer and shall not be liable for any failure to deliver any thereof
on the prescribed due dates, to the extent caused by failure to receive timely
such underlying information and, if the Master Servicer is not the Special
Servicer, the Master Servicer shall not be liable for any failure of the Special
Servicer to provide such underlying information. Nothing herein shall obligate
the Trustee, the Master Servicer or the Special Servicer to violate any
applicable law prohibiting disclosure of information with respect to any
Borrower and the failure of the Trustee, the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereof.
SECTION 4.03. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements with respect to payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Certificateholder that is a Non-U.S.
Person that has furnished or caused to be furnished (i) an effective Form W-8 or
Form W-9 or an acceptable substitute form or a successor form and who is not a
"10-percent shareholder" within the meaning of Code Section 871(h)(3)(B) or a
"controlled foreign corporation" described in Code Section 881(c)(3)(C) with
respect to the Trust Fund or the Depositor, or (ii) an effective Form 4224 or an
acceptable substitute form or a successor form. In the event the Paying Agent or
its agent withholds any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the Lower-Tier
REMIC shall constitute, and that the affairs of each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall be conducted so as to qualify it as, a "real estate
mortgage investment conduit" as defined in, and in accordance with, the REMIC
Provisions, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC and the Lower-Tier REMIC and shall on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC: (i) prepare,
sign and file, or cause to be prepared and filed, all required Tax Returns for
each of the Upper-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC and the Lower-Tier REMIC when
and as required by the REMIC Provisions and other applicable federal, state or
local income tax laws; (ii) make an election, on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC on Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.04(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-Tier REMIC and the Lower-Tier REMIC for this purpose), together with such
additional information as may be required by such Form, and shall update such
information at the time or times and in the manner required by the Code (and the
Depositor agrees within 10 Business Days of the Closing Date to provide any
information reasonably requested by the Master Servicer or the Trustee and
necessary to make such filing); and (vi) maintain such records relating to each
of the Upper-Tier REMIC and the Lower-Tier REMIC as may be necessary to prepare
the foregoing returns, schedules, statements or information, such records, for
federal income tax purposes, to be maintained on a calendar year and on an
accrual basis. The Holder of the largest Percentage Interest in the Class R or
Class LR Certificates shall be the tax matters person of the Upper-Tier REMIC or
the Lower-Tier REMIC, respectively, pursuant to Treasury Regulations Section
1.860F-4(d). If more than one Holder should hold an equal Percentage Interest in
the Class R or Class LR Certificates larger than that held by any other Holder,
the first such Holder to have acquired such Class R or Class LR Certificates
shall be such tax matters person. The Trustee shall act as attorney-in-fact and
agent for the tax matters person of each of the Upper-Tier REMIC and Lower-Tier
REMIC, and each Holder of a Percentage Interest in the Class R or Class LR
Certificates, by acceptance hereof, is deemed to have consented to the Trustee's
appointment in such capacity and agrees to execute any documents required to
give effect thereto, and any fees and expenses incurred by the Trustee in
connection with any audit or administrative or judicial proceeding shall be paid
by the Trust Fund. The Trustee shall not intentionally take any action or
intentionally omit to take any action if, in taking or omitting to take such
action, the Trustee knows that such action or omission (as the case may be)
would cause the termination of the REMIC status of the Upper-Tier REMIC or the
Lower-Tier REMIC or the imposition of tax on the Upper-Tier REMIC or the
Lower-Tier REMIC (other than a tax on income expressly permitted or contemplated
to be received by the terms of this Agreement). Notwithstanding any provision of
this paragraph to the contrary, the Trustee shall not be required to take any
action that the Trustee in good faith believes to be inconsistent with any other
provision of this Agreement, nor shall the Trustee be deemed in violation of
this paragraph if it takes any action expressly required or authorized by any
other provision of this Agreement, and the Trustee shall have no responsibility
or liability with respect to any act or omission of the Depositor or the Master
Servicer which does not enable the Trustee to comply with any of clauses (i)
through (vi) of the fifth preceding sentence or which results in any action
contemplated by clauses (i) through (iii) of the next succeeding sentence. In
this regard the Trustee shall (i) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" within the meaning of Code Section
860F(a), unless the party seeking such action shall have delivered to the
Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (A) result in a taxable gain, (B) otherwise subject the Upper-Tier
REMIC or Lower-Tier REMIC to tax (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property), or (C) cause either
of the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC; and
(ii) exercise reasonable care not to allow either of the Trust REMICs to receive
income from the performance of services or from assets not permitted under the
REMIC Provisions to be held by a REMIC (provided, however, that the receipt of
any income expressly permitted or contemplated by the terms of this Agreement
shall not be deemed to violate this clause) and (iii) not permit the creation of
any "interests," within the meaning of the REMIC Provisions, in the Upper-Tier
REMIC other than the Regular Certificates and the Class R Certificates or in the
Lower-Tier REMIC other than the Lower-Tier Regular Interests and the Class LR
Certificates. None of the Master Servicer, the Special Servicer or the Depositor
shall be responsible or liable for any failure by the Trustee to comply with the
provisions of this Section 4.04. The Depositor, the Master Servicer and the
Special Servicer shall cooperate in a timely manner with the Trustee in
supplying any information within the Depositor's, the Master Servicer's or the
Special Servicer's control (other than any confidential information) that is
reasonably necessary to enable the Trustee to perform its duties under this
Section 4.04.
(b) The tax matter person, the Master Servicer and the Special Servicer
each hereby covenants to perform its duties hereunder so as to maintain the
status of the Trust REMICs as REMICs (and the Master Servicer and the Special
Servicer shall assist the Trustee to the extent reasonably requested by the
Trustee and to the extent of information within the Master Servicer's or the
Special Servicer's possession or control). None of the tax matters person, the
Master Servicer or the Special Servicer shall knowingly take (or cause the
applicable Trust REMICs to take) any action or fail to take (or fail to cause to
be taken) any action within their respective control and the scope of their
respective duties under this Agreement that if taken or not taken, as the case
may be, would (i) endanger the status of either Trust REMIC as a REMIC, or (ii)
result in the imposition of a tax upon either Trust REMIC (including, but not
limited to the tax on prohibited transactions as defined in Section 860F(a) of
the Code) (any such endangerment or imposition, an "Adverse REMIC Event") unless
the Trustee has received an Opinion of Counsel (at the expense of the party
requesting such action) to the effect that the contemplated action will not
result in an Adverse REMIC Event. In addition, prior to taking any action with
respect to either Trust REMIC, or causing either Trust REMIC to take any action,
that is not expressly permitted under the terms of this Agreement, the tax
matters person, the Master Servicer and the Special Servicer shall consult with
the Trustee or its designee, in writing, with respect to whether such action
would cause an Adverse REMIC Event to occur.
(c) The following assumptions are to be used for purposes of determining
the anticipated payments of principal and interest for calculating the original
yield to maturity and original issue discount with respect to the Regular
Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans in the aggregate will prepay
in accordance with the Prepayment Assumption; (ii) none of the Master Servicer,
the Depositor and the Class LR Certificateholders will exercise the right
described in Section 9.01 of this Agreement to cause early termination of the
Trust Fund; and (iii) no Mortgage Loan is repurchased by MSMC or the Depositor
pursuant to Article II hereof.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC or
Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(vii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from the Collection Account in determining
the amount of Available Funds sufficient funds to pay or provide for the payment
of, and to actually pay, such tax as is legally owed by the Upper-Tier REMIC, or
Lower-Tier REMIC (but such authorization shall not prevent the Trustee from
contesting, at the expense of the Trust Fund, any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The Trustee is hereby authorized to and shall
segregate or cause to be segregated, into a separate non-interest bearing
account, (i) the net income from any "prohibited transaction" under Code Section
860F(a) or (ii) the amount of any contribution to the Upper-Tier REMIC or
Lower-Tier REMIC after the Startup Day that is subject to tax under Code Section
860G(d) and use such income or amount, to the extent necessary, to pay such tax
(and return the balance thereof, if any, to the Lower-Tier Distribution Account
or the Upper-Tier Distribution Account, as the case may be). To the extent that
any such tax is paid to the IRS, the Trustee shall retain an equal amount from
future amounts otherwise distributable to the Holders of the Class R or the
Class LR Certificates, as the case may be, and shall distribute such retained
amounts to the Holders of Regular Certificates or to the Trustee in respect of
the Lower-Tier Regular Interests, as applicable, until they are fully reimbursed
and then to the Holders of the Class R Certificates or the Class LR
Certificates, as applicable. Neither the Master Servicer, the Special Servicer
nor the Trustee shall be responsible for any taxes imposed on the Upper-Tier
REMIC or Lower-Tier REMIC except to the extent such tax is attributable to a
breach of a representation or warranty of the Master Servicer, the Special
Servicer or the Trustee or an act or omission of the Master Servicer, the
Special Servicer or the Trustee in contravention of this Agreement in both
cases, provided, further, that such breach, act or omission could result in
liability under Section 6.03, in the case of the Master Servicer or Section 4.04
or 8.01, in the case of the Trustee. Notwithstanding anything in this Agreement
to the contrary, in each such case, the Master Servicer or the Special Servicer
shall not be responsible for Trustee's breaches, acts or omissions, and the
Trustee shall not be responsible for the breaches, acts or omissions of the
Master Servicer or the Special Servicer.
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan with
respect to any month, (A) if such Mortgage Loan has been extended (other than
pursuant to Section 3.26) in accordance with the terms and conditions otherwise
set forth in this Agreement, the lesser of (1) the Extended Monthly Payment (net
of the related Servicing Fee, and, in the case of the North Shore Towers Loan,
the Hancock Retained Interest) and (2) the Monthly Payment on the Mortgage Loan
prior to such extensions, and (B) if such Mortgage Loan is not described by the
preceding clause (A) (including any such Mortgage Loan as to which the related
Mortgaged Property has become an REO Property), the Monthly Payment; provided,
however, that for purposes of calculating the amount of any P&I Advance required
to be made by the Master Servicer, the Trustee or the Fiscal Agent,
notwithstanding the amount of such Applicable Monthly Payment, interest shall be
calculated at the Net Mortgage Rate plus the Trustee Fee Rate; and provided
further that for purposes of determining the amount of any P&I Advance, the
Monthly Payment shall be as reduced pursuant to any modification of a Mortgage
Loan pursuant to Section 3.26.
(b) On the Master Servicer Remittance Date immediately preceding each
Distribution Date, the Master Servicer shall:
(i) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the Prepayment Premiums received by
the Master Servicer in the Collection Period preceding such
Distribution Date;
(ii) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the Available Funds (other than the
amounts referred to in clause (iii) below); and
(iii) make a P&I Advance, by deposit into the Lower-Tier Distribution
Account, in an amount equal to the sum of the Applicable Monthly
Payments for each Mortgage Loan to the extent such amounts were
not received on such Mortgage Loan prior to 10:00 A.M. (New York
City time) on the Master Servicer Remittance Date (and therefore
are not included in the remittance described in the preceding
clause (ii)).
(c) The Master Servicer shall not be required or permitted to make an
advance for Deferred Interest, Default Interest, Prepayment Premiums or Balloon
Payments. The amount required to be advanced in respect of Applicable Monthly
Payments on Mortgage Loans that have been subject to an Appraisal Reduction
Event will equal (i) the amount required to be advanced by the Master Servicer,
without giving effect to such Appraisal Reduction Amounts less (ii) an amount
equal to the product of (x) the amount required to be advanced by the Master
Servicer in respect to delinquent payments of interest without giving effect to
such Appraisal Reduction Amounts, and (y) a fraction, the numerator of which is
the Appraisal Reduction Amount with respect to such Mortgage Loan and the
denominator of which is the Stated Principal Balance as of the last day of the
related Collection Period.
(d) Any amount advanced by the Master Servicer pursuant to Section
4.06(b)(iii) shall constitute a P&I Advance for all purposes of this Agreement
and the Master Servicer shall be entitled to reimbursement (with interest at the
Advance Rate to the extent provided herein) thereof to the full extent as
otherwise set forth in this Agreement.
(e) If as of 11:00 A.M., New York City time, on any Distribution Date the
Master Servicer shall not have made the P&I Advance required to have been made
on the related Master Servicer Remittance Date pursuant to Section 4.06(b)(iii),
the Trustee shall immediately notify the Fiscal Agent by telephone promptly
confirmed in writing, and the Trustee shall no later than 1:00 p.m., New York
City time, on such Business Day deposit into the Lower-Tier Distribution Account
in immediately available funds an amount equal to the P&I Advances otherwise
required to have been made by the Master Servicer. If the Trustee fails to make
any P&I Advance required to be made under this Section 4.06, the Fiscal Agent
shall make such P&I Advance not later than 2:00 p.m., New York City time, on
such Business Day in immediately available funds and, thereby, the Trustee shall
not be in default under this Agreement.
(f) None of the Master Servicer, the Trustee or the Fiscal Agent shall be
obligated to make a P&I Advance as to any Monthly Payment or Extended Monthly
Payment on any date on which a P&I Advance is otherwise required to be made by
this Section 4.06 if the Master Servicer, the Trustee or Fiscal Agent, as
applicable, determines that such advance will be a Nonrecoverable Advance. The
Master Servicer shall be required to provide notice to the Trustee and the
Fiscal Agent on or prior to the Master Servicer Remittance Date of any such
non-recoverability determination made on or prior to such date. The Trustee and
the Fiscal Agent shall be entitled to rely, conclusively, on any determination
by the Master Servicer that a P&I Advance, if made, would be a Nonrecoverable
Advance; provided, however, that if the Master Servicer has failed to make a P&I
Advance for reasons other than a determination by the Master Servicer that such
Advance would be a Nonrecoverable Advance, the Trustee or Fiscal Agent, as
applicable, shall make such advance within the time periods required by Section
4.06(e) unless the Trustee or the Fiscal Agent, in good faith, makes a
determination prior to the times specified in Section 4.06(e) that such advance
would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent, in
determining whether or not an Advance previously made is, or a proposed Advance,
if made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Master Servicer hereunder.
(g) The Master Servicer, the Trustee or the Fiscal Agent, as applicable,
shall be entitled to the reimbursement of P&I Advances it makes together with
any related Advance Interest Amount in respect of such P&I Advances, in each
case, to the extent permitted pursuant to Section 3.06(ii) of this Agreement and
the Master Servicer and Special Servicer hereby covenant and agree to promptly
seek and effect the reimbursement of such Advances from the related Borrowers to
the extent permitted by applicable law and the related Mortgage Loan.
SECTION 4.07. Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of (i)
the Default Interest, proceeds therefrom and the Class Q Distribution Account
and (ii) Deferred Interest, proceeds therefrom and the Deferred Interest
Distribution Account shall constitute, and that the affairs of the Trust Fund
(exclusive of the Trust REMICs) shall be conducted so as to qualify such portion
as, a "grantor trust" under the Code, and the provisions hereof shall be
interpreted consistently with this intention. In furtherance of such intention,
the Trustee shall furnish or cause to be furnished to Certificateholders and
shall file or cause to be filed with the IRS together with Form 1041 or such
other form as may be applicable, (i) to the Holders of the Class Q Certificates,
income with respect to their allocable share of Default Interest and the amount
of any interest paid on unreimbursed Advances to the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, therefrom
pursuant to Section 3.06(ii) at the time or times and in the manner required by
the Code and (ii) to the Holders of the Classes of Regular Certificates entitled
thereto as set forth in Section 2.06(b), income with respect to their allocable
share of Deferred Interest at the time or times and in the manner required by
the Code.
<PAGE>
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates consist of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class X Certificates, the Class B
Certificates, the Class C Certificates, the Class D Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class Q Certificates, the Class R Certificates and the Class
LR Certificates.
The Class A-1, Class A-2, Class A-3, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class Q, Class R and Class LR Certificates
will be substantially in the forms annexed hereto as Exhibits A-1 through A-14,
respectively. The Certificates of each Class (other than the Class Q, Class LR
and Class R Certificates) will be issuable in registered form only, in minimum
denominations of authorized initial Certificate Principal Amount or Notional
Amount, as applicable, as described in the succeeding table, and multiples of $1
in excess thereof. With respect to any Certificate or any beneficial interest in
a Certificate, the "Denomination" thereof shall be (i) the amount (A) set forth
on the face thereof or (B) in the case of any Global Certificate, set forth on a
schedule attached thereto or, in the case of any beneficial interest in a Global
Certificate, the product of the Percentage Interest represented by such
beneficial interest and the amount set forth on such schedule of the related
Global Certificate, (ii) expressed in terms of initial Certificate Principal
Amount or Notional Amount, as applicable, and (iii) in an authorized
denomination, as set forth below. With respect to the Class G and Class H
Certificates, on the Closing Date, the Trustee or the Authenticating Agent shall
execute and authenticate and the Certificate Registrar shall deliver (i) Rule
144A global Class G and Class H Certificates (the "Private Global Certificates")
in definitive, fully registered form without interest coupons, or (ii) one or
more, if any, Individual Certificates, in each case substantially in the form of
Exhibits A-10 and A-11 hereto, respectively. Each Certificate will share ratably
in all rights of the related Class. The Class Q, Class R and LR Certificates
will each be issuable in one or more Individual Certificates in minimum
denominations of 5% Percentage Interests and integral multiples of a 1%
Percentage Interest in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
Aggregate
Denominations
of all Certificates
Minimum of Class
Certificate Principal (in Initial Denomination or
Class Amount Notional Amount)
- ------ --------------------------- --------------------------
A-1 $ 10,000.00 $238,000,000
A-2 $ 10,000.00 $ 64,000,000
A-3 $ 10,000.00 $226,171,000
B $ 10,000.00 $ 22,636,000
C $ 10,000.00 $ 22,636,000
D $ 10,000.00 $ 45,271,000
E $ 10,000.00 $ 45,271,000
F $ 10,000.00 $ 41,500,000
G $ 10,000.00 $ 26,408,000
H $ 10,000.00 $ 22,638,157
X $ 100,000.00 $754,531,157
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above. The Global Certificates shall in
all respects be entitled to the same benefits under this Agreement as Individual
Certificates authenticated and delivered hereunder.
Except insofar as pertains to any Individual Certificate, the Trust Fund,
the Paying Agent and the Trustee may for all purposes (including the making of
payments due on the Global Certificates and the giving of notice to Holders
thereof) deal with the Depository as the authorized representative of the
Beneficial Owners with respect to the Global Certificates for the purposes of
exercising the rights of Certificateholders hereunder; provided, however, that,
for purposes of providing information pursuant to Section 3.20 or transmitting
communications pursuant to Section 5.05(a), to the extent that the Depositor has
provided the Trustee with the names of Beneficial Owners, the Trustee shall
provide such information to such Beneficial Owners directly. The rights of
Beneficial Owners with respect to Global Certificates shall be limited to those
established by law and agreements among such Beneficial Owners and the
Depository and Depository Participants. Except in the limited circumstances
described below, Beneficial Owners of Public Global Certificates shall not be
entitled to physical certificates for the Public Global Certificates as to which
they are the Beneficial Owners. Requests and directions from, and votes of, the
Depository as Holder of the Global Certificates shall not be deemed inconsistent
if they are made with respect to different Beneficial Owners. Subject to the
restrictions on transfer set forth in Section 5.02 and Applicable Procedures, a
Beneficial Owner of a Private Global Certificate may request that the Depositor,
or an agent thereof, cause the Depository (or any Agent Member) to notify the
Certificate Registrar and the Certificate Custodian in writing of a request for
transfer or exchange of such beneficial interest for an Individual Certificate
or Certificates. Upon receipt of such a request and payment by the related
Beneficial Owner of any attendant expenses, the Depositor shall cause the
issuance and delivery of such Individual Certificates. The Certificate Registrar
may establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and give notice to the Depository
of such record date. Without the written consent of the Depositor and the
Certificate Registrar, no Global Certificate may be transferred by the
Depository except to a successor Depository that agrees to hold the Global
Certificates for the account of the Beneficial Owners.
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 Global Certificates (i) shall be delivered by the Certificate Registrar to
the Depository or, pursuant to the Depository's instructions on behalf of the
Depository to, and deposited with, the Certificate Custodian, and in either case
shall be registered in the name of Cede & Co. and (ii) shall bear a legend
substantially to the following effect:
"Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
The Global Certificates may be deposited with such other Depository as the
Certificate Registrar may from time to time designate, and shall bear such
legend as may be appropriate.
If (i) the Depository advises the Trustee in writing that the Depository is
no longer willing, qualified or able properly to discharge its responsibilities
as Depository, and the Depositor is unable to locate a qualified successor, (ii)
the Depositor or the Trustee, at its sole option, elects to terminate the
book-entry system through the Depository with respect to all or any portion of
any Class of Certificates or (iii) after the occurrence of an Event of Default,
Beneficial Owners owning not less than a majority in Certificate Principal
Amount or Notional Amount, as applicable, of the Global Certificate for any
Class then outstanding advise the Depository through Depository Participants in
writing that the continuation of a book-entry system through the Depository is
no longer in the best interest of the Beneficial Owner or Owners of such Global
Certificate, the Trustee shall notify the affected Beneficial Owners through the
Depository of the occurrence of such event and the availability of Individual
Certificates to such Beneficial Owner or Owners requesting them. Upon surrender
to the Trustee of Global Certificates by the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Trustee shall issue the Individual Certificates. Neither the Trustee, the Fiscal
Agent, the Certificate Registrar, the Master Servicer, the Special Servicer nor
the Depositor shall be liable for any actions taken by the Depository or its
nominee, including, without limitation, any delay in delivery of such
instructions. Upon the issuance of Individual Certificates, the Trustee, the
Fiscal Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer, and the Depositor shall recognize the Holders of Individual
Certificates as Certificateholders hereunder.
If the Trustee, its agents or the Master Servicer or Special Servicer has
instituted or has been directed to institute any judicial proceeding in a court
to enforce the rights of the Certificateholders under the Certificates, and the
Trustee, the Master Servicer or the Special Servicer has been advised by counsel
that in connection with such proceeding it is necessary or appropriate for the
Trustee, the Master Servicer or the Special Servicer to obtain possession of the
Certificates, the Trustee, the Master Servicer or the Special Servicer may in
its sole discretion determine that the Certificates represented by the Global
Certificates shall no longer be represented by such Global Certificates. In such
event, the Trustee or the Authenticating Agent will execute and authenticate and
the Certificate Registrar will deliver, in exchange for such Global
Certificates, Individual Certificates (and if the Trustee or the Certificate
Custodian has in its possession Individual Certificates previously executed, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver such Certificates) in a Denomination equal to the aggregate Denomination
of such Global Certificates.
If the Trust Fund ceases to be subject to Section 13 or 15(d) of the
Exchange Act, the Trustee shall make available to each Holder of a Class G,
Class H, Class Q, Class R or Class LR Certificate, upon request of such a
Holder, information substantially equivalent in scope to the information
currently filed by the Master Servicer and/or the Trustee with the Commission
pursuant to the Exchange Act, plus such additional information required to be
provided for securities qualifying for resales under Rule 144A under the Act
which information shall be provided on a timely basis to the Trustee by the
Master Servicer.
Each Certificate may be printed or in typewritten or similar form, and each
Certificate shall, upon original issue, be executed and authenticated by the
Trustee or the Authenticating Agent and delivered to the Depositor. All
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee or Authenticating Agent by an authorized officer or signatory.
Certificates bearing the signature of an individual who was at any time the
proper officer or signatory of the Trustee or Authenticating Agent shall bind
the Trustee or Authenticating Agent, notwithstanding that such individual has
ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-16 executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at the Corporate Trust
Office books (the "Certificate Register") for the registration, transfer and
exchange of Certificates (the Trustee, in such capacity, being the "Certificate
Registrar"). The names and addresses of all Certificateholders and the names and
addresses of the transferees of any Certificates shall be registered in the
Certificate Register; provided, however, in no event shall the Certificate
Registrar be required to maintain in the Certificate Register the names of the
individual participants holding beneficial interests in the Trust Fund through
the Depository. The Person in whose name any Certificate is so registered shall
be deemed and treated as the sole owner and Holder thereof for all purposes of
this Agreement and the Certificate Registrar, the Master Servicer, the Trustee,
any Paying Agent and any agent of any of them shall not be affected by any
notice or knowledge to the contrary. An Individual Certificate is transferable
or exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
applicable requirements of this Section 5.02. Upon request of the Trustee, the
Certificate Registrar shall provide the Trustee with the names, addresses and
Percentage Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the applicable requirements of this Section 5.02, the
Trustee shall execute and the Authenticating Agent shall duly authenticate in
the name of the designated transferee or transferees, one or more new
Certificates in Denominations of a like aggregate Denomination as the Individual
Certificate being surrendered. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e). Each Certificate
surrendered for registration of transfer shall be canceled and subsequently
destroyed by the Certificate Registrar. Each new Certificate issued pursuant to
this Section 5.02 shall be registered in the name of any Person as the
transferring Holder may request, subject to the applicable provisions of this
Section 5.02.
(c) In addition to the applicable provisions of this Section 5.02 and the
rules of the Depository, the exchange, transfer and registration of transfer of
Individual Certificates or beneficial interests in the Private Global
Certificates shall be subject to the following restrictions.
(i) Transfers between Holders of Individual Certificates. With
respect to the transfer and registration of transfer of an
Individual Certificate representing an interest in the Class G,
Class H, Class Q, Class R or Class LR Certificates to a
transferee that takes delivery in the form of an Individual
Certificate:
(A) The Certificate Registrar shall register the transfer of an
Individual Certificate if the requested transfer is being
made by a transferee who has provided the Certificate
Registrar with an Investment Representation Letter
substantially in the form of Exhibit D-1 hereto (an
"Investment Representation Letter"), to the effect that the
transfer is being made to a Qualified Institutional Buyer in
accordance with Rule 144A; and
(B) The Certificate Registrar shall register the transfer of an
Individual Certificate (other than a Residual Certificate)
if prior to the transfer such transferee furnishes to the
Certificate Registrar (a) an Investment Representation
Letter to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an
applicable exemption under the Act, (b) an opinion of
counsel acceptable to the Certificate Registrar that such
transfer is in compliance with the Act and (c) the
Certificate Registrar shall register the transfer of an
Individual Certificate only if prior to the transfer the
transferee furnishes to the Certificate Registrar a written
undertaking by the transferor to reimburse the Trust for any
costs incurred by it in connection with the proposed
transfer;
(ii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global
Certificate to a transferee wishing to take delivery in the form
of an Individual Certificate will require the transferee to take
delivery subject to the restrictions on the transfer of such
Individual Certificate described on the face of such Certificate,
and such transferee agrees that it will transfer such Individual
Certificate only as provided therein and herein. No such transfer
shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with
this Section 5.02(c)(ii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will
require delivery in the form of an Individual Certificate
and the Certificate Registrar shall register such transfer
only upon compliance with the provisions of Section
5.02(c)(i)(B).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer wishing to
take delivery in the form of an Individual Certificate will
be registered by the Certificate Registrar only upon
compliance with the provisions of Sections 5.02(c)(i)(A).
(C) Upon acceptance for exchange or transfer of a beneficial
interest in a Private Global Certificate for an Individual
Certificate, as provided herein, the Certificate Registrar
shall endorse on the schedule affixed to the related Private
Global Certificate (or on a continuation of such schedule
affixed to such Private Global Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of
such Private Global Certificate equal to the Denomination of
such Individual Certificate issued in exchange therefor or
upon transfer thereof. Unless determined otherwise by the
Certificate Registrar in accordance with applicable law, an
Individual Certificate issued upon transfer of or exchange
for a beneficial interest in the Private Global Certificate
shall bear the Securities Legend.
(iii) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual Certificate wishes at
any time to transfer such Certificate to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
related Private Global Certificate, such transfer may be effected
only in accordance with all applicable rules and procedures of
the Depository applicable to transfers by their respective
participants (the "Applicable Procedures"), and this Section
5.02(c)(iii). Upon receipt by the Certificate Registrar at the
Corporate Trust Office of (1) the Individual Certificate to be
transferred with an assignment and transfer pursuant to Section
5.02(a), (2) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the
Certificate Registrar to credit or cause to be credited to
another specified Agent Member's account a beneficial interest in
such Private Global Certificate, as the case may be, in an amount
equal to the Denomination of the Individual Certificate to be so
transferred, (3) a written order given in accordance with the
Applicable Procedures containing information regarding the
account of the Agent Member to be credited with such beneficial
interest, and (4) an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified
Institutional Buyer, the Certificate Registrar shall cancel such
Individual Certificate, execute and deliver a new Individual
Certificate for the Denomination of the Individual Certificate
not so transferred, registered in the name of the Holder, and the
Certificate Registrar shall instruct the Depository or the
Certificate Custodian, as applicable, to increase the
Denomination of the Private Global Certificate, as the case may
be, by the Denomination of the Individual Certificate to be so
transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions a corresponding
Denomination of the Private Global Certificate.
It is the intent of the foregoing that under no circumstances may
an Institutional Accredited Investor that is not a Qualified
Institutional Buyer take delivery in the form of a beneficial
interest in a Private Global Certificate.
(iv) All Transfers. An exchange of a beneficial interest in a Private
Global Certificate for an Individual Certificate or Certificates,
an exchange of an Individual Certificate or Certificates for a
beneficial interest in the Private Global Certificate and an
exchange of an Individual Certificate or Certificates for another
Individual Certificate or Certificates (in each case, whether or
not such exchange is made in anticipation of subsequent transfer,
and in the case of the Private Global Certificates, so long as
the Private Global Certificates remain outstanding and are held
by or on behalf of the Depository), may be made only in
accordance with this Section 5.02 and in accordance with the
rules of the Depository and Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or replacement
of Certificates not bearing the Securities Legend, the Certificates so issued
shall not bear the Securities Legend. If Certificates are issued upon the
transfer, exchange or replacement of Certificates bearing the Securities Legend,
or if a request is made to remove the Securities Legend on a Certificate, the
Certificates so issued shall bear the Securities Legend, or the Securities
Legend shall not be removed, as the case may be, unless there is delivered to
the Certificate Registrar such satisfactory evidence, which may include an
opinion of counsel (at the expense of the party requesting the removal of such
legend) familiar with United States securities laws, as may be reasonably
required by the Certificate Registrar, that neither the Securities Legend nor
the restrictions on transfers set forth therein are required to ensure that
transfers of any Certificate comply with the provisions of Rule 144A or Rule 144
under the Act or that such Certificate is not a "restricted security" within the
meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence,
the Certificate Registrar shall execute and deliver a Certificate that does not
bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the Holder of any Individual Certificate may transfer or exchange
the same in whole or in part (with a Denomination equal to any authorized
Denomination) by surrendering such Certificate at the Corporate Trust Office or
at the office of any transfer agent appointed as provided under this Agreement,
together with an instrument of assignment or transfer (executed by the Holder or
its duly authorized attorney), in the case of transfer, and a written request
for exchange in the case of exchange. Following a proper request for transfer or
exchange, the Certificate Registrar shall, within five Business Days of such
request if made at such Corporate Trust Office, or within ten Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at the Corporate Trust Office or at the office of such
transfer agent, as the case may be, to the transferee (in the case of transfer)
or Holder (in the case of exchange) or send by first class mail (at the risk of
the transferee in the case of transfer or Holder in the case of exchange) to
such address as the transferee or Holder, as applicable, may request, an
Individual Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the Corporate Trust Office or at
the office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual Certificate issued
in exchange for a beneficial interest in a Public Global Certificate pursuant to
Section 5.01) or a beneficial interest in a Private Global Certificate may only
be transferred to Eligible Investors in accordance with the provisions set forth
herein. In the event that a Responsible Officer of the Certificate Registrar
becomes aware that such an Individual Certificate or beneficial interest in a
Private Global Certificate is being held by or for the benefit of a Person who
is not an Eligible Investor, or that such holding is unlawful under the laws of
a relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Individual Certificate or beneficial interest in a Private
Global Certificate to an Eligible Investor within fourteen days after notice of
such determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding transfer and
exchange, transfers of the Global Certificates shall be limited to transfers of
such Global Certificates in whole, but not in part, to nominees of the
Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in this Section 5.02 other than for transfers to Institutional Accredited
Investors, as provided herein. In connection with any transfer to a transferee
that is not a QIB, the transferor shall reimburse the Trust Fund for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided herein) incurred by the Certificate
Registrar in connection with such transfer. The Certificate Registrar may
require payment by each transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer.
(i) The Certificate Registrar may as a condition of the registration of any
transfer of the Class G, Class H, Class Q, Class R and Class LR Certificates
require the transferor to furnish other certifications, legal opinions or other
information (at the transferor's expense) as it may reasonably require to
confirm that the proposed transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of the Act and
other applicable laws.
(j) Neither the Depositor, the Master Servicer, the Trustee nor the
Certificate Registrar is obligated to register or qualify the Class G, Class H,
Class Q, Class R or Class LR Certificates under the Act or any other securities
law or to take any action not otherwise required under this Agreement to permit
the transfer of such Certificates without registration or qualification. Any
such Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Depositor, the Master Servicer, the Trustee and the
Certificate Registrar against any loss, liability or expense that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
(k) No transfer of any Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class Q, Class R or Class LR Certificate (each, a "Restricted
Certificate") shall be made to (i) an employee benefit plan or other retirement
arrangement, including an individual retirement account or a Keogh plan, which
is subject to Title I of ERISA or Section 4975 of the Code, or a governmental
plan (as defined in Section 3(32) of ERISA) that is subject to any federal,
state or local law ("Similar Law") which is, to a material extent, similar to
the foregoing provisions of ERISA or the Code (each, a "Plan") or (ii) a
collective investment fund in which such Plans are invested, an insurance
company that is using assets of separate accounts or general accounts which
include assets of Plans (or which are deemed pursuant to ERISA or Similar Law to
include assets of Plans) or other Person acting on behalf of any such Plan or
using the assets of any such Plan to acquire any such Restricted Certificate,
other than (with respect to any transfer of a Restricted Certificate that is a
Subordinated Certificate) an insurance company investing the assets of its
general account under circumstances whereby the purchase and holding of such
Restricted Certificate by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and Section 4975 of the Code under
Prohibited Transaction Class Exemption 95-60. Each prospective transferee of a
Restricted Certificate that takes the form of an Individual Certificate shall
either (1) deliver to the Depositor, the Certificate Registrar and the Trustee a
representation letter, substantially in the form of Exhibit D-2 hereto, stating
that the prospective transferee is not a Person referred to in (i) or (ii) above
or (2) in the event the transferee is such a Person, except in the case of a
Residual Certificate, which may not be transferred unless the transferee
represents it is not such a Person, the prospective transferee shall provide to
the Depositor, the Trustee and the Certificate Registrar an opinion of counsel
which establishes to the satisfaction of the Depositor, the Trustee and the
Certificate Registrar that the purchase or holding of the Restricted
Certificates by or on behalf of a Plan will not result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to Title I of ERISA,
Section 4975 of the Code or Similar Law, will not constitute or result in a
prohibited transaction within the meaning of ERISA or Section 4975 of the Code,
or a materially similar characterization under any Similar Law, and will not
subject the Master Servicer, the Special Servicer, the Depositor, the Trustee or
the Certificate Registrar to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any Similar Law) in
addition to those set forth in this Agreement, which opinion of counsel shall
not be an expense of the Trustee, the Trust Fund, the Master Servicer, the
Special Servicer, the Certificate Registrar or the Depositor. The Certificate
Registrar shall not register the transfer of an Individual Certificate that is a
Restricted Certificate unless the transferee has provided the representation
letter or opinion of counsel referred to in the preceding sentence. The
transferee of a beneficial interest in a Global Certificate that is a Restricted
Certificate shall be deemed to represent that it is not a Person referred to in
(i) or (ii) above. Any transfer of a Restricted Certificate that would result in
a prohibited transaction under ERISA or Section 4975 of the Code, or a
materially similar characterization under any Similar Law, shall be deemed
absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall be deemed
by the acceptance or acquisition of such Ownership Interest to have agreed to be
bound by the following provisions and the rights of each Person acquiring any
Ownership Interest are expressly subject to the following provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be
a Permitted Transferee and shall not acquire or hold such
Ownership Interest as agent (including a broker, nominee or other
middleman) on behalf of any Person that is not a Permitted
Transferee. Any such Person shall promptly notify the Certificate
Registrar of any change or impending change in its status (or the
status of the beneficial owner of such Ownership Interest) as a
Permitted Transferee. Any acquisition described in the first
sentence of this Section 5.02(l) by a Person who is not a
Permitted Transferee or by a Person who is acting as an agent of
a Person who is not a Permitted Transferee shall be void and of
no effect, and the immediately preceding owner who was a
Permitted Transferee shall be restored to registered and
beneficial ownership of the Ownership Interest as fully as
possible.
(ii) No Ownership Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the
express written consent of the Certificate Registrar, and the
Certificate Registrar shall not recognize the Transfer, and such
proposed Transfer shall not be effective, without such consent
with respect thereto. In connection with any proposed Transfer of
any Ownership Interest, the Certificate Registrar shall, as a
condition to such consent, (x) require delivery to it in form and
substance satisfactory to it, and the proposed transferee shall
deliver to the Certificate Registrar and to the proposed
transferor an affidavit in substantially the form attached as
Exhibit C-1 (a "Transferee Affidavit") of the proposed transferee
(A) that such proposed transferee is a Permitted Transferee and
(B) stating that (i) the proposed transferee historically has
paid its debts as they have come due and intends to do so in the
future, (ii) the proposed transferee understands that, as the
holder of an Ownership Interest, it may incur liabilities in
excess of cash flows generated by the residual interest, (iii)
the proposed transferee intends to pay taxes associated with
holding the Ownership Interest as they become due, (iv) the
proposed transferee will not transfer the Ownership Interest to
any Person that does not provide a Transferee Affidavit or as to
which the proposed transferee has actual knowledge that such
Person is not a Permitted Transferee or is acting as an agent
(including a broker, nominee or other middleman) for a Person
that is not a Permitted Transferee, and (v) the proposed
transferee expressly agrees to be bound by and to abide by the
provisions of this Section 5.02(e) and (y) other than in
connection with the initial issuance of the Class R and Class LR
Certificates, require a statement from the proposed transferor
substantially in the form attached as Exhibit C-2 (the
"Transferor Letter"), that the proposed transferor has no actual
knowledge that the proposed transferee is not a Permitted
Transferee and has no actual knowledge or reason to know that the
proposed transferee's statements in the preceding clauses
(x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible
Officer of the Certificate Registrar has actual knowledge that
the proposed transferee is not a Permitted Transferee, no
Transfer to such proposed transferee shall be effected and such
proposed Transfer shall not be registered on the Certificate
Register; provided, however, that the Certificate Registrar shall
not be required to conduct any independent investigation to
determine whether a proposed transferee is a Permitted
Transferee. Upon notice to the Certificate Registrar that there
has occurred a Transfer to any Person that is a Disqualified
Organization or an agent thereof (including a broker, nominee, or
middleman) in contravention of the foregoing restrictions, and in
any event not later than 60 days after a request for information
from the transferor of such Ownership Interest, or such agent,
the Certificate Registrar and the Trustee agree to furnish to the
IRS and the transferor of such Ownership Interest or such agent
such information necessary to the application of Section 860E(e)
of the Code as may be required by the Code, including, but not
limited to, the present value of the total anticipated excess
inclusions with respect to such Class R or Class LR Certificate
(or portion thereof) for periods after such Transfer. At the
election of the Certificate Registrar and the Trustee, the
Certificate Registrar and the Trustee may charge a reasonable fee
for computing and furnishing such information to the transferor
or to such agent referred to above; provided, however, that such
Persons shall in no event be excused from furnishing such
information.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee and the Master Servicer harmless, then, in the absence
of actual knowledge by a Responsible Officer of the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a paying agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Master Servicer, to
execute and deliver to the Master Servicer and the Trustee an instrument in
which such Paying Agent shall agree with the Master Servicer and the Trustee
that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums have been paid to the Certificateholders or disposed of
as otherwise provided herein. The initial Paying Agent shall be the Trustee.
Except for LaSalle National Bank, as the initial Paying Agent, the Paying Agent
shall at all times be an entity having a long-term unsecured debt rating of at
least "AA" by Fitch and S&P and "Aa2" by Moody's, or shall be otherwise
acceptable to each Rating Agency.
SECTION 5.05. Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder (for purposes of this Section 5.05, an
"Applicant") applies in writing to the Certificate Registrar, and such
application states that the Applicant desires to communicate with other
Certificateholders, the Certificate Registrar shall furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date, at the expense of the
Applicant.
(b) Every Certificateholder, by receiving and holding its Certificate,
agrees with the Trustee that the Trustee and the Certificate Registrar shall not
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06. Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when required, to the Depositor or the Master
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee, the Depositor and the Master Servicer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Trustee, the Depositor or the Master Servicer in reliance thereon, whether or
not notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional proof
of any matter referred to in this Section 5.06 as it shall deem necessary.
SECTION 5.07. Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Depositor and must be a corporation organized and doing business under the laws
of the United States of America or any state, having a principal office and
place of business in a state and city acceptable to the Depositor, having a
combined capital and surplus of at least $15,000,000, authorized under such laws
to do a trust business and subject to supervision or examination by federal or
state authorities. The Trustee shall serve as the initial Authenticating Agent
and the Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee and the Depositor. The
Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 5.07, the Trustee promptly shall
appoint a successor Authenticating Agent, which shall be acceptable to the
Depositor, and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 5.07.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee. Any compensation
paid to the Authenticating Agent shall be an unreimbursable expense of the
Trustee.
SECTION 5.08. Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee, by entering into a Custodial
Agreement. The Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000, shall have a long-term
debt rating of at least "BBB" from Fitch and S&P and "Baa2" from Moody's, unless
the Trustee shall have received prior written confirmation from each Rating
Agency that the appointment of such Custodian would not cause such Rating Agency
to withdraw, qualify or downgrade any of its then-current ratings on the
Certificates, and shall be qualified to do business in the jurisdiction in which
it holds any Mortgage File. Each Custodial Agreement may be amended only as
provided in Section 10.07. Any compensation paid to the Custodian shall be an
unreimbursable expense of the Trustee. The Trustee shall serve as the initial
Custodian. The Custodian, if the Custodian is not the Trustee, shall maintain a
fidelity bond in the form and amount that are customary for securitizations
similar to the securitization evidenced by this Agreement, with the Trustee
named as loss payee. The Custodian shall be deemed to have complied with this
provision if one of its respective Affiliates has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Custodian. In addition, the Custodian shall keep in force during
the term of this Agreement a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its obligations hereunder in the form and amount that are
customary for securitizations similar to the securitization evidenced by this
Agreement, with the Trustee named as loss payee. All fidelity bonds and policies
of errors and omissions insurance obtained under this Section 5.08 shall be
issued by a Qualified Insurer, or by any other insurer, that, as confirmed by
each Rating Agency in writing to the Trustee, would not in and of itself result
in the downgrade, withdrawal or qualification of any of the ratings assigned to
any Class of Certificates.
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer
and the Special Servicer.
The Depositor, the Master Servicer and the Special Servicer each shall be
liable in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement. Each of the Master Servicer and the Special Servicer
shall indemnify the Depositor, and any employee, director or officer of the
Depositor, and the Trust Fund and hold the Depositor and any employee, director
or officer of the Depositor, and the Trust Fund harmless against any loss,
liability or expense incurred by such parties (i) in connection with any willful
misconduct, bad faith, fraud or negligence in the performance of duties of the
Master Servicer or the Special Servicer, as the case may be, or by reason of
negligent disregard of the Master Servicer's or Special Servicer's, as the case
may be, obligations or duties hereunder, or (ii) as a result of the breach by
the Master Servicer or the Special Servicer, as the case may be, of any of its
representations or warranties contained herein.
SECTION 6.02. Merger or Consolidation of the Master Servicer.
Subject to the following paragraph, the Master Servicer will keep in full
effect its existence, rights and good standing as a corporation under the laws
of the State of California and will not jeopardize its ability to do business in
each jurisdiction in which the Mortgaged Properties are located or to protect
the validity and enforceability of this Agreement, the Certificates or any of
the Mortgage Loans and to perform its respective duties under this Agreement.
The Master Servicer may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets to any Person, in which case
any Person resulting from any merger or consolidation to which it shall be a
party, or any Person succeeding to its business, shall be the successor of the
Master Servicer hereunder, and shall be deemed to have assumed all of the
liabilities of the Master Servicer hereunder, if each of the Rating Agencies has
confirmed in writing that such merger or consolidation or transfer of assets and
succession, in and of itself, will not cause a downgrade, qualification or
withdrawal of the then current ratings assigned by such Rating Agency to any
Class of Certificates.
SECTION 6.03. Limitation on Liability of the Depositor,
the Master Servicer and Others.
Subject to Section 6.01, neither the Depositor, the Master Servicer, the
Special Servicer nor any of the directors, officers, employees or agents of the
Depositor or the Master Servicer or the Special Servicer shall be under any
liability to the Trust Fund or 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 this provision
shall not protect the Depositor or the Master Servicer or the Special Servicer
or any such Person against liability which would be imposed by reason of (i) any
breach of warranty or representation, or other specific liability provided
herein, with respect to such respective party or (ii) any willful misconduct,
bad faith, fraud or negligence in the performance of duties or by reason of
reckless disregard of obligations or duties hereunder with respect to such
respective party. The Depositor, the Master Servicer, the Special Servicer and
any director, officer, employee or agent of the Depositor, the Master Servicer
or the Special Servicer may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any appropriate Person
respecting any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and any director, officer, employee or agent of the
Depositor or the Master Servicer or the Special Servicer shall be indemnified
and held harmless by the Trust Fund against any loss, liability or expense
incurred in connection with, or relating to, this Agreement or the Certificates,
other than any loss, liability or expense (including legal fees and expenses)
(i) incurred by reason of willful misconduct, bad faith, fraud or negligence in
the performance of duties hereunder or by reason of reckless disregard of
obligations or duties hereunder, in each case by the Person being indemnified;
(ii) imposed by any taxing authority if such loss, liability or expense is not
specifically reimbursable pursuant to the terms of this Agreement or (iii) with
respect to any such party, resulting from the breach by such party of any of its
representations or warranties contained herein. Neither the Depositor nor the
Master Servicer nor the Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and in its opinion does not expose it to
any expense or liability; provided, however, that the Depositor or the Master
Servicer or the Special Servicer may in its discretion undertake any such action
related to its obligations hereunder which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, the Master
Servicer and the Special Servicer shall be entitled to be reimbursed therefor
from the Collection Account as provided in Section 3.06 of this Agreement.
SECTION 6.04. Limitation on Resignation of the Master
Servicer or Special Servicer.
(a) Each of the Master Servicer and the Special Servicer may assign its
respective rights and delegate its respective duties and obligations under this
Agreement, provided that: (i) the purchaser or transferee accepting such
assignment and delegation (A) shall be satisfactory to the Trustee and to the
Depositor, (B) shall be an established mortgage finance institution, bank or
mortgage servicing institution, organized and doing business under the laws of
any state of the United States or the District of Columbia, authorized under
such laws to perform the duties of a servicer of mortgage loans or a Person
resulting from a merger, consolidation or succession that is permitted under
Section 6.02, and (C) shall execute and deliver to the Trustee an agreement, in
form and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Master Servicer
or the Special Servicer, as the case may be, under this Agreement from and after
the date of such agreement; (ii) as confirmed by a letter from each Rating
Agency delivered to the Trustee, each Rating Agency's rating or ratings of the
Regular Certificates in effect immediately prior to such assignment, sale,
transfer or delegation will not be qualified, downgraded or withdrawn as a
result of such assignment, sale, transfer or delegation; (iii) the Master
Servicer or the Special Servicer shall not be released from its obligations
under this Agreement that arose prior to the effective date of such assignment
and delegation under this Section 6.04; and (iv) the rate at which the Servicing
Fee or Special Servicing Compensation, as applicable (or any component thereof)
is calculated shall not exceed the rate then in effect. Upon acceptance of such
assignment and delegation, the purchaser or transferee shall be the successor
Master Servicer or Special Servicer, as applicable, hereunder.
(b) Except as provided in this Section 6.04, the Master Servicer and the
Special Servicer shall not resign from their respective obligations and duties
hereby imposed on them except upon determination that such duties hereunder are
no longer permissible under applicable law. Any such determination permitting
the resignation of the Master Servicer or the Special Servicer, as applicable,
shall be evidenced by an Opinion of Counsel (obtained at the resigning Master
Servicer's or Special Servicer's expense) to such effect delivered to the
Trustee.
No resignation or removal of the Master Servicer or the Special Servicer as
contemplated herein shall become effective until the Trustee or a successor
Master Servicer or Special Servicer shall have assumed the Master Servicer's or
the Special Servicer's responsibilities, duties, liabilities and obligations
hereunder. If no successor Master Servicer or Special Servicer can be obtained
to perform such obligations for the same compensation to which the terminated
Master Servicer or Special Servicer would have been entitled, additional amounts
payable to such successor Master Servicer or Special Servicer shall be treated
as Realized Losses.
SECTION 6.05. Rights of the Depositor and the Trustee
in Respect of the Master Servicer and Special Servicer.
The Master Servicer and the Special Servicer shall afford the Depositor,
the Trustee and the Rating Agencies, upon reasonable notice, during normal
business hours access to all records maintained by it in respect of its rights
and obligations hereunder and access to its officers responsible for such
obligations. Upon request, the Master Servicer and the Special Servicer shall
furnish to the Depositor, the Master Servicer, the Special Servicer and the
Trustee its most recent annual financial statements and such other information
in its possession regarding its business, affairs, property and condition,
financial or otherwise as the party requesting such information, in its
reasonable judgment, determines to be relevant to the performance of the
obligations hereunder of the Master Servicer and the Special Servicer. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer or the Special Servicer hereunder which are in default and may, but is
not obligated to, perform, or cause a designee to perform, any defaulted
obligation of such Person hereunder or exercise its rights hereunder, provided
that the Master Servicer and the Special Servicer shall not be relieved of any
of their obligations hereunder by virtue of such performance by the Depositor or
its designee. In the event the Depositor or its designee undertakes any such
action it will be reimbursed by the Trust Fund from the Collection Account as
provided in Section 3.06 and Section 6.03 hereof to the extent not recoverable
from the Master Servicer or Special Servicer, as applicable. Neither the
Depositor nor the Trustee and neither the Master Servicer, with respect to the
Special Servicer, nor the Special Servicer, with respect to the Master Servicer,
shall have any responsibility or liability for any action or failure to act by
the Master Servicer or the Special Servicer and neither such Person is obligated
to monitor or supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Neither the Master Servicer nor the Special Servicer shall be under any
obligation to disclose confidential or proprietary information pursuant to this
Section.
SECTION 6.06. Master Servicer or Special Servicer
as Owner of a Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder (or with
respect to a Global Certificate, Beneficial Owner) of any Certificate with the
same rights it would have if it were not the Master Servicer or the Special
Servicer or an Affiliate thereof, except as otherwise expressly provided herein.
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 or
Beneficial Owner of any Certificate, the Master Servicer or the Special Servicer
proposes to take action (including for this purpose, omitting to take action)
that (i) is not expressly prohibited by the terms hereof and would not, in the
Master Servicer's or the Special Servicer's good faith judgment, violate the
Servicing Standard, and (ii) if taken, might nonetheless, in the Master
Servicer's or the Special Servicer's good faith judgment, be considered by other
Persons to violate the Servicing Standard, the Master Servicer or the Special
Servicer may seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (i) states that it is delivered
pursuant to this Section 6.06, (ii) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, and
(iii) describes in reasonable detail the action that the Master Servicer or the
Special Servicer 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 such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have consented in writing to the
proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice, such action shall
be deemed to comply with the Servicing Standard. The Trustee shall be entitled
to reimbursement from the Master Servicer or the Special Servicer, as
applicable, of the reasonable expenses of the Trustee incurred pursuant to this
paragraph. It is not the intent of the foregoing provision that the Master
Servicer or the Special Servicer be permitted to invoke the procedure set forth
herein with respect to routine servicing matters arising hereunder, except in
the case of unusual circumstances.
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Master Servicer Event of Default", wherever used herein, means any one
of the following events:
(i) any failure by the Master Servicer to remit to the Collection
Account or any failure by the Master Servicer to remit to the
Trustee for deposit into the Lower-Tier Distribution Account,
Upper-Tier Distribution Account, Deferred Interest Distribution
Account or the Class Q Distribution Account, any amount required
to be so remitted by the Master Servicer (including a P&I
Advance) pursuant to, and at the time specified by the terms of
this Agreement, which failure is not remedied by 11:00 a.m., New
York City time, on the related Distribution Date (provided,
however, that the Master Servicer will pay the Trustee interest
on such late payment at the prime rate until such late payment is
received by the Trustee);
(ii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any of its other covenants or
agreements, or the material breach of its representations or
warranties on the part of the Master Servicer contained in this
Agreement, which continues unremedied for a period of 30 days
after the date on which written notice of such failure or breach,
requiring the same to be remedied, shall have been given to the
Master Servicer by the Depositor or the Trustee, or to the Master
Servicer, the Depositor and the Trustee by the Holders of
Certificates evidencing Percentage Interests of at least 25% of
any Class affected thereby; provided that if such default is not
capable of being cured within such 30 day period and the Master
Servicer is diligently pursuing such cure, the Master Servicer
shall be entitled to an additional 30 day period; provided
further that the failure of the Master Servicer to perform any
covenant or agreement contained herein (other than as provided in
clause (i) above) as a result of an inconsistency between this
Agreement and any Loan Document shall not be a Master Servicer
Event of Default hereunder;
(iii) confirmation in writing by any Rating Agency that not terminating
the Master Servicer would, in and of itself, cause the
then-current rating assigned to any Class of Certificates to be
qualified, withdrawn, or downgraded;
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60
days;
(v) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the Master Servicer, or of
or relating to all or substantially all of its property;
(vi) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(vii) the Master Servicer shall fail to make any Property Advance
required to be made by the Master Servicer hereunder (whether or
not the Trustee or the Fiscal Agent makes such Property Advance),
which failure continues unremedied for a period of fifteen (15)
days after the date on which such Advance was first due (or for
any shorter period as may be required, if applicable, to avoid
any lapse in insurance coverage required under any Mortgage or
this Agreement with respect to any Mortgaged Property or to avoid
any foreclosure or similar action with respect to any Mortgaged
Property by reason of a failure to pay real estate taxes and
assessments); provided, however, that in the event the Trustee or
the Fiscal Agent makes a required Property Advance pursuant to
Section 3.22(b) due to the Master Servicer's failure to make a
required Property Advance, such Event of Default shall occur
immediately upon the making of such Property Advance by the
Trustee or the Fiscal Agent;
then, and in each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Master Servicer.
In the event that the Master Servicer is also the Special Servicer and the
Master Servicer is terminated as provided in this Section 7.01, the Master
Servicer shall also be terminated as Special Servicer.
(b) "Special Servicer Event of Default", wherever used herein, means any
one of the following events:
(i) any failure by the Special Servicer to remit to the Collection
Account any amount required to be so deposited by the Special
Servicer pursuant to, and at the time specified, and in
accordance with the terms of this Agreement;
(ii) any failure on the part of the Special Servicer duly to observe
or perform in any material respect any other of the covenants or
agreements, or the material breach of any representations or
warranties on the part of the Special Servicer contained in this
Agreement, which continues unremedied for a period of 30 days
after the date on which written notice of such failure or breach,
requiring the same to be remedied, shall have been given to the
Special Servicer by the Master Servicer, the Depositor, the
Trustee or by the Holders of Certificates evidencing Percentage
Interests of at least 25% of any Class affected thereby;
(iii) confirmation in writing by any Rating Agency that failure to
remove the Special Servicer would, in and of itself, cause a
downgrade, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates;
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60
days;
(v) the Special Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the Special Servicer, or of
or relating to all or substantially all of its property; or
(vi) the Special Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer.
(c) In the event that the Master Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee shall, by notice in
writing to the Master Servicer or the Special Servicer, as the case may be (the
"Terminated Party"), terminate all of its rights and obligations (but not the
liabilities for actions and omissions occurring prior hereto) of the Terminated
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof, other than any rights the Terminated Party may have hereunder as a
Certificateholder and any rights or obligations that accrued prior to the date
of such termination (including the right to receive all amounts accrued or owing
to it under this Agreement, plus interest at the Advance Rate on such amounts
until received to the extent such amounts bear interest as provided in this
Agreement, with respect to periods prior to the date of such termination and the
right to the benefits of Section 6.03 notwithstanding any such termination). On
or after the receipt by the Terminated Party of such written notice, all of its
authority and power under this Agreement, whether with respect to the
Certificates (except that the Terminated Party shall retain its rights as a
Certificateholder in the event and to the extent that it is a Certificateholder)
or the Mortgage Loans or otherwise, shall pass to and be vested in the 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 Terminated Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agrees that, in the event it is terminated pursuant to
this Section 7.01, it shall promptly (and in any event no later than ten
Business Days subsequent to such notice) provide, at its own expense, the
Trustee or a successor Master Servicer or successor Special Servicer, as
applicable, with all documents and records requested by the Trustee or such
successor Master Servicer or successor Special Servicer, as applicable, to
enable the Trustee or such successor Master Servicer or successor Special
Servicer, as applicable, to assume its functions hereunder, and to cooperate
with the Trustee and the successor to its responsibilities hereunder in
effecting the termination of its responsibilities and rights hereunder,
including, without limitation, the transfer to the successor Master Servicer or
successor Special Servicer or the Trustee, as applicable, for administration by
it of all cash amounts which shall at the time be or should have been credited
by the Master Servicer or the Special Servicer to the Collection Account, any
REO Account or Lock-Box Account or shall thereafter be received with respect to
the Mortgage Loans, and shall promptly provide the Trustee or such successor
Master Servicer or Special Servicer (which may include the Trustee), as
applicable, all documents and records reasonably requested by it, such documents
and records to be provided in such form as the Trustee or such successor Master
Servicer or Special Servicer shall reasonably request (including electromagnetic
form), to enable it to assume the Master Servicer's or Special Servicer's
function hereunder. All reasonable costs and expenses of the Trustee or the
successor Master Servicer or successor Special Servicer incurred in connection
with transferring the Mortgage Files to the successor Master Servicer or Special
Servicer and amending this Agreement to reflect such succession as successor
Master Servicer or successor Special Servicer pursuant to this Section 7.01
shall be paid by the predecessor Master Servicer or the Special Servicer, as
applicable, upon presentation of reasonable documentation of such costs and
expenses. If the predecessor Master Servicer or Special Servicer (as the case
may be) has not reimbursed the Trustee or the successor Master Servicer or
Special Servicer for such expenses within 90 days after the presentation of
reasonable documentation, such expense shall be reimbursed by the Trust Fund;
provided that the Terminated Party shall not thereby be relieved of its
liability for such expenses.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer receives
a notice of termination pursuant to Section 7.01, the Trustee shall be its
successor in all respects in its capacity as Master Servicer or Special Servicer
under this Agreement and the transactions set forth or provided for herein and,
except as provided herein, shall be subject to all the responsibilities, duties,
limitations on liability and liabilities relating thereto and arising thereafter
placed on the Master Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that (i) the Trustee shall have no responsibilities,
duties, liabilities or obligations with respect to any act or omission of the
Master Servicer or Special Servicer and (ii) any failure to perform, or delay in
performing, such duties or responsibilities caused by the Terminated Party's
failure to provide, or delay in providing, records, tapes, disks, information or
monies shall not be considered a default by such successor hereunder. The
Trustee, as successor Master Servicer or successor Special Servicer, shall have
the same right to indemnification as the Master Servicer or Special Servicer, as
applicable, had under this Agreement prior to the Master Servicer's or the
Special Servicer's termination. The appointment of a successor Master Servicer
or successor Special Servicer shall not affect any liability of the predecessor
Master Servicer or Special Servicer which may have arisen prior to its
termination as Master Servicer or Special Servicer. The Trustee shall not be
liable for any of the representations and warranties of the Master Servicer or
Special Servicer herein or in any related document or agreement, for any acts or
omissions of the predecessor Master Servicer or predecessor Special Servicer or
for any losses incurred in respect of any Permitted Investment by the Master
Servicer pursuant to Section 3.07 hereunder nor shall the Trustee be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee as
successor Master Servicer or successor Special Servicer shall be entitled to the
Servicing Fee or Special Servicing Compensation, as applicable, and all funds
relating to the Mortgage Loans that accrue after the date of the Trustee's
succession to which the Master Servicer or Special Servicer would have been
entitled if the Master Servicer or Special Servicer, as applicable, had
continued to act hereunder. In the event any Advances made by the Master
Servicer, the Special Servicer and the Trustee or the Fiscal Agent shall at any
time be outstanding, or any amounts of interest thereon shall be accrued and
unpaid, all amounts available to repay Advances and interest hereunder shall be
applied entirely to the Advances made by the Trustee or the Fiscal Agent (and
the accrued and unpaid interest thereon), until such Advances and interest shall
have been repaid in full. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall, if it is unable to so act, or if the
Holders of Certificates entitled to at least 25% of the aggregate Voting Rights
so request in writing to the Trustee, or if neither the Trustee nor the Fiscal
Agent is rated by each Rating Agency in one of its two highest long-term debt
rating categories or if the Rating Agencies do not provide written confirmation
that the succession of the Trustee, as Master Servicer or Special Servicer, as
applicable, will not cause a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution, the appointment of which will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings assigned to
any Class of Certificates as evidenced in writing by each Rating Agency, as the
successor to the Master Servicer or Special Servicer, as applicable, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer or Special Servicer hereunder. No appointment
of a successor to the Master Servicer or Special Servicer hereunder shall be
effective until the assumption by such successor of all the Master Servicer's or
Special Servicer's responsibilities, duties and liabilities hereunder. Pending
appointment of a successor to the Master Servicer (or the Special Servicer if
the Special Servicer is also the Master Servicer) hereunder, unless the Trustee
shall be prohibited by law from so acting, the Trustee shall act in such
capacity as herein above provided. Pending the appointment of a successor to the
Special Servicer, unless the Master Servicer is also the Special Servicer, the
Master Servicer shall act in such capacity. In connection with such appointment
and assumption described herein, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Terminated Party hereunder, provided, further, that
if no successor to the Terminated Party can be obtained to perform the
obligations of such Terminated Party hereunder, additional amounts shall be paid
to such successor and such amounts in excess of that permitted the Terminated
Party shall be treated as Realized Losses. The Depositor, the Trustee, the
Master Servicer or Special Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or appointment of a
successor to the Master Servicer or the Special Servicer, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency.
(b) Within 30 days after the occurrence of any Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
transmit by mail to all Holders of Certificates and to each Rating Agency notice
of such Event of Default, unless such Event of Default shall have been cured or
waived.
SECTION 7.04. Other Remedies of Trustee.
During the continuance of any Master Servicer Event of Default or a Special
Servicer Event of Default when the Master Servicer is also serving as Special
Servicer, so long as such Master Servicer Event of Default or Special Servicer
Event of Default, if applicable, shall not have been remedied, the Trustee, in
addition to the rights specified in Section 7.01, shall have the right, in its
own name as trustee of an express trust, to take all actions now or hereafter
existing at law, in equity or by statute to enforce its rights and remedies and
to protect the interests, and enforce the rights and remedies, of the
Certificateholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filing of proofs of claim and debt
in connection therewith). In such event, the legal fees, expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06.
Except as otherwise expressly provided in this Agreement, no remedy provided for
by this Agreement shall be exclusive of any other remedy, and each and every
remedy shall be cumulative and in addition to any other remedy and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Master Servicer Event of Default or
Special Servicer Event of Default, if applicable.
SECTION 7.05. Waiver of Past Events of Default; Termination.
The Holders of Certificates (other than the Master Servicer or the Special
Servicer, as applicable) evidencing not less than 66-2/3% of the aggregate
Voting Rights of the Certificates (exclusive of such Certificates held by the
Master Servicer or the Special Servicer) may, on behalf of all Holders of
Certificates, waive any default by the Master Servicer or Special Servicer in
the performance of its obligations hereunder and its consequences, except a
default in making any required deposits (including P&I Advances) to or payments
from the Collection Account or the Lower-Tier Distribution Account or in
remitting payments as received, in each case in accordance with this Agreement.
Upon any such waiver of a past default, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon. Any costs and expenses
incurred by the Trustee in connection with such default and prior to such waiver
shall be reimbursed by the Master Servicer or the Special Servicer, as
applicable, promptly upon demand therefor and if not reimbursed to the Trustee
within 90 days of such demand, from the Trust Fund; provided, that the Trust
Fund shall be reimbursed by the Master Servicer or the Special Servicer, as
applicable, to the extent such amounts are reimbursed to the Trustee from the
Trust Fund.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge and after the curing or
waiver of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this Agreement
and no permissive right of the Trustee shall be construed as a duty. During the
continuance of an Event of Default of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee, subject to the provisions of Sections 7.02
and 7.04, shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of any resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement to the extent
specifically set forth herein; provided, however, that, the Trustee shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument provided to it
hereunder. If any such instrument is found not to conform on its face to the
requirements of this Agreement in a material manner, the Trustee shall request a
corrected instrument, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors, employees,
agents or "control" persons within the meaning of the Act shall have any
liability arising out of or in connection with this Agreement, provided, that,
subject to Section 8.02, no provision of this Agreement shall be construed to
relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, and
after the curing or waiver of all such Events of Default which
may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Trustee and, in the
absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
resolutions, certificates, statements, reports, opinions,
documents, orders or other instruments furnished to the Trustee
that conform on their face to the requirements of this Agreement
without responsibility for investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or
Responsible Officers, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of Holders of Certificates
entitled to greater than 50% of the Percentage Interests (or such
other percentage as is specified herein) of each affected Class,
or of the aggregate Voting Rights of the Certificates, relating
to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Agreement;
(iv) Neither the Trustee nor any of its respective directors,
officers, employees, agents or control persons shall be
responsible for any act or omission of any Custodian, Paying
Agent or Certificate Registrar that is not an Affiliate of the
Trustee and that is selected other than by the Trustee, performed
or omitted in compliance with any custodial or other agreement,
or any act or omission of the Master Servicer, Special Servicer,
the Depositor or any other third Person, including, without
limitation, in connection with actions taken pursuant to this
Agreement;
(v) The Trustee shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to
its respective duties as Trustee in accordance with this
Agreement (and, if it does, all legal expenses and costs of such
action shall be expenses and costs of the Trust Fund), and the
Trustee shall be entitled to be reimbursed therefor from the
Collection Account, unless such legal action arises out of the
negligence or bad faith of the Trustee or any breach of an
obligation, representation, warranty or covenant of the Trustee
contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act,
failure to act or breach of any Person upon the occurrence of
which the Trustee may be required to act, unless a Responsible
Officer of the Trustee obtains actual knowledge of such failure.
The Trustee shall be deemed to have actual knowledge of the
Master Servicer's or the Special Servicer's failure to provide
scheduled reports, certificates and statements when and as
required to be delivered to the Trustee pursuant to this
Agreement.
None of the provisions contained in this Agreement shall
require either the Trustee, in its capacity as Trustee, or the Fiscal Agent, to
expend or risk its own funds, or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if in the opinion of the Trustee or the Fiscal Agent,
respectively, the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations of
the Master Servicer or the Special Servicer under this Agreement, except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Master Servicer or the Special
Servicer in accordance with the terms of this Agreement. Neither the Trustee nor
the Fiscal Agent shall be required to post any surety or bond of any kind in
connection with its performance of its obligations under this Agreement and
neither the Trustee nor the Fiscal Agent shall be liable for any loss on any
investment of funds pursuant to this Agreement (other than any funds invested
with it in its commercial capacity).
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected
in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal;
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of
Counsel;
(iii) (A) The Trustee shall be under no obligation to institute,
conduct or defend any litigation hereunder or in relation hereto
at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; (B) the
right of the Trustee to perform any discretionary act enumerated
in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act; and (C)
provided, that subject to the foregoing clause (A), nothing
contained herein shall relieve the Trustee of the obligations,
upon the occurrence of an Event of Default (which has not been
cured or waived) of which a Responsible Officer of the Trustee
has actual knowledge, to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs;
(iv) Neither the Trustee nor any of its directors, officers,
employees, Affiliates, agents or "control" persons within the
meaning of the Act shall be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by the Trustee to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(v) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled
to at least 25% (or such other percentage as is specified herein)
of the Percentage Interests of any affected Class; provided,
however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action. The
reasonable expense of every such investigation shall be paid by
the Master Servicer or the Special Servicer, as applicable, if an
Event of Default shall have occurred and be continuing relating
to the Master Servicer, or the Special Servicer, respectively,
and otherwise by the Certificateholders requesting the
investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys but shall not be relieved of its obligations
hereunder.
(b) Following the Start-up Day, the Trustee shall not, except as expressly
required by any provision of this Agreement, accept any contribution of assets
to the Trust Fund unless the Trustee shall have received an Opinion of Counsel
(the costs of obtaining such opinion to be borne by the Person requesting such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
either the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative investigation as
to the occurrence of any condition requiring the repurchase of any Mortgage Loan
by the Depositor pursuant to this Agreement or the eligibility of any Mortgage
Loan for purposes of this Agreement.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as
the statements of the Trustee, the Fiscal Agent, the Master Servicer, or the
Special Servicer, and the Trustee, the Fiscal Agent, the Master Servicer and
Special Servicer assume no responsibility for their correctness. The Trustee,
the Fiscal Agent, the Master Servicer and Special Servicer make no
representations or warranties as to the validity or sufficiency of this
Agreement, of the Certificates or any prospectus used to offer the Certificates
for sale or the validity, enforceability or sufficiency of any Mortgage Loan or
related document. Neither the Trustee nor the Fiscal Agent shall at any time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage, any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders under this Agreement. Without limiting the foregoing, neither
the Trustee nor the Fiscal Agent shall be liable or responsible for: the
existence, condition and ownership of any Mortgaged Property; the existence of
any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of the Master Servicer or the Special Servicer pursuant to Section
7.02) or the enforceability thereof; the existence of any Mortgage Loan or the
contents of the related Mortgage File on any computer or other record thereof
(other than if the Trustee shall assume the duties of the Master Servicer or the
Special Servicer pursuant to Section 7.02); the validity of the assignment of
any Mortgage Loan to the Trust Fund or of any intervening assignment; the
completeness of any Mortgage File (except for its review thereof pursuant to
Section 2.02); the performance or enforcement of any Mortgage Loan (other than
if the Trustee shall assume the duties of the Master Servicer or the Special
Servicer pursuant to Section 7.02); the compliance by the Depositor, the Master
Servicer or the Special Servicer with any warranty or representation made under
this Agreement or in any related document or the accuracy of any such warranty
or representation prior to the Trustee's receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Master Servicer or any loss resulting therefrom
(other than if the Trustee shall assume the duties of the Master Servicer or the
Special Servicer pursuant to Section 7.02), it being understood that the Trustee
shall remain responsible for any Trust Fund property that it may hold in its
individual capacity; the acts or omissions of any of the Depositor, the Master
Servicer or the Special Servicer (other than if the Trustee shall assume the
duties of the Master Servicer or Special Servicer pursuant to Section 7.02) or
any sub-Master Servicer or any Borrower; any action of the Master Servicer or
Special Servicer (other than if the Trustee shall assume the duties of the
Master Servicer or the Special Servicer pursuant to Section 7.02) or any
sub-Master Servicer taken in the name of the Trustee, except to the extent such
action is taken at the express written direction of the Trustee; the failure of
the Master Servicer or the Special Servicer or any sub-Master Servicer to act or
perform any duties required of it on behalf of the Trust Fund or the Trustee
hereunder; or any action by or omission of the Trustee taken at the instruction
of the Master Servicer or the Special Servicer (other than if the Trustee shall
assume the duties of the Master Servicer or the Special Servicer pursuant to
Section 7.02) unless the taking of such action is not permitted by the express
terms of this Agreement; provided, however, that the foregoing shall not relieve
the Trustee of its obligation to perform its duties as specifically set forth in
this Agreement. Neither the Trustee nor the Fiscal Agent shall be accountable
for the use or application by the Depositor, the Master Servicer or the Special
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor, the Master
Servicer or the Special Servicer in respect of the assignment of the Mortgage
Loans or deposited in or withdrawn from the Collection Account, Lower-Tier
Distribution Account, Upper-Tier Distribution Account, Class Q Distribution
Account, Deferred Interest Distribution Account, Lock Box Account, Cash
Collateral Account, Reserve Accounts or any other account maintained by or on
behalf of the Master Servicer or the Special Servicer, other than any funds held
by the Trustee or Fiscal Agent, as applicable. Neither the Trustee nor the
Fiscal Agent shall have responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Master Servicer) or to record this
Agreement. In making any calculation hereunder which includes as a component
thereof the payment or distribution of interest for a stated period at a stated
rate "to the extent permitted by applicable law," the Trustee shall assume that
such payment is so permitted unless a Responsible Officer of the Trustee has
actual knowledge, or receives an Opinion of Counsel (at the expense of the
Person asserting the impermissibility) to the effect that such payment is not
permitted by applicable law.
The Trustee and the Certificate Registrar shall have no liability for
transfers made through the book-entry facilities of the Depository or between or
among Depository Participants or beneficial owners of the Certificates, made in
violation of applicable restrictions.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee and the Certificate Registrar shall have no liability for
transfers, including transfers made through the book-entry facilities of the
Depository or between or among Depository Participants or beneficial owners of
the Certificates, made in violation of applicable restrictions. The Trustee, the
Fiscal Agent and any agent of the Trustee or Fiscal Agent in its individual
capacity or any other capacity may become the owner or pledgee of Certificates,
and may deal with the Depositor and the Master Servicer in banking transactions,
with the same rights it would have if it were not Trustee, Fiscal Agent or such
agent.
SECTION 8.05. Payment of Trustee Fees and Expenses; Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on each
Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Master Servicer or the Special Servicer hereunder
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, the Trustee shall be entitled to the
compensation to which the Master Servicer or the Special Servicer, as the case
may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or reimbursed by
the Trust Fund upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee or the Fiscal Agent pursuant to and in
accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) to the extent such payments are
"unanticipated expenses" as described in clause (d) below, except any such
expense, disbursement or advance as may arise from its negligence or bad faith;
provided, however, that, subject to the last paragraph of Section 8.01, neither
the Trustee nor the Fiscal Agent shall refuse to perform any of its duties
hereunder solely as a result of the failure to be paid the Trustee Fee and the
Trustee's expenses or any sums due to the Fiscal Agent.
The Master Servicer and the Special Servicer covenant and agree to pay or
reimburse the Trustee for the reasonable out-of-pocket expenses incurred or made
by the Trustee in connection with any transfer of the servicing responsibilities
of the Master Servicer or the Special Servicer, respectively, hereunder,
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, in accordance with any of the provisions of
this Agreement (and including the reasonable fees and expenses and disbursements
of its counsel and all other persons not regularly in its employ), except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of the Trustee.
(c) Each of the Paying Agent, the Certificate Registrar, the Custodian, the
Depositor, the Master Servicer and the Special Servicer (each, an "Indemnifying
Party"), shall indemnify the Trustee and the Fiscal Agent and their respective
Affiliates and each of the directors, officers, employees and agents of the
Trustee, the Fiscal Agent and their respective Affiliates (each, an "Indemnified
Party"), and hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Indemnified Party may sustain in connection with this Agreement (including,
without limitation, reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to each such Indemnifying Party's respective willful
misconduct, bad faith, fraud and/or negligence in the performance of each of its
respective duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder (including in the case of the Master Servicer,
any agent of the Master Servicer or sub-Master Servicer).
(d) The Trust Fund shall indemnify each Indemnified Party from, and hold it
harmless against, any and all losses, liabilities, damages, claims or
unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates, in each case to the extent and only to the
extent, such payments are expressly reimbursable under this Agreement, or are
unanticipated expenses (as defined below), other than (i) those resulting from
the negligence, fraud, bad faith or willful misconduct of the Indemnified Party
and (ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(c). The term "unanticipated expenses" shall include any
fees, expenses and disbursement of any separate trustee or co-trustee appointed
hereunder, only to the extent such fees, expenses and disbursements were not
reasonably anticipated as of the Closing Date, and the losses, liabilities,
damages, claims or incremental expenses (including reasonable attorneys' fees)
incurred or advanced by an Indemnified Party in connection with (i) a default
under any Mortgage Loan and (ii) any litigation arising out of this Agreement,
including, without limitation, under Section 2.03, Section 3.10, the third
paragraph of Section 3.11, Section 4.05 and Section 7.01. The right of
reimbursement of the Indemnified Parties under this Section 8.05(d) shall be
senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section 8.05
shall survive the termination or maturity of this Agreement or the resignation
or removal of the Trustee or the Fiscal Agent, as the case may be, as regards
rights accrued prior to such resignation or removal and (with respect to any
acts or omissions during their respective tenures) the resignation, removal or
termination of the Master Servicer, the Special Servicer, the Paying Agent, the
Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but not be
limited to, such indemnities, compensation, expenses, disbursements, advances,
losses, liabilities, damages and the like, as may pertain or relate to any
environmental law or environmental matter.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of any state or the United States of
America, authorized under such laws to exercise corporate trust powers and to
accept the trust conferred under this Agreement, having a combined capital and
surplus of at least $50,000,000 and a rating on its unsecured long-term debt of
at least "BBB" by Fitch and S&P and "Baa2" by Moody's (or at any time when there
is no Fiscal Agent appointed and acting hereunder or any such Fiscal Agent so
appointed has a rating on its long-term unsecured debt that is lower than "AA"
by Fitch and S&P, "Aa2" by Moody's the rating on the unsecured long term debt of
the Trustee must be at least "AA" by Fitch and S&P, and "Aa2" by Moody's, or
meet different standards provided that each Rating Agency shall have confirmed
in writing that meeting such different standards would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current ratings
assigned to the Certificates) and subject to supervision or examination by
federal or state authority and shall not be an Affiliate of the Master Servicer
(except during any period when the Trustee has assumed the duties of the Master
Servicer pursuant to Section 7.02); provided, that, notwithstanding that the
long-term unsecured debt of LaSalle National Bank is not rated by Fitch, LaSalle
National Bank shall not fail to qualify as Trustee solely by virtue of the lack
of such ratings until such time as Fitch shall notify the Trustee, the Master
Servicer and the Special Servicer in writing that LaSalle National Bank is no
longer exempt from the foregoing rating requirements imposed by this sentence.
If a corporation or association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for purposes of this Section the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In the
event that the place of business from which the Trustee administers the Trust
Fund is a state or local jurisdiction that imposes a tax on the Trust Fund or
the net income of a REMIC (other than a tax corresponding to a tax imposed under
the REMIC Provisions) the Trustee shall elect either to (i) resign immediately
in the manner and with the effect specified in Section 8.07, (ii) pay such tax
from its own funds and continue as Trustee or (iii) administer the Trust Fund
from a state and local jurisdiction that does not impose such a tax. In case at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Master Servicer
and each Rating Agency. Upon such notice of resignation, the Fiscal Agent shall
also be deemed to have been removed and, accordingly, the Depositor shall
promptly appoint a successor Trustee, the appointment of which would not, as
evidenced in writing, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates, and a
successor Fiscal Agent (if necessary to satisfy the requirements contained in
Section 8.06), the appointment of which, if the successor Trustee is not rated
by each Rating Agency in one of its two highest long-term debt rating
categories, would not, as evidenced in writing, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates, by written instrument, in triplicate, which instrument shall
be delivered to the resigning Trustee, with a copy to the Fiscal Agent deemed
removed, and the successor Trustee and successor Fiscal Agent. If no successor
Trustee and successor Fiscal Agent shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee and the Fiscal Agent may petition any court
of competent jurisdiction for the appointment of a successor Trustee and
successor Fiscal Agent.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 and shall fail to resign after written request
therefor by the Depositor or 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 upon
a confirmation in writing by any Rating Agency that not terminating the Trustee,
or the Fiscal Agent, as applicable, would, in and of itself, cause the
then-current rating assigned to any Class of Certificates to be qualified,
withdrawn or downgraded, then the Depositor may remove the Trustee and the
Fiscal Agent and promptly appoint a successor Trustee and successor Fiscal Agent
by written instrument, which shall be delivered to the Trustee and the Fiscal
Agent so removed and to the successor Trustee and the successor Fiscal Agent.
The Holders of Certificates entitled to at least 50% of the Voting Rights of all
of the Certificates may at any time remove the Trustee and the Fiscal Agent (and
any removal of the Trustee shall be deemed to be a removal also of the Fiscal
Agent) and appoint a successor Trustee and, if necessary, successor Fiscal Agent
by written instrument or instruments, in seven originals, signed by such Holders
or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Depositor, one complete set to the Master
Servicer, one complete set to the Trustee so removed, one complete set to the
Fiscal Agent deemed removed, one complete set to the successor Trustee so
appointed and one complete set to any successor Fiscal Agent so appointed;
provided, however, that the fee paid to the successor Trustee shall in no event
be greater than the Trustee Fee. All expenses incurred by the Trustee and/or the
Fiscal Agent upon any removal without cause shall be paid by the party(ies)
terminating the Trustee and the Fiscal Agent. Such termination shall not be
effective until such expenses have been paid.
In the event of removal of the Trustee, the Fiscal Agent shall be deemed to
have been removed.
In the event that the Trustee or Fiscal Agent is terminated or removed
pursuant to this Section 8.07, all of its rights and obligations under this
Agreement and in and to the Mortgage Loans shall be terminated, other than any
rights or obligations that accrued prior to the date of such termination or
removal (including the right to receive all fees, expenses and other amounts
accrued or owing to it under this Agreement, plus interest at the Advance Rate
on all such amounts until received to the extent such amounts bear interest as
provided in this Agreement, with respect to periods prior to the date of such
termination or removal).
Any resignation or removal of the Trustee and Fiscal Agent and appointment
of a successor Trustee and, if such trustee is not rated by each Rating Agency
in one of its two highest long-term debt rating categories, a successor Fiscal
Agent pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee and, if
necessary, successor Fiscal Agent as provided in Section 8.08.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any successor Fiscal Agent appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer and to the predecessor Trustee and predecessor
Fiscal Agent, as the case may be, instruments accepting their appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
and predecessor Fiscal Agent shall become effective and such successor Trustee
and successor Fiscal Agent, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Fiscal Agent herein, provided that the appointment of such successor Trustee and
successor Fiscal Agent shall not, as evidenced in writing by each Rating Agency,
result in a downgrade, qualification or withdrawal of the then current ratings
assigned to the Certificates. The predecessor Trustee shall deliver to the
successor Trustee all Mortgage Files and related documents and statements held
by it hereunder, and the Depositor and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor Trustee all
such rights, powers, duties and obligations. No successor Trustee shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor Trustee shall be eligible under the provisions of
Section 8.06.
The Fiscal Agent may not resign except (i) in the event of the resignation
or removal of the Trustee, (ii) upon determination that it may no longer perform
such obligations and duties under applicable law, or (iii) upon written
confirmation from the Rating Agencies that such resignation, without the
appointment of a successor Fiscal Agent, will not in and of itself result in a
downgrade qualification or withdrawal of the then current rating of any Class of
Certificates. Any determination with respect to clause (ii) in the immediately
preceding sentence is required to be evidenced by an opinion of counsel to such
effect delivered to the Depositor and the Trustee. No resignation or removal of
the Fiscal Agent shall become effective until a successor fiscal agent
acceptable to each Rating Agency, as evidenced in writing (which may be Trustee)
shall have assumed the Fiscal Agent's obligations and duties under this
Agreement.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such Trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor Trustee or Fiscal Agent appointed pursuant to this
Agreement shall satisfy the eligibility requirements set forth in Section 8.06
hereof.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
8.06, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act (at the expense of the Trustee) as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not be in existence or shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. Except as required by
applicable law, the appointment of a co-trustee or separate trustee shall not
relieve the Trustee of its responsibilities, obligations and liabilities
hereunder. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor Trustee under Section 8.06 hereunder and
no notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Fund or any portion thereof in any
such jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by reason of any
act or omission of any other trustee under this Agreement. The Depositor and the
Trustee acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee, or if the separate trustee or co-trustee is an
employee of the Trustee, the Trustee acting alone may accept the resignation of
or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Every such instrument shall be filed with the Trustee.
Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of, affecting the liability of, or affording protection
to, such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed on the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the initial Fiscal
Agent hereunder for the purposes of exercising and performing the obligations
and duties imposed upon the Fiscal Agent hereunder. The Fiscal Agent undertakes
to perform such duties and only such duties as are specifically set forth
hereunder.
(b) No provision of this Agreement shall be construed to relieve the Fiscal
Agent from liability for its own negligent failure to act or its own willful
misfeasance; provided, however, that (i) the duties and obligations of the
Fiscal Agent shall be determined solely by the express provisions of this
Agreement, the Fiscal Agent shall not be liable except for the performance of
such duties and obligations, no implied covenants or obligations shall be read
into this Agreement against the Fiscal Agent and, in the absence of bad faith on
the part of the Fiscal Agent, the Fiscal Agent may conclusively rely, as to the
truth and correctness of the statements or conclusions expressed therein, upon
any resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Fiscal Agent by the Depositor, the Master
Servicer, the Special Servicer or the Trustee and which on their face do not
contradict the requirements of this Agreement, and (ii) the provisions of clause
(ii) of Section 8.01(c) shall apply to the Fiscal Agent.
SECTION 8.12. Representations and Warranties of the Trustee
and the Fiscal Agent.
(a) The Trustee hereby represents and warrants to the Depositor, the Master
Servicer and the Special Servicer and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws of the
United States;
(ii) The execution and delivery of this Agreement by the Trustee, and
the performance and compliance with the terms of this Agreement
by the Trustee, will not violate the Trustee's charter and
by-laws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or
any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a
valid, legal and binding obligation of the Trustee, enforceable
against the Trustee in accordance with the terms hereof, subject
to (a) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and the rights of creditors of national banking
associations specifically 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 this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation
of, any law (subject to the appointment in accordance with such
applicable laws of any co-trustee or separate trustee required
pursuant to this Agreement), 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 litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit
the Trustee from entering into this Agreement or, 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; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by the Trustee, or compliance by the
Trustee with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for any
consent, approval, authorization or order which has not been
obtained or cannot be obtained prior to the actual performance by
the Trustee of its obligations under this Agreement, and which,
if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
(b) The Fiscal Agent hereby represents and warrants to the Depositor, the
Master Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Fiscal Agent is a foreign banking corporation, duly
organized, validly existing and in good standing under the laws
governing its creation;
(ii) The execution and delivery of this Agreement by the Fiscal Agent,
and the performance and compliance with the terms of this
Agreement by the Fiscal Agent, will not violate the Fiscal
Agent's charter and by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Fiscal Agent 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 Fiscal Agent,
enforceable against the Fiscal Agent 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 national banking associations specifically and (b)
general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The Fiscal Agent is not in violation of, and its execution and
delivery of this Agreement and its performance 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
Fiscal Agent's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Fiscal
Agent to perform its obligations under this Agreement or the
financial condition of the Fiscal Agent;
(vi) No litigation is pending or, to the best of the Fiscal Agent's
knowledge, threatened against the Fiscal Agent which would
prohibit the Fiscal Agent from entering into this Agreement or,
in the Fiscal Agent's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of
the Fiscal Agent to perform its obligations under this Agreement
or the financial condition of the Fiscal Agent; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by the Fiscal Agent, or compliance by
the Fiscal Agent with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for any
consent, approval, authorization or order which has not been
obtained or cannot be obtained prior to the actual performance by
the Fiscal Agent of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect
on the ability of the Fiscal Agent to perform its obligations
hereunder.
<PAGE>
ARTICLE IX
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE
SECTION 9.01. Termination; Optional Mortgage Loan Purchase.
(a) The respective obligations and responsibilities of the Master Servicer,
the Special Servicer, the Depositor, the Trustee and the Fiscal Agent created
hereby with respect to the Certificates (other than the obligation to make
certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate immediately following the occurrence of
the last action required to be taken by the Trustee pursuant to this Article IX
on the Termination Date; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of twenty-one years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
(b) The Upper-Tier REMIC and the Lower-Tier REMIC shall be terminated and
the assets of the Trust Fund with respect to the Trust REMICs shall be sold or
otherwise disposed of in connection therewith, only pursuant to a "plan of
complete liquidation" within the meaning of Code Section 860F(a)(4)(A) providing
for the actions contemplated by the provisions hereof pursuant to which the
applicable Notice of Termination is given and requiring that the assets of each
of the Upper-Tier REMIC and the Lower-Tier REMIC shall be sold for cash and that
each such REMIC shall terminate on a Distribution Date occurring not more than
90 days following the date of adoption of the plan of complete liquidation. For
purposes of this Section 9.01(b), the Notice of Termination given pursuant to
Section 9.01(c) shall constitute the adoption of the plan of complete
liquidation as of the date such notice is given, which date shall be specified
by the Master Servicer in the final federal income tax returns of the Upper-Tier
REMIC and the Lower-Tier REMIC. Notwithstanding the termination of the REMICs or
the Trust Fund, the Trustee shall be responsible for filing the final Tax
Returns for the REMICs and applicable income tax or information returns for the
Grantor Trust for the period ending with such termination, and shall maintain
books and records with respect to the REMICs and the Grantor Trust for the
period for which it maintains its own tax returns or other reasonable period.
(c) The Depositor may effect an early termination of the Trust Fund, upon
not less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage Loan
included in the Trust Fund as of the last day of the month
preceding such Distribution Date;
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of the date not more
than 30 days prior to the last day of the month preceding
such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable, but, in the case of
the North Shore Towers Loan, net of the Hancock Retained
Interest), to the last day of the Interest Accrual Period
preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in each case to the
extent permitted hereby with interest on all unreimbursed
Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgaged Property, and
all other property acquired in respect of any Mortgage Loan in
the Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to this Section 9.01(c) shall
be borne by the party exercising its purchase rights hereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to this subsection (c).
Any Mortgage Loan purchased under the circumstances described in this
subsection (c) will be purchased subject to a continuing right of (i) the
holders of the Class Q Certificates to receive from the purchaser(s), from time
to time, payments corresponding to Default Interest with respect to such
Mortgage Loan and (ii) the holders of the Classes of Certificates entitled to
receive the Deferred Interest with respect to such Mortgage Loan, as specified
in Section 2.06(b), to receive from the purchaser(s), from time to time,
payments corresponding to Deferred Interest with respect to such Mortgage Loan.
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests, notwithstanding that such distribution may be insufficient to
distribute in full an amount equal to the remaining Certificate Principal Amount
of each such Certificate or Lower-Tier Regular Interest, together with amounts
required to be distributed on such Distribution Date pursuant to Section 4.01 or
(ii) if no such Regular Certificates are then outstanding, to the Holders of the
Class LR Certificates of any amount remaining in the Collection Account or the
Lower-Tier Distribution Account and to the Holders of the Class R Certificates
of any amount remaining in the Upper-Tier Distribution Account, in either case,
following the later to occur of (A) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund or (B) the
liquidation or disposition pursuant to Section 3.18 of the last asset held by
the Trust Fund and (iii) to the holders of the Class Q Certificates, of any
amount remaining in the Class Q Distribution Account and to the holders of
Certificates entitled to receive Deferred Interest, as provided in Section
2.06(b), of any amount remaining in the Deferred Interest Distribution Account.
(e) Notice of any termination of the Trust Fund pursuant to this Section
9.01 shall be mailed by the Trustee to affected Certificateholders with a copy
to the Master Servicer and each Rating Agency at their addresses shown in the
Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates
of the Classes specified therein;
(ii) specify the amount of any such final distribution, if known; and
(iii) state that the final distribution to Certificateholders will be
made only upon presentation and surrender of Certificates at the
office of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for
any reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with this Section 9.01.
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
SECTION 10.02. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Mortgage Loan, unless such Holder previously shall have given to the
Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates of any Class shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Notices.
All demands, notices and communications hereunder shall be in writing,
shall be deemed to have been given upon receipt (except that notices to Holders
of Class Q, Class R and Class LR Certificates or Holders of any Class of
Certificates no longer held through a Depository and instead held in registered,
definitive form shall be deemed to have been given upon being sent by first
class mail, postage prepaid) as follows:
If to the Trustee, to:
LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services Group, Morgan Stanley Capital I Inc.,
Series 1997-XL1
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
135 South LaSalle Street
Chicago, IL 60674-4107
Attention: Asset-Backed Securities
Trust Services Group, Series 1997-XL1
If to the Depositor, to:
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Cecilia Tarrant
With a copy to: Gregory Walker, Esq.
If to the Master Servicer or the Special Servicer, to:
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, Pennsylvania 19044
Attn: Servicing Manager
With a copy to:
General Counsel
If to the Underwriter, to:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Cecilia Tarrant
With a copy to: Gregory Walker, Esq.
If to any Certificateholder, to:
the address set forth in the
Certificate Register,
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
SECTION 10.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then, to the
extent permitted by applicable law, such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 10.06. Notice to the Depositor and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide notice to
the Depositor and each Rating Agency with respect to each of the following of
which a Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the merger, consolidation, resignation or termination of the
Master Servicer, Special Servicer, the Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(c);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account, the
Lower-Tier Distribution Account or the Upper-Tier Distribution
Account;
(vii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Master
Servicer;
(viii) any change in the lien priority of a Mortgage Loan;
(ix) any new lease of an anchor or a termination of an anchor lease at
a retail Mortgaged Property; and
(x) any material damage to a Mortgaged Property.
(b) The Master Servicer (or the Trustee with respect to item (iv) below or
the Special Servicer with respect to item (vi) below) shall promptly furnish to
each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.14;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.15;
(iii) a copy of each operating and other financial statement, rent
rolls, occupancy reports, and sales reports to the extent such
information is required to be delivered under a Mortgage Loan, in
each case to the extent collected pursuant to Section 3.03;
(iv) each report to Certificateholders described in Section 4.02 and
Section 3.20 and any Special Event Report prepared pursuant to
Section 3.20(b);
(v) each inspection report prepared in connection with any inspection
conducted pursuant to Section 3.19(a); and
(vi) a copy of each report produced pursuant to Sections 3.13 and
3.24.
(c) The Master Servicer shall furnish each Rating Agency with such
information with respect to the Trust Fund, any Mortgaged Property, a Borrower
and a non-performing or Specially Serviced Mortgage Loan as such Rating Agency
shall reasonably request and which the Master Servicer can reasonably obtain.
The Rating Agencies shall not be charged any fee or expense in connection
therewith.
(d) Notices to each Rating Agency shall be addressed as follows:
Fitch Investors Service, L.P.
One State Street Plaza, 31st Floor
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Managing Director/SFG/CMBS
Standard & Poor's Ratings Service
26 Broadway
New York, New York 10004
Attention: Commercial Mortgage Surveillance
or in each case to such other address as any Rating Agency shall specify by
written notice to the parties hereto.
SECTION 10.07. Amendment.
This Agreement or any Custodial Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent, without the consent of any of the Certificateholders, (i) to cure
any ambiguity, (ii) to correct or supplement any provisions herein or therein
that may be defective or inconsistent with any other provisions herein or
therein, (iii) to amend any provision hereof or thereof to the extent necessary
or desirable to maintain the status of each of the Upper-Tier REMIC and
Lower-Tier REMIC as a REMIC, or to prevent the imposition of any material state
or local taxes; (iv) to amend or supplement any provisions herein or therein
that shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment, or as
evidenced by confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then current ratings assigned to the Certificates, (v) to amend or
supplement any provisions therein to the extent necessary or desirable to
maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) to make any other provisions with respect to matters or
questions arising under this Agreement, which shall not be inconsistent with the
provisions of this Agreement and will not result in a downgrade, qualification
or withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend this Agreement to modify, eliminate
or add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
This Agreement or any Custodial Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates
representing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or any Custodial Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate
without the consent of all the holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under this Agreement, without the
consent of the Holders of all Certificates
representing all of the Percentage Interest of the
Class or Classes affected hereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance without the consent of the Holders
of all Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section hereof which relates to the
amendment of this Agreement without the consent of
all the holders of all Certificates representing all
Percentage Interests of the Class or Classes affected
thereby.
In the event that neither the Depositor nor any successor thereto, if any,
is in existence, any amendment under this Section 10.07 shall be effective with
the consent of the Trustee, the Fiscal Agent, and the Master Servicer, in
writing, and to the extent required by this Section, the Certificateholders.
Promptly after the execution of any amendment, the Master Servicer shall forward
to the Trustee and the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder and each Rating Agency. It
shall not be necessary for the consent of Certificateholders under this Section
10.07 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The method of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as
the Trustee may prescribe; provided, however, that such method shall always be
by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement or any Custodial Agreement unless, if requested
by the Master Servicer and/or the Trustee, the Master Servicer and the Trustee
shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in clause (i) or (ii) of the first sentence of this Section,
then at the expense of the Trust Fund), to the effect that such amendment will
not cause any of the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding, will not cause a tax
to be imposed on the Trust Fund under the REMIC Provisions (other than a tax at
the highest marginal corporate tax rate on net income from foreclosure property)
and will not cause the Grantor Trust to fail to qualify as a grantor trust.
Prior to the execution of any amendment to this Agreement or any Custodial
Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the Master
Servicer may request and shall be entitled to rely conclusively upon an Opinion
of Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by any Rating Agency to maintain the rating issued by it
or requested by the Trustee for any purpose described in clause (i), (ii), (iii)
or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund (including the Mortgage Loans) by the Depositor to the Trustee on
behalf of Certificateholders as contemplated by this Agreement and the sale by
the Depositor of the Certificates be, and be treated for all purposes as, a sale
by the Depositor of the undivided portion of the beneficial interest in the
Trust Fund represented by the Certificates. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Trust Fund by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the intent of the parties, the Trust
Fund is held to continue to be property of the Depositor then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Trust Fund provided for herein shall be deemed to be a grant by
the Depositor to the Trustee on behalf of Certificateholders of a first priority
security interest in all of the Depositor's right, title and interest in and to
the Trust Fund and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, Lower-Tier Distribution Account, Upper-Tier
Distribution Account, Class Q Distribution Account and Deferred Interest
Distribution Account, whether in the form of cash, instruments, securities or
other property; (c) the possession by the Trustee (or the Custodian on its
behalf) of Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the Delaware and Illinois Uniform Commercial Code; and (d)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Master Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement. It is
the intent of the parties that such a security interest would be effective
whether any of the Certificates are sold, pledged or assigned.
SECTION 10.09. Third-Party Beneficiaries.
No Person other than a party to this Agreement and any Certificateholder
shall have any rights with respect to the enforcement of any of the rights or
obligations hereunder; provided, however, that MSMC shall been an intended
third-party beneficiary with respect to the enforcement of the terms of the
Hancock Agreement relating to the Hancock Retained Interest and any related
requirements hereunder.
Without limiting the foregoing, the parties to this Agreement specifically
state that no Borrower, Manager or other party to a Mortgage Loan is an intended
third-party beneficiary of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the day
and year first above written.
MORGAN STANLEY CAPITAL I INC.,
as Depositor
By:------------------------
Name:----------------------
Title:---------------------
GMAC COMMERCIAL MORTGAGE
CORPORATION,
as Master Servicer and
as Special Servicer
By:-------------------------
Name:-----------------------
Title:----------------------
LASALLE NATIONAL BANK,
as Trustee, Custodian, Certificate
Registrar
By:------------------------
Name:----------------------
Title:---------------------
ABN AMRO BANK N.V.,
as Fiscal Agent of the Trustee
By:------------------------
Name:----------------------
Title:---------------------
By:------------------------
Name:----------------------
Title:---------------------
<PAGE>
STATE OF NEW YORK _______________)
) ss:
COUNTY OF NEW YORK_______________)
On this _____ day of _________, 1997, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared ________________________, to me known who, by me duly sworn, did depose
and acknowledge before me and say that he resides at ________________________;
that she is the Vice President of Morgan Stanley Capital I Inc. a Delaware
corporation, the corporation described in and that executed the foregoing
instrument; and that he signed his name thereto under authority of the board of
directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
_____________________________
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
__________________________________
<PAGE>
STATE OF __________________)
) ss:
COUNTY OF _________________)
On this ____ day of _______, 1997, before me, the undersigned, a Notary
Public in and for the State of _________________, duly commissioned and sworn,
personally appeared ___________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides
________________________; is the Assistant Secretary of GMAC Commercial Mortgage
Corporation, the corporation described in and that executed the foregoing
instrument; and that he/she signed his/her name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
_______________________________
NOTARY PUBLIC in and for the
State of _____________.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
___________________________
<PAGE>
STATE OF ___________________)
) ss:
COUNTY OF _________________)
On this ______ day of _______, 1997, before me, the undersigned, a Notary
Public in and for the State of _____________, duly commissioned and sworn,
personally appeared ___________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
______________________________; is the Vice President of LaSalle National Bank,
the national banking association described in and that executed the foregoing
instrument; and that he/she signed his/her name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
______________________________
NOTARY PUBLIC in and for the
State of _____________.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
___________________________
<PAGE>
STATE OF ___________________)
) ss:
COUNTY OF _________________)
On this __th day of _________, 1997, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared ______________, to me known who, by me duly sworn, did depose and
acknowledge before me and say that she resides at [______________________]; that
[he/she] is a [______________] of ABN AMRO Bank, a Netherlands banking
corporation, the corporation described in and that executed the foregoing
instrument; and that she signed her name thereto under authority of the board of
directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
______________________________
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
____________________________
<PAGE>
EXHIBIT A-1
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-XL1, CLASS A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS A-1
Pass-Through Rate: 6.590%
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class A-1 Certificates:
$238,000,000
CUSIP: 61745M DB 6 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDB63 $238,000,000
Common Code: 8131015
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-1 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-2, Class A-3, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class Q, Class R, and
Class LR Certificates (together with the Class A-1 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class A-1 Certificates for such Distribution Date, all as more fully described
in the Pooling Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
which such Distribution Date occurs, or if such day is not a Business Day, the
immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates; or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1 Certificate to be
duly executed.
Dated: October ___, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-1 Certificates referred to in the Pooling
Agreement.
Dated: October ___, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto __________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1
Certificate of the entire Percentage Interest represented by the within Class
A-1 Certificates to the above-named Assignee(s) and to deliver such Class A-1
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________
Signature by or on behalf of
Assignor(s)
__________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number _____________________________________.
This information is provided by ______________________________ the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: _____________________________________
_____________________________________
[Please print or type name(s)]
_____________________________________
Title:
_____________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-2
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS A-2
Pass-Through Rate: 6.880%;
provided, however, that in no
event shall the Class A-2 Pass-Through
Rate exceed the WAC Rate on any Distribution Date.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class A-2 Certificates:
$64,000,000
CUSIP: 61745M DC 4 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDC47 $64,000,000
Common Code: 8131031
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-2 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-3, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class Q, Class R and
Class LR Certificates (together with the Class A-2 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class A-2 Certificates for such Distribution Date, all as more fully described
in the Pooling Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-2 Certificate to be
duly executed.
Dated: October ___, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the Pooling
Agreement.
Dated: October ___, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2
Certificate of the entire Percentage Interest represented by the within Class
A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _____________________________________
Signature by or on behalf of
Assignor(s)
-------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________ for the account of
_____________________________ account number___________________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: _________________________________________
_________________________________________
[Please print or type name(s)]
_________________________________________
Title:
_________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-3
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS A-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS A-3
Pass-Through Rate: 6.950%;
provided, however, that in no
event shall the Class A-3 Pass-Through Rate
exceed the WAC Rate on any Distribution Date.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class A-3 Certificates:
$226,171,000
CUSIP: 61745M DD 2 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDD20 $226,171,000
Common Code: 8131066
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-3 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class Q, Class R and
Class LR Certificates (together with the Class A-3 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class A-3 Certificates for such Distribution Date, all as more fully described
in the Pooling Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-3
certificate to be duly executed.
Dated: October ___, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-3 Certificates referred to in the Pooling
Agreement.
Dated: October ___, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:__________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-3
Certificate of the entire Percentage Interest represented by the within Class
A-3 Certificates to the above-named Assignee(s) and to deliver such Class A-3
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _____________________________________________
Signature by or on behalf of
Assignor(s)
_____________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ____________________________________________________ for the account of
_____________________________ account number __________________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: ___________________________________________
___________________________________________
[Please print or type name(s)]
___________________________________________
Title:
__________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-4
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS X
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS
OF INTEREST ON THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL AMOUNT OF
THE CLASS X CERTIFICATES IS EQUAL TO THE AGGREGATE CERTIFICATE PRINCIPAL AMOUNTS
OF THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E,
CLASS F, CLASS G AND CLASS H CERTIFICATES AS SET FORTH IN THE POOLING AGREEMENT
REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING NOTIONAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE IS ISSUED ON OCTOBER 17, 1997, AT AN ISSUE PRICE OF 6.4591% OF
THE INITIAL CLASS X NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A STATED
REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS HEREON, AND IS
ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES.
ASSUMING (A) THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS
REFLECTING THE PREPAYMENT ASSUMPTION OF SCENARIO 1 (AS DESCRIBED IN THE
PROSPECTUS SUPPLEMENT DATED OCTOBER 9, 1997 WITH RESPECT TO THE OFFERING OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS X, CLASS B, CLASS C, CLASS D, CLASS E AND
CLASS F CERTIFICATES) USED TO PRICE THIS CERTIFICATE AND (B) THAT THE
PASS-THROUGH RATE HEREON CHANGES IN ACCORDANCE WITH THE PREPAYMENT ASSUMPTION:
(I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT IS
APPROXIMATELY 2.71251%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY 9.13%; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 17, 1997 TO NOVEMBER 3,
1997) AS A PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT, CALCULATED USING
THE EXACT METHOD, IS APPROXIMATELY 0.02513%.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS X
Pass-Through Rate: As determined in accordance with the
Pooling Agreement.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Notional Amount of the Distribution Date: October 2027
Class X Certificates:
$754,531,157
CUSIP: 61745M DE 0 Initial Notional
Amount of this Certificate:
ISIN: US61745MDE03 $754,531,157
Common Code: 8131082
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class X Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class Q, Class R,
and Class LR Certificates (together with the Class X Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of interest then distributable, if any, allocable to the Class X
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class X Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class X Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:__________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ____________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class X Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X
Certificate of the entire Percentage Interest represented by the within Class X
Certificates to the above-named Assignee(s) and to deliver such Class X
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _____________________________________________
Signature by or on behalf of
Assignor(s)
_____________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ____________________ for the account of ____________________ account
number ____________________________.
This information is provided by ____________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By: _____________________________________________
[Please print or type name(s)]
_____________________________________________
Title:
_____________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-5
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS B
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS B CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS B
Pass-Through Rate: As determined in accordance with the
Pooling Agreement.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class B Certificates:
$22,636,000
CUSIP: 61745M DF 7 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDF77 $22,636,000
Common Code: 8131112
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class C, Class D, Class E, Class F, Class G, Class H, Class Q, Class R,
and Class LR Certificates (together with the Class B Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class B Certificates for such Distribution Date, all as more fully described in
the Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:__________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
_______________________________________________________________________ (please
print or typewrite name(s) and address(es), including postal zip code(s) of
assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by the
within Class B Certificate and hereby authorize(s) the registration of transfer
of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B
Certificate of the entire Percentage Interest represented by the within Class B
Certificates to the above-named Assignee(s) and to deliver such Class B
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _________________________________________
Signature by or on behalf of
Assignor(s)
_________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________ for the account of
_____________________________ account number __________________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: _____________________________________
_____________________________________
[Please print or type name(s)]
_____________________________________
Title:
_____________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-6
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS C
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS C CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS C
Pass-Through Rate: As determined
in accordance with the
Pooling Agreement.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class C Certificates:
$22,636,000
CUSIP: 61745M DG 5 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDG50 $22,636,000
Common Code: 8131279
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class C Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class D, Class E, Class F, Class G, Class H, Class Q, Class R,
and Class LR Certificates (together with the Class C Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class C Certificates for such Distribution Date, all as more fully described in
the Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class C Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:___________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class C Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely
as Authenticating Agent
By:___________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class C Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class C
Certificate of the entire Percentage Interest represented by the within Class C
Certificates to the above-named Assignee(s) and to deliver such Class C
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ ___________________________________________
Signature by or on behalf of
Assignor(s)
___________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________________________________ for the account of
_____________________________ account number __________________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: _________________________________________
_________________________________________
[Please print or type name(s)]
_________________________________________
Title:
_________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-7
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS D
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS D CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS D
Pass-Through Rate: As determined
in accordance with the
Pooling Agreement.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class D Certificates:
$45,271,000
CUSIP: 61745M DH 3 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDH34 $45,271,000
Common Code: 8131317
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class D Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class E, Class F, Class G, Class H, Class Q, Class R,
and Class LR Certificates (together with the Class D Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class D Certificates for such Distribution Date, all as more fully described in
the Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class D Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class D Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely
as Authenticating Agent
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class D Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class D
Certificate of the entire Percentage Interest represented by the within Class D
Certificates to the above-named Assignee(s) and to deliver such Class D
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distribution:___________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________ for the account of
_____________________________ account number __________________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title:
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-8
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS E
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS E CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS E
Pass-Through Rate: As determined in accordance with the
Pooling Agreement.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class E Certificates:
$45,271,000
CUSIP: 61745M DJ 9 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDJ99 $45,271,000
Common Code: 8131350
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class E Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class F, Class G, Class H, Class Q, Class R,
and Class LR Certificates (together with the Class E Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class E Certificates for such Distribution Date, all as more fully described in
the Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class E Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:___________________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class E Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class E Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class E
Certificate of the entire Percentage Interest represented by the within Class E
Certificates to the above-named Assignee(s) and to deliver such Class E
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _________________________________________
Signature by or on behalf of
Assignor(s)
-----------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distribution:___________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________________________________ for the account of
_____________________________ account number ______________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: _______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-9
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS F
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS F
Pass-Through Rate: As determined in accordance with the
Pooling Agreement.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class F Certificates:
$41,500,000
CUSIP: 61745M DK 6 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDK62 $41,500,000
Common Code: 8131376
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class F Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class G, Class H, Class Q, Class R,
and Class LR Certificates (together with the Class F Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class F Certificates for such Distribution Date, all as more fully described in
the Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class F Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:___________________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class F Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class F Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class F
Certificate of the entire Percentage Interest represented by the within Class F
Certificates to the above-named Assignee(s) and to deliver such Class F
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _________________________________________
Signature by or on behalf of
Assignor(s)
_________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distribution:___________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________________________________ for the account of
_____________________________ account number ___________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: ____________________________________________
____________________________________________
[Please print or type name(s)]
____________________________________________
Title:
____________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-10
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS G
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN
INSTITUTIONAL INVESTOR THAT IS, OR ALL THE EQUITY OWNERS OF WHICH ARE,
INSTITUTIONAL "ACCREDITED INVESTORS" AS SUCH TERM IS DEFINED IN RULE
501(A)(1),(2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR (3) BY AN
INITIAL INVESTOR THAT IS A QIB, TO AN INSTITUTIONAL ACCREDITED INVESTOR AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS G
Pass-Through Rate: As determined in accordance with the
Pooling Agreement.
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class G Certificates:
$26,408,000
CUSIP: 61745M DL 4 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDL46 $26,408,000
Common Code: 8143587
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class G Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class H, Class Q, Class R,
and Class LR Certificates (together with the Class G Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class G Certificates for such Distribution Date, all as more fully described in
the Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage as from time to time are subject to the Pooling Agreement, together
with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled
payments on or collections in respect of the Mortgage Loans due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) the Master Servicer's and the Trustee's rights under the
insurance policies with respect to the Mortgage Loans required to be maintained
pursuant to the Pooling Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts, Reserve Accounts (to the extent such assets in such accounts are not
assets of the respective Borrowers), the Collection Account, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Deferred Interest
Distribution Account, the Class Q Distribution Account, and any REO Account
including reinvestment income thereon; (ix) any environmental indemnity
agreements relating to the Mortgaged Properties; (x) the rights and remedies
under the Loan Sale Agreement; and (xi) the proceeds of any of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the extent
such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class G Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:______________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class G Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely
as Authenticating Agent
By:______________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class G Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class G
Certificate of the entire Percentage Interest represented by the within Class G
Certificates to the above-named Assignee(s) and to deliver such Class G
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ ___________________________________________
Signature by or on behalf of
Assignor(s)
___________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distribution:___________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ____________________________________________________ for the account of
_____________________________ account number ______________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: ___________________________________________
___________________________________________
[Please print or type name(s)]
___________________________________________
Title:
___________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-11
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS H
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS H CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN
INSTITUTIONAL INVESTOR THAT IS, OR ALL THE EQUITY OWNERS OF WHICH ARE,
INSTITUTIONAL "ACCREDITED INVESTORS" AS SUCH TERM IS DEFINED IN RULE
501(A)(1),(2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR (3) BY AN
INITIAL INVESTOR THAT IS A QIB, TO AN INSTITUTIONAL ACCREDITED INVESTOR AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON OCTOBER 17, 1997, AND BASED ON ITS ISSUE PRICE OF
79.2882%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 14 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF SCENARIO 1 (AS
DESCRIBED IN THE PROSPECTUS SUPPLEMENT, DATED OCTOBER 9, 1997, WITH RESPECT TO
THE OFFERING OF THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS X, CLASS B, CLASS C,
CLASS D, CLASS E AND CLASS F CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE IS APPROXIMATELY 20.96809%; (II) THE ANNUAL YIELD TO MATURITY OF
THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 10.37%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 17, 1997 TO
NOVEMBER 3, 1997), AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.05567%.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS H
Pass-Through Rate: 6.590%
First Distribution Date: Cut-Off Date: October 1, 1997
November 5, 1997
Aggregate Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: October 2027
Class H Certificates:
$22,638,157
CUSIP: 61745M DM 2 Initial Certificate Principal
Amount of this Certificate:
ISIN: US61745MDM29 $22,638,157
Common Code: 8143633
No.: 1
This certifies that CEDE & CO. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class H Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class Q, Class R,
and Class LR Certificates (together with the Class H Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of that portion of the aggregate
amount of principal and interest then distributable, if any, allocable to the
Class H Certificates for such Distribution Date, all as more fully described in
the Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to each Class of Certificates is the calendar
month preceding the month in which such Distribution Date occurs. Each Interest
Accrual Period with respect to each Class of Certificates is assumed to consist
of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class H Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class H Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely
as Authenticating Agent
By:__________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class H Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class H
Certificate of the entire Percentage Interest represented by the within Class H
Certificates to the above-named Assignee(s) and to deliver such Class H
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ ___________________________________________
Signature by or on behalf of
Assignor(s)
___________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distribution:___________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________________________________ for the account of
_____________________________ account number _______________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: ____________________________________________
____________________________________________
[Please print or type name(s)]
____________________________________________
Title:
____________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-12
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS Q
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN
INSTITUTIONAL INVESTOR THAT IS, OR ALL THE EQUITY OWNERS OF WHICH ARE,
INSTITUTIONAL "ACCREDITED INVESTORS" AS SUCH TERM IS DEFINED IN RULE
501(A)(1),(2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR (3) BY AN
INITIAL INVESTOR THAT IS A QIB, TO AN INSTITUTIONAL ACCREDITED INVESTOR AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN. EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE,
(I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT D-2 TO THE
POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT SUCH PROSPECTIVE TRANSFEREE
IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE, OR (II) AN OPINION OF
COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL
NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR
LAW, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL SERVICER, THE
DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AGREEMENT,
WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE TRUST FUND,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE REGISTRAR OR THE
DEPOSITOR. EACH TRANSFEREE OF A BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS Q
Percentage Interest: 100% Cut-Off Date: October 1, 1997
No.: 1
This certifies that Morgan Stanley & Co. Incorporated is the registered
owner of an interest in a Trust Fund, including the distributions to be made
with respect to the Class Q Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class R,
and Class LR Certificates (together with the Class Q Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
This Certificate represents a pro rata undivided interest in the Default
Interest, subject to an obligation to pay interest on Advances. Pursuant to the
terms of the Pooling Agreement, the Trustee, or the Paying Agent on behalf of
the Trustee, will distribute (other than the final distribution on any
Certificate), on the third Business Day of each month, commencing on November 5,
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of Net Default Interest
then distributable, if any, allocable to the Class Q Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class Q Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:____________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class Q Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely
as Authenticating Agent
By:_____________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class Q Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class Q
Certificate of the entire Percentage Interest represented by the within Class Q
Certificates to the above-named Assignee(s) and to deliver such Class Q
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _____________________________________________
Signature by or on behalf of
Assignor(s)
_____________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distribution:___________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ____________________________________________________ for the account of
_____________________________ account number _________________________.
This information is provided by _______________________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By: ________________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title:
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-13
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS R
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE
144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY THAT IS USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN. EACH PROSPECTIVE TRANSFEREE OF THIS
CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE A REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM OF
EXHIBIT D-2 TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, STATING
THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR
(B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(1) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT
INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME
DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT
IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS
SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-l(c), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO CONSENT TO
ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE APPOINTMENT OF
THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS PERSON OR AS
OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO PERFORM THE
FUNCTIONS OF A "TAX MATTERS PERSON" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63
OF SUBTITLE F OF THE CODE.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS R
Percentage Interest: 100%
No.: 1
This certifies that Morgan Stanley & Co. Incorporated is owner the
registered owner of an interest in a Trust Fund, including the distributions to
be made with respect to the Class R Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class C, Class D, Class E, Class F, Class G, Class H, Class Q, and
Class LR Certificates (together with the Class R Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"residual interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(2) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of the aggregate amount, if any,
allocable to the Class R Certificates for such Distribution Date, all as more
fully described in the Pooling Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i)______the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class R Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely
as Authenticating Agent
By:__________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class R Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class R
Certificate of the entire Percentage Interest represented by the within Class R
Certificates to the above-named Assignee(s) and to deliver such Class R
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _____________________________________________
Signature by or on behalf of
Assignor(s)
_____________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distribution:___________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________ for the account of
_____________________________ account number ___________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By: _____________________________________________
_____________________________________________
[Please print or type name(s)]
_____________________________________________
Title:
_____________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-14
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS LR
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE
144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY THAT IS USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN. EACH PROSPECTIVE TRANSFEREE OF THIS
CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE A REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM OF
EXHIBIT D-2 TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, STATING
THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR
(B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(1) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT
INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME
DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT
IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS
SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-l(c), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO CONSENT TO
ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND TO THE APPOINTMENT OF
THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS PERSON OR AS
OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO PERFORM THE
FUNCTIONS OF A "TAX MATTERS PERSON" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63
OF SUBTITLE F OF THE CODE.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-XL1, CLASS LR
Percentage Interest: 100%
No.: 1
This certifies that Morgan Stanley & Co. Incorporated is owner the
registered owner of an interest in a Trust Fund, including the distributions to
be made with respect to the Class LR Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling Agreement (as defined below).
The Holder of this Certificate, by virtue of the acceptance hereof, assents to
the terms, provisions and conditions of the Pooling Agreement and is bound
thereby. Also issued under the Pooling Agreement are the Class A-1, Class A-2,
Class A-3, Class X, Class C, Class D, Class E, Class F, Class G, Class H, Class
Q, and Class R Certificates (together with the Class LR Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement, dated as of October 1, 1997 (the "Pooling
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"residual interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(2) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the third Business Day of each month,
commencing on November 5, 1997 (each such date, a "Distribution Date"), to the
Person in whose name this Certificate is registered as of the related Record
Date, an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) of the aggregate amount, if any,
allocable to the Class LR Certificates for such Distribution Date, all as more
fully described in the Pooling Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Collection Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Deferred Interest Distribution Account, the Class Q Distribution Account, and
any REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; and (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and any Reserve Accounts, to the
extent such interest belongs to the related Borrower).
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the applicable requirements in Article
V of the Pooling Agreement. Upon surrender for registration of transfer of this
Certificate, subject to the applicable requirements of Article V of the Pooling
Agreement, the Trustee shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar,
any Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for its
services in respect of any registration of transfer or exchange referred to in
Section 5.02 of the Pooling Agreement other than for transfers to Institutional
Accredited Investors, as also provided therein. In connection with any transfer
to a transferee that is not a QIB, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC, and Lower-Tier REMIC as a REMIC, or to prevent the
imposition of any material state or local taxes; (iv) to amend or supplement any
provisions in either of such agreements to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) to amend or supplement any provisions in either of
such agreements that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment, or as evidenced by confirmation in writing from each Rating Agency
that such amendment or supplement will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates, or (vi)
to make any other provisions with respect to matters or questions arising under
the Pooling Agreement, which shall not be inconsistent with the provisions of
the Pooling Agreement and will not result in a downgrade, qualification or
withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage Interests
of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of all
the Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance without the consent of
the Holders of all Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to the
amendment thereof, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to the Trustee and Master Servicer any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date) specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i)______the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan, included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable,
but, in the case of the North Shore Towers Loan, net of
the Hancock Retained Interest) to the last day of the
Interest Accrual Period preceding such Distribution
Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at
the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Depositor, or the Depositor and the Master Servicer, respectively, through
the Trustee of its intention to do so in writing at least 30 days prior to the
Early Termination Notice Date and neither the Depositor nor the Master Servicer
as the case may be, terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all parties to this
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class LR Certificate to be
duly executed.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:___________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class LR Certificates referred to in the Pooling
Agreement.
Dated: October __, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely
as Authenticating Agent
By:___________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class LR Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class LR
Certificate of the entire Percentage Interest represented by the within Class LR
Certificates to the above-named Assignee(s) and to deliver such Class LR
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ _____________________________________________
Signature by or on behalf of
Assignor(s)
_____________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:___________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distribution:___________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to ___________________________ for the account of
_____________________________ account number --------------------------.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By: __________________________________________
__________________________________________
[Please print or type name(s)]
__________________________________________
Title:
__________________________________________
Taxpayer Identification Number
<PAGE>
Exhibit B
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Revised
Loan Mortgage Mortgage Net Servicing Day Count
Number Loan Name Rate Default Excess Rate Rate Mortgage Fee Rate Convention
Rate Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 605 Third Avenue 7.917% 12.917% 5.000% 12.917% 7.882% 0.0355% 30/360
2 Edens & Avant Pool 7.300% 12.300% N/A N/A 7.265% 0.0355% 30/360
3 FGS Pool - - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
8.600% 13.600% 5.000% 13.600% 8.565% 0.0355% 30/360
4 Mansion Grove Apartments 8.350% 12.350% 2.000% 10.350% 8.308% 0.0423% 30/360
5 North Shore Towers 9.320% 12.320% N/A N/A 6.730% 0.0205% 30/360
6 Fashion Mall 7.850% 11.850% 2.000% 9.850% 7.815% 0.0355% 30/360
7 Yorktown Shopping Center 8.250% 12.250% N/A N/A 8.215% 0.0355% 30/360
8 Grand Kempinski Hotel 8.630% 13.630% 5.000% 13.630% 8.595% 0.0355% 30/360
9 Arrowhead Towne Center 8.600% 12.000% N/A N/A 8.565% 0.0355% 30/360
10 Mark Centers Pool - - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
- - - - - - -
8.840% 13.840% 5.000% 13.840%% 8.805% 0.0355% 30/360
11 Westgate Mall 9.250% 12.250% N/A N/A 9.215% 0.0355% 30/360
12 Westshore Mall 8.070% 13.070% 5.000% 13.070% 8.035% 0.0355% 30/360
</TABLE>
Loan Number of
Number Loan Name Cut-Off LTV Properties
1 605 Third Avenue 66.7% 1
2 Edens & Avant Pool 36.8% 63
3 FGS Pool - -
- -
- -
- -
- -
- -
- -
- -
- -
- -
- -
- -
- -
- -
- -
50.9% 15
4 Mansion Grove Apartments 61.7% 1
5 North Shore Towers 20.1% 1
6 Fashion Mall 55.9% 1
7 Yorktown Shopping Center 48.0% 1
8 Grand Kempinski Hotel 61.1% 1
9 Arrowhead Towne Center 46.6% 1
10 Mark Centers Pool - -
- -
- -
- -
- -
- -
- -
- -
- -
- -
63.8% 17
11 Westgate Mall 65.7% 1
12 Westshore Mall 63.3% 1
<PAGE>
<TABLE>
<CAPTION>
Cut-Off
Original Date
Loan Principal Principal Original Remaining
Number Loan Name Borrower's Name Balance Balance Term Term
<S> <C> <C> <C> <C> <C> <C>
1 605 Third Avenue 605 Third Avenue LLC 120,000,000 120,000,000 120 120
2 Edens & Avant Pool Edens & Avant Financing Limited Partnership 82,750,000 82,750,000 120 119
3 FGS Pool Fort Tower I Associates Hotel Limited - - - -
Partnership - - - -
Fort Tower II Associates Hotel Limited - - - -
Partnership - - - -
Newark California Hotel Limited Partnership - - - -
St. Petersburg Florida Hotel Limited Partnership - - - -
Commack New York Hotel Limited Partnership - - - -
Westbury New York Hotel Limited Partnership - - - -
Woburn Massachusetts Hotel Limited Partnership - - - -
Middletown New York Hotel Limited Partnership - - - -
Alexandria Virginia Hotel Limited Partnership - - - -
BH California Hotel Limited Partnership - - - -
Woburn Massachusetts Hotel II Limited - - - -
Partnership - - - -
Omaha Nebraska Hotel Limited Partnership - - - -
Clark New Jersey Hotel Limited Partnership 74,500,000 73,537,438 119 111
Palm Beach Florida Hotel and Office Building
Limited Partnership
Saddle Brook New Jersey Hotel Limited
Partnership
FGS Borrower
4 Mansion Grove Apartments Lick Mill Creek Apartments 73,000,000 72,862,226 120 117
5 North Shore Towers North Shore Towers Apartments Incorporated 71,700,000 70,280,966 120 86
6 Fashion Mall Galahad Real Estate Corporation 65,000,000 64,864,238 119 116
7 Yorktown Shopping Center Yorktown Joint Venture 60,000,000 57,304,459 120 81
8 Grand Kempinski Hotel Registry Dallas Associates Limited Partnership 55,000,000 55,000,000 120 120
9 Arrowhead Towne Center New River Associates 50,000,000 48,899,962 84 51
10 Mark Centers Pool Mark M.P.N.M., Limited Partnership - - - -
Mark New Smyrna Limited Partnership - - - -
Mark Troy, L.P. - - - -
Mark Park Plaza, L.P. - - - -
Mark Martintown, L.P. - - - -
Mark Kings Fairground, L.P. - - - -
Mark Shillington, L.P. - - - -
Mark 25th Street, L.P. - - - -
Mark Three Realty, L.P. - - - -
Mark Four Realty, L.P. - - - -
Mark Centers Pool Borrower 45,929,800 45,449,576 119 108
11 Westgate Mall Westgate Joint Venture 43,023,168 42,681,517 119 110
12 Westshore Mall Westshore Properties, L.L.C. 21,000,000 20,900,775 84 77
</TABLE>
<TABLE>
<CAPTION>
Original Remaining
Loan Amort Amort Monthly
Number Loan Name Borrower's Name Term Term Payment
<S> <C> <C> <C> <C> <C>
1 605 Third Avenue 605 Third Avenue LLC N/A N/A 791,700
2 Edens & Avant Pool Edens & Avant Financing Limited Partnership N/A N/A 503,396
3 FGS Pool Fort Tower I Associates Hotel Limited - - -
Partnership - - -
Fort Tower II Associates Hotel Limited - - -
Partnership - - -
Newark California Hotel Limited Partnership - - -
St. Petersburg Florida Hotel Limited Partnership - - -
Commack New York Hotel Limited Partnership - - -
Westbury New York Hotel Limited Partnership - - -
Woburn Massachusetts Hotel Limited Partnership - - -
Middletown New York Hotel Limited Partnership - - -
Alexandria Virginia Hotel Limited Partnership - - -
BH California Hotel Limited Partnership - - -
Woburn Massachusetts Hotel II Limited - - -
Partnership - - -
Omaha Nebraska Hotel Limited Partnership - - -
Clark New Jersey Hotel Limited Partnership 240 232 651,251
Palm Beach Florida Hotel and Office Building
Limited Partnership
Saddle Brook New Jersey Hotel Limited
Partnership
FGS Borrower
4 Mansion Grove Apartments Lick Mill Creek Apartments 360 357 553,565
5 North Shore Towers North Shore Towers Apartments Incorporated 360 326 593,499
6 Fashion Mall Galahad Real Estate Corporation 360 357 470,168
7 Yorktown Shopping Center Yorktown Joint Venture 300 261 473,000
8 Grand Kempinski Hotel Registry Dallas Associates Limited Partnership 300 300 447,704
9 Arrowhead Towne Center New River Associates 360 327 388,000
10 Mark Centers Pool Mark M.P.N.M., Limited Partnership - - -
Mark New Smyrna Limited Partnership - - -
Mark Troy, L.P. - - -
Mark Park Plaza, L.P. - - -
Mark Martintown, L.P. - - -
Mark Kings Fairground, L.P. - - -
Mark Shillington, L.P. - - -
Mark 25th Street, L.P. - - -
Mark Three Realty, L.P. - - -
Mark Four Realty, L.P. - - -
Mark Centers Pool Borrower 300 289 380,421
11 Westgate Mall Westgate Joint Venture 300 291 368,443
12 Westshore Mall Westshore Properties, L.L.C. 360 353 155,117
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Revised Net
Loan Mortgage Default Excess Rate Mortgage Mortgage Servicing
Number Loan Name Rate Rate Rate Rate Fee Rate
<S> <C> <C> <C> <C> <C> <C> <C>
1 605 Third Avenue 7.917% 12.917% 5.000% 12.917% 7.882% 0.0355%
2 Edens & Avant Pool 7.300% 12.300% N/A N/A 7.265% 0.0355%
3 FGS Pool - - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
8.600% 13.600% 5.000% 13.600% 8.565% 0.0355%
4 Mansion Grove Apartments 8.350% 12.350% 2.000% 10.350% 8.308% 0.0423%
5 North Shore Towers 9.320% 12.320% N/A N/A 6.730% 0.0205%
6 Fashion Mall 7.850% 11.850% 2.000% 9.850% 7.815% 0.0355%
7 Yorktown Shopping Center 8.250% 12.250% N/A N/A 8.215% 0.0355%
8 Grand Kempinski Hotel 8.630% 13.630% 5.000% 13.630% 8.595% 0.0355%
9 Arrowhead Towne Center 8.600% 12.000% N/A N/A 8.565% 0.0355%
10 Mark Centers Pool - - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
8.840% 13.840% 5.000% 13.840%% 8.805% 0.0355%
11 Westgate Mall 9.250% 12.250% N/A N/A 9.215% 0.0355%
12 Westshore Mall 8.070% 13.070% 5.000% 13.070% 8.035% 0.0355%
</TABLE>
Number of
Loan Day Count Cut-Off Properties
Number Loan Name Convention LTV
1 605 Third Avenue 30/360 66.7% 1
2 Edens & Avant Pool 30/360 36.8% 63
3 FGS Pool - - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
30/360 50.9% 15
4 Mansion Grove Apartments 30/360 61.7% 1
5 North Shore Towers 30/360 20.1% 1
6 Fashion Mall 30/360 55.9% 1
7 Yorktown Shopping Center 30/360 48.0% 1
8 Grand Kempinski Hotel 30/360 61.1% 1
9 Arrowhead Towne Center 30/360 46.6% 1
10 Mark Centers Pool - - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
- - -
30/360 63.8% 17
11 Westgate Mall 30/360 65.7% 1
12 Westshore Mall 30/360 63.3% 1
<PAGE>
<TABLE>
<CAPTION>
Cut-Off
Original Date
Loan Principal Principal Original Remaining
Number Loan Name Borrower's Name Balance Balance Term Term
<S> <C> <C> <C> <C> <C> <C>
1 605 Third Avenue 605 Third Avenue LLC 120,000,000 120,000,000 120 120
2 Edens & Avant Pool Edens & Avant Financing Limited Partnership 82,750,000 82,750,000 120 119
3 FGS Pool Fort Tower I Associates Hotel Limited - - - -
Partnership - - - -
Fort Tower II Associates Hotel Limited - - - -
Partnership - - - -
Newark California Hotel Limited Partnership - - - -
St. Petersburg Florida Hotel Limited Partnership - - - -
Commack New York Hotel Limited Partnership - - - -
Westbury New York Hotel Limited Partnership - - - -
Woburn Massachusetts Hotel Limited Partnership - - - -
Middletown New York Hotel Limited Partnership - - - -
Alexandria Virginia Hotel Limited Partnership - - - -
BH California Hotel Limited Partnership - - - -
Woburn Massachusetts Hotel II Limited - - - -
Partnership - - - -
Omaha Nebraska Hotel Limited Partnership - - - -
Clark New Jersey Hotel Limited Partnership 74,500,000 73,537,438 119 111
Palm Beach Florida Hotel and Office Building
Limited Partnership
Saddle Brook New Jersey Hotel Limited
Partnership
FGS Borrower
4 Mansion Grove Apartments Lick Mill Creek Apartments 73,000,000 72,862,226 120 117
5 North Shore Towers North Shore Towers Apartments Incorporated 71,700,000 70,280,966 120 86
6 Fashion Mall Galahad Real Estate Corporation 65,000,000 64,864,238 119 116
7 Yorktown Shopping Center Yorktown Joint Venture 60,000,000 57,304,459 120 81
8 Grand Kempinski Hotel Registry Dallas Associates Limited Partnership 55,000,000 55,000,000 120 120
9 Arrowhead Towne Center New River Associates 50,000,000 48,899,962 84 51
10 Mark Centers Pool Mark M.P.N.M., Limited Partnership - - - -
Mark New Smyrna Limited Partnership - - - -
Mark Troy, L.P. - - - -
Mark Park Plaza, L.P. - - - -
Mark Martintown, L.P. - - - -
Mark Kings Fairground, L.P. - - - -
Mark Shillington, L.P. - - - -
Mark 25th Street, L.P. - - - -
Mark Three Realty, L.P. - - - -
Mark Four Realty, L.P. - - - -
Mark Centers Pool Borrower 45,929,800 45,449,576 119 108
11 Westgate Mall Westgate Joint Venture 43,023,168 42,681,517 119 110
12 Westshore Mall Westshore Properties, L.L.C. 21,000,000 20,900,775 84 77
</TABLE>
<TABLE>
<CAPTION>
Original Remaining
Loan Amort Amort Monthly
Number Loan Name Borrower's Name Term Term Payment
<S> <C> <C> <C> <C> <C>
1 605 Third Avenue 605 Third Avenue LLC N/A N/A 791,700
2 Edens & Avant Pool Edens & Avant Financing Limited Partnership N/A N/A 503,396
3 FGS Pool Fort Tower I Associates Hotel Limited - - -
Partnership - - -
Fort Tower II Associates Hotel Limited - - -
Partnership - - -
Newark California Hotel Limited Partnership - - -
St. Petersburg Florida Hotel Limited Partnership - - -
Commack New York Hotel Limited Partnership - - -
Westbury New York Hotel Limited Partnership - - -
Woburn Massachusetts Hotel Limited Partnership - - -
Middletown New York Hotel Limited Partnership - - -
Alexandria Virginia Hotel Limited Partnership - - -
BH California Hotel Limited Partnership - - -
Woburn Massachusetts Hotel II Limited - - -
Partnership - - -
Omaha Nebraska Hotel Limited Partnership - - -
Clark New Jersey Hotel Limited Partnership 240 232 651,251
Palm Beach Florida Hotel and Office Building
Limited Partnership
Saddle Brook New Jersey Hotel Limited
Partnership
FGS Borrower
4 Mansion Grove Apartments Lick Mill Creek Apartments 360 357 553,565
5 North Shore Towers North Shore Towers Apartments Incorporated 360 326 593,499
6 Fashion Mall Galahad Real Estate Corporation 360 357 470,168
7 Yorktown Shopping Center Yorktown Joint Venture 300 261 473,000
8 Grand Kempinski Hotel Registry Dallas Associates Limited Partnership 300 300 447,704
9 Arrowhead Towne Center New River Associates 360 327 338,000
10 Mark Centers Pool Mark M.P.N.M., Limited Partnership - - -
Mark New Smyrna Limited Partnership - - -
Mark Troy, L.P. - - -
Mark Park Plaza, L.P. - - -
Mark Martintown, L.P. - - -
Mark Kings Fairground, L.P. - - -
Mark Shillington, L.P. - - -
Mark 25th Street, L.P. - - -
Mark Three Realty, L.P. - - -
Mark Four Realty, L.P. - - -
Mark Centers Pool Borrower 300 289 380,421
11 Westgate Mall Westgate Joint Venture 300 291 368,443
12 Westshore Mall Westshore Properties, L.L.C. 360 353 155,117
</TABLE>
<PAGE>
EXHIBIT C-1
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_______________________, being first duly sworn, deposes and says:
1. That he/she is a ___________________ of _____________________ (the
"Purchaser"), a _______________ duly organized and existing under the laws of
the State of _____________, on behalf of which he makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is ________________.
3. That the Purchaser of the Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1997-XL I, Class [R] [LR] (the "Class
[R] [LR] Certificate") is a Permitted Transferee (as defined in Article I of the
Pooling and Servicing Agreement, dated as of October 1, 1997, by and among
Morgan Stanley Capital I Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent (the "Pooling and Servicing
Agreement"), or is acquiring the Class [R] [LR] Certificate for the account of,
or as agent (including as a broker, nominee, or other middleman) for, a
Permitted Transferee and has received from such person or entity an affidavit
substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the Purchaser
intends to pay taxes associated with holding the Class [R] [LR] Certificate as
they become due.
5. That the Purchaser understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [LR] Certificate to
any person or entity from which the Purchaser has not received an affidavit
substantially in the form of this affidavit or as to which the Purchaser has
actual knowledge that the requirements set forth in paragraph 3, paragraph 4 or
paragraph 7 hereof are not satisfied or that the Purchaser has reason to know
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is not
purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a "disqualified
organization," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Purchaser agrees to
act as "tax matters person" and to perform the functions of "tax matters person"
of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section 4.04 of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the Trustee as the Purchaser's agent in performing the function of "tax matters
person."
10. The Purchaser agrees to be bound by and to abide by the provisions of
Section 5.02 of the Pooling and Servicing Agreement concerning registration of
the transfer and exchange of the Class [R] [LR] Certificate.
Capitalized terms used but not defined herein have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf by its ____________________ this ___th day of __________, 199__.
[Purchaser]
By:________________________________
Title:_____________________________
Name:______________________________
<PAGE>
The above-named ___________________ personally appeared before me and is
known or proved to me to be the same person who executed the foregoing
instrument and to be the _________________ of the Purchaser, and acknowledged to
me that he/she executed the same as his/her free act and deed and the free act
and deed of the Purchaser.
Subscribed and sworn before me this __th day of _________________, 199_.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the __th
day of _______________, 199_.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has
no actual knowledge that such affidavit is not true and has no reason to know
that the information contained in paragraph 4 thereof is not true.
Very truly yours,
_________________________
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services Group
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention:________________
Re: Transfer of Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 1997-XL1, Class[ ]
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of October 1, 1997 (the "Pooling and Servicing
Agreement"), by and among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation., as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on
behalf of the holders of Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1 (the "Certificates") in connection
with the transfer by ________________ (the "Seller") to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Principal Amount of Class
[_] Certificates, in certificated fully registered form, or, if applicable, a
beneficial interest of such aggregate Certificate Principal Amount in a Private
Global Certificate (either such interest, the "Transferred Interest"). Terms
used but not defined herein shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows:
[[For Institutional Accredited Investors only.]
1. We are an "institutional accredited investor" (an entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act (as defined below)) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Transferred Interest, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment. We are acquiring the Transferred Interest purchased by us for our
own account or for one or more accounts (each of which is an "institutional
accredited investor") as to each of which we exercise sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust for any costs
incurred by it in connection with this transfer.]
[[For Qualified Institutional Buyers only.]
1. The Purchaser is a "qualified institutional buyer" within the meaning of
Rule 144A (as defined below) promulgated under the Securities Act (as defined
below). The Purchaser is aware that the transfer is being made in reliance on
Rule 144A, and the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule 144A.]
2. The Purchaser's intention is to acquire the Transferred Interest (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A ("Rule 144A") promulgated
under the Securities Act of 1933 (the "Securities Act") or (ii) to
"institutional accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act, if the
Purchaser is a "qualified institutional buyer", or pursuant to an exemption from
the registration requirements of the Securities Act provided by Rule 144A under
the Securities Act (if applicable), subject in the case of this clause (ii) and
to (a) the receipt by the Certificate Registrar of a letter substantially in the
form hereof, (b) the receipt by the Certificate Registrar of an opinion of
counsel acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the Securities Act, and (c) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. It understands that the Transferred Interest has not
been registered under the Securities Act, by reason of a specified exemption
from the registration provisions of the Securities Act which may depend upon,
among other things, the bona fide nature of the Purchaser's investment intent
(or intent to resell to only certain investors in certain exempted transactions)
as expressed herein.
3. The Purchaser acknowledges that the Transferred Interest has not been
registered or qualified under the Securities Act or the securities laws of any
State or any other jurisdiction, and that the Transferred Interest cannot be
resold unless it is registered or qualified thereunder or unless an exemption
from such registration or qualification is available.
4. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of the
Transferred Interest in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
5. The Purchaser will not sell or otherwise transfer any portion of the
Transferred Interest, except in compliance with Section 5.02 of the Pooling and
Servicing Agreement.
6. Check one of the following:*
_______ The Purchaser is a "U.S. Person" and it has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
_______ The Purchaser is not a "U.S. Person" and under applicable law in
effect on the date hereof, no Taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to Distributions to be made on
the Transferred Interest. The Purchaser has attached hereto either (i) a duly
executed IRS Form W-8 (or successor form), which identifies such Purchaser as
the beneficial owner of the Transferred Interest and states that such Purchaser
is not a U.S. Person or (ii) two duly executed copies of IRS Form 4224 (or
successor form), which identify such Purchaser as the beneficial owner of the
Transferred Interest and state that interest and original issue discount on the
Transferred Interest is, or is expected to be, effectively connected with a U.S.
trade or business. The Purchaser agrees to provide to the Certificate Registrar
updated IRS Forms W-8 or IRS Forms 4224, as the case may be, any applicable
successor IRS forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after the occurrence of
any event requiring a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any of
its political subdivisions, or an estate the income of which is subject to U.S.
federal income taxation regardless of its source or a trust if a court within
the United States is able to exercise privacy supervision over the
administration of the trust and one or more such U.S. Persons have the authority
to control all substantial decisions of the trust.
*Each Purchaser must include one of the two alternative certifications.
<PAGE>
Please make all payments due on the Transferred Interests:**
______ (a) by wire transfer to the following account at a bank or entity in
New York, New York, having appropriate facilities therefor:
Account number __________ Institution ___________
______ (b) by mailing a check or draft to the following address:
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________
Very truly yours,
[The Purchaser]
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
**Only to be filled out by Purchasers of Individual Certificates. Please select
(a) or (b)
<PAGE>
EXHIBIT D-2
FORM OF ERISA REPRESENTATIONS LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset Backed Securities
Trust Services Group
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention:________________
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1, Class[ ]
Ladies and Gentlemen:
__________________________ (the "Purchaser") intends to purchase from
____________________ (the "Seller") $_____________ initial Certificate Principal
Amount or _____% Percentage Interest of Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1997-XL1, Class [_], CUSIP
No. [____] (the "Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of October 1, 1997,
by and among Morgan Stanley Capital I Inc., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer and Special Servicer, LaSalle National
Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All capitalized terms
used herein and not otherwise defined shall have the meaning set forth in the
Pooling and Servicing Agreement.
The Purchaser hereby certifies, represents and warrants to, and covenants
with, the Seller, the Certificate Registrar and the Trustee that:
1. The Purchaser is neither (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Keogh
plan, which is subject to Title I of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Code, or a governmental
plan (as defined in Section 3(32) of ERISA) that is subject to any Federal,
State or local law (a "Similar Law"), which is to a material extent, similar to
the foregoing provisions of ERISA or the Code (each, a "Plan"), nor (b) a
collective investment fund in which such Plans are invested, an insurance
company using assets of separate accounts or general accounts which include
assets of Plans (or which are deemed pursuant to ERISA or any Similar Law to
include assets of Plans) or other Person acting on behalf of any such Plan or
using the assets of any such Plan, other than (with respect to any transfer of a
Class B, Class C, Class D, Class G or Class H Certificate) an insurance company
using assets of its general account under circumstances whereby such purchase
and the subsequent holding of such Certificate by such insurance company would
be exempt from the prohibited transaction provisions of ERISA and Section 4975
of the Code under Prohibited Transaction Class Exemption 95-60.
2. The Purchaser understands that if the Purchaser is a Person referred to
in 1(a) or 1(b) above, except in the case of the Class R or Class LR
Certificates, which may not be transferred unless the transferee represents it
is not such a Person, such Purchaser is required to provide to the Seller, the
Trustee and the Certificate Registrar an Opinion of Counsel in form and
substance satisfactory to of the Seller, the Trustee and the Certificate
Registrar that the purchase or holding of the Certificates will not result in
the assets of the Trust Fund being deemed to be "plan assets" and subject to
Title I of ERISA, Section 4975 of the Code or Similar Law, will not constitute
or result in a prohibited transaction within the meaning of ERISA or Section
4975 of the Code or a materially similar characterization under any Similar Law,
and will not subject the Master Servicer, the Special Servicer, the Seller, the
Trustee or the Certificate Registrar to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or Similar Law)
in addition to those set forth in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be at the expense of the Trust Fund, the Master
Servicer, the Seller, the Trustee or the Certificate Registrar.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes the ERISA Representation
Letter on ______________ __, 19__.
Very truly yours,
_____________________________________
By:__________________________________
Name:________________________________
Title:_______________________________
<PAGE>
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information:
Name of Mortgagor: __________________
Master Servicer Loan No.: __________________
Custodian/Trustee
Name: __________________
Address: __________________
________________________
Custodian/Trustee Mortgage File No.: __________________
[Seller]
Name: __________________
Address: __________________
________________________
Certificates: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-XL1
The undersigned Master Servicer hereby acknowledges that it has received
from LaSalle National Bank, as Trustee for the Holders of Morgan Stanley Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 1997-XL1, the
documents referred to below (the "Documents"). All capitalized terms not
otherwise defined in this Request for Release shall have the meanings given them
in the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of October 1, 1997, by and among the Trustee, ABN AMRO Bank N.V., as
Fiscal Agent, Morgan Stanley Capital I Inc., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer and Special Servicer.
( ) Promissory Note dated _________, 199__, in the original principal sum
of $_____, made by _______, payable to, or endorsed to the order of, the
Trustee.
( ) Mortgage recorded on ____________ as instrument no. ________ in the
County Recorder's Office of the County of _________, State of ___________ in
book/reel/docket ___________ of official records at page/image ________.
( ) Deed of Trust recorded on __________ as instrument no. ________ in the
County Recorder's Office of the County of ___________, State of _______ in
book/reel/docket ____________ of official records at page/image.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_____________ as instrument no. _______ in the County Recorder's Office of the
County of _________, State of _______ in book/reel/docket __________ of official
records at page/image _____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Note or Mortgage.
( ) ___________________________
( ) ___________________________
( ) ___________________________
( ) ___________________________
The undersigned Master Servicer hereby acknowledges and agrees as follows:
(1) The Master Servicer shall hold and retain possession of the Documents
in trust for the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The Master Servicer shall not cause or permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Master Servicer assert or
seek to assert any claims or rights of set-off to or against the Documents or
any proceeds thereof.
(3) The Master Servicer shall return the Documents to the Custodian when
the need therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted to the
Collection Account and except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Master Servicer shall at
all times be earmarked for the account of the Trustee, and the Master Servicer
shall keep the Documents and any proceeds separate and distinct from all other
property in the Master Servicer's possession, custody or control.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:_________________________________
Title:______________________________
Date: _______________ __, 19__
<PAGE>
EXHIBIT F
SECURITIES LEGEND
Subject to the Pooling and Servicing Agreement, the Rule 144A Global
Certificates, Residual Certificates and Individual Certificates will bear a
legend (the "Securities Legend") to the following effect, unless the Certificate
Registrar determines otherwise in accordance with applicable law:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN
INSTITUTIONAL INVESTOR THAT IS, OR ALL THE EQUITY OWNERS OF WHICH ARE,
INSTITUTIONAL "ACCREDITED INVESTORS" AS SUCH TERM IS DEFINED IN RULE
501(A)(1),(2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR (3) BY AN
INITIAL INVESTOR THAT IS A QIB, TO AN INSTITUTIONAL ACCREDITED INVESTOR AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
Notwithstanding anything to the contrary, the Residual Certificates will
not bear clause (A)(2) and clause (A)(3) of the Securities Legend.
<PAGE>
EXHIBIT G
LOAN SALE AGREEMENT
This Loan Sale Agreement, dated as of October 1, 1997 (the "Agreement"), is
between Morgan Stanley Capital I Inc., a Delaware corporation (the "Depositor"),
and Morgan Stanley Mortgage Capital Inc., a New York corporation (the "Mortgage
Loan Seller"). The Mortgage Loan Seller agrees to sell, and the Depositor agrees
to purchase the mortgage loans (the "Mortgage Loans") described in, and set
forth in, the mortgage loan schedule attached as Exhibit A to this Agreement
(the "Mortgage Loan Schedule"). The Mortgage Loans were originated by Secore
Financial Corporation, a Pennsylvania corporation ("Secore"), Teacher's
Insurance Annuity Association, a New York corporation ("TIAA") and John Hancock
Mutual Life Insurance Company, a Massachusetts corporation ("John Hancock", and
each of John Hancock, Secore and TIAA, an "Originator"), and the Mortgage Loan
Seller acquired each of the Mortgage Loans on or prior to the Closing Date. The
Depositor intends to deposit the Mortgage Loans and other assets into a trust
(the "Trust") and cause the creation of a series of certificates to be known as
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1997-XL1 (the "Certificates"), evidencing beneficial ownership interests
in the Mortgage Loans and the other assets, under a Pooling and Servicing
Agreement, to be dated as of October 1, 1997 (the "Pooling and Servicing
Agreement"), among the Depositor, as seller, GMAC Commercial Mortgage
Corporation, as master servicer (in such capacity, the "Master Servicer"), GMAC
Commercial Mortgage Corporation, as special servicer (in such capacity, the
"Special Servicer"), ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"),
and LaSalle National Bank, as trustee (the "Trustee"). Capitalized terms used
but not otherwise defined herein shall have the respective meanings ascribed to
them in the Pooling and Servicing Agreement.
1. Purchase Price; Purchase and Sale. The purchase price (the "Purchase
Price") for the Mortgage Loans shall be an amount equal to [___________]%,
multiplied by the aggregate principal balance of the Mortgage Loans as of
October 1, 1997 (the "Cut-Off Date"), after application of scheduled payments of
principal due on or before the Cut-Off Date whether or not collected. In
addition to the Purchase Price as described above, the Depositor shall pay to
the Mortgage Loan Seller, at closing, accrued interest on the initial principal
amount of the related Mortgage Loans at the weighted average Mortgage Rate of
those Mortgage Loans, net of interest at the related Servicing Fee Rate. The
Purchase Price amount shall be payable by the Depositor to the Mortgage Loan
Seller on October 17, 1997 (the "Closing Date") in immediately available federal
funds. The closing for the purchase and sale of the Mortgage Loans shall take
place at the offices of Cadwalader, Wickersham & Taft, New York, New York, at
10:00 a.m. (New York time), on the Closing Date.
On the Closing Date, the Mortgage Loan Seller shall and does hereby sell,
transfer, assign, set over and convey to the Depositor, and the Depositor shall
and does hereby purchase all the right, title and interest of the Mortgage Loan
Seller in and to the Mortgage Loans, including all interest and principal due on
or with respect to the Mortgage Loans after the Cut-Off Date, together with all
of the Mortgage Loan Seller's right, title and interest in and to the proceeds
of any related title, hazard, primary mortgage or other insurance policies and
any related interest rate cap agreement. The Depositor hereby directs the
Mortgage Loan Seller, and the Mortgage Loan Seller hereby agrees, to deliver to
the Trustee all documents, instruments and agreements required to be delivered
by the Depositor to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Depositor or the Trustee shall
reasonably request.
2. Representations and Warranties.
(a) The Mortgage Loan Seller hereby represents and warrants to the
Depositor as of the date hereof and as of the Closing Date that:
(i) The Mortgage Loan Seller is a New York corporation duly
organized, validly existing and in good standing under the laws
of the State of New York, with full power and authority to own
its assets and conduct its business, is duly qualified as a
foreign partnership in good standing in all jurisdictions in
which the ownership or lease of its property or the conduct of
its business requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on its ability to perform its obligations hereunder, and
the Mortgage Loan Seller has taken all necessary action to
authorize the execution, delivery and performance of this
Agreement by it, and has the power and authority to execute,
deliver and perform under this Agreement and all the
transactions contemplated hereby, including, but not limited to,
the power and authority to sell, assign, transfer, set over and
convey the Mortgage Loans in accordance with this Agreement;
(ii) This Agreement has been duly authorized, executed and delivered
by the Mortgage Loan Seller and assuming its due authorization,
execution and delivery by the Depositor, will constitute a
legal, valid and binding obligation of the Mortgage Loan Seller,
enforceable against the Mortgage Loan Seller in accordance with
its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(iii) The execution and delivery of this Agreement by the Mortgage
Loan Seller and the performance of its obligations hereunder
will not conflict with any provision of any law or regulation to
which the Mortgage Loan Seller is subject, or conflict with,
result in a breach of, or constitute a default under, any of the
terms, conditions or provisions of any of the Mortgage Loan
Seller's organizational documents or any agreement or instrument
to which the Mortgage Loan Seller is a party or by which it is
bound, or any order or decree applicable to the Mortgage Loan
Seller, or result in the creation or imposition of any lien on
any of the Mortgage Loan Seller's assets or property, in each
case which would materially and adversely affect the ability of
the Mortgage Loan Seller to carry out the transactions
contemplated by this Agreement;
(iv) There is no action, suit, proceeding or investigation pending
or, to the Mortgage Loan Seller's knowledge, threatened against
the Mortgage Loan Seller in any court or by or before any other
governmental agency or instrumentality which would materially
and adversely affect the validity of the Mortgage Loans or the
ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement;
(v) The Mortgage Loan Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand
of any federal, state, municipal or governmental agency, which
default might have consequences that would materially and
adversely affect the condition (financial or other) or
operations of the Mortgage Loan Seller or its properties or
might have consequences that would materially and adversely
affect its performance hereunder;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by the Mortgage Loan Seller of, or
compliance by the Mortgage Loan Seller with, this Agreement or
the consummation of the transactions contemplated hereby, other
than those which have been obtained by the Mortgage Loan Seller;
and
(vii) The transfer, assignment and conveyance of the Mortgage Loans by
the Mortgage Loan Seller to the Depositor is not subject to bulk
transfer laws or any similar statutory provisions in effect in
any applicable jurisdiction.
(b) For purposes of the representations and warranties in this Section
2(b), the date of origination of each of the North Shore Towers Loan, the
Yorktown Shopping Center Loan, the Arrowhead Towne Center Loan and the Westgate
Mall Loan is the date on which the Mortgage Loan Seller took an assignment of
the existing note and mortgage from the prior lender. The Mortgage Loan Seller
hereby represents and warrants with respect to each Mortgage Loan that, as of
the date specified below or, if no such date is specified, as of the Closing
Date (except as may be specified in the related representation and warranty or
on Schedule 1 hereto):
(i) The information set forth in the mortgage loan schedule attached
to the Loan Sale Agreement as to the Mortgage Loan is complete,
true and correct in all material respects;
(ii) The Mortgage Loan Seller is the sole owner and holder of the
Mortgage Loan and has good and marketable title thereto, has
full right, power and authority to sell and assign such Mortgage
Loan free and clear of any interest or claim of a third party;
(iii) The Mortgage Loan has not been since the date of origination by
the applicable Originator, and currently is not, thirty or more
days delinquent, and the mortgagor is not in default thereunder
beyond any applicable grace period for the payment of any
obligation to pay principal and interest, taxes, insurance
premiums and required reserves;
(iv) The Mortgage Loan Seller has not advanced funds, or knowingly
received any advance of funds from a party other than the
mortgagor subject to the related Mortgage, directly or
indirectly, for the payment of any amount required by the
Mortgage Loan;
(v) (A) The Mortgage Loan documents have been duly and properly
executed, and (B) the Mortgage Loan documents are legal, valid
and binding obligations of the mortgagor, and their terms are
enforceable against the mortgagor, subject only to bankruptcy,
insolvency, moratorium, fraudulent transfer, fraudulent
conveyance and similar laws affecting rights of creditors
generally and to the application of general principles of
equity;
(vi) The lien of each Mortgage is insured by an ALTA lender's title
insurance policy or its equivalent as adopted in the applicable
jurisdiction issued by one or more nationally recognized title
insurance companies, insuring the Originator, its successors and
assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan after all
advances of principal, subject only to (a) the lien of current
real property taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other
matters of public record, none of which, individually or in the
aggregate, in the reasonable judgment of the Mortgage Loan
Seller, materially interferes with the current use of the
related Mortgaged Property or the security intended to be
provided by such Mortgage or with the mortgagor's ability to pay
its obligations when they become due or the value of the related
Mortgaged Property and (c) the exceptions (general and specific)
set forth in such policy, none of which, individually or in the
aggregate, in the reasonable judgment of the Mortgage Loan
Seller, materially interferes with the current use of the
related Mortgaged Property or security intended to be provided
by such Mortgage, with the mortgagor's ability to pay its
obligations when they become due or the value of the related
Mortgaged Property (or if a title insurance policy has not yet
been issued in respect of the Mortgage Loan, a policy meeting
the foregoing description is evidenced by a commitment for title
insurance "marked-up" at the closing of the Mortgage Loan). To
the actual knowledge of the Mortgage Loan Seller, no material
claims have been made under such title policy and no claims have
been made thereunder;
(vii) As of the date of origination of the Mortgage Loan there were
no, and to the best knowledge of the Mortgage Loan Seller there
are no, mechanics', materialman's or other similar liens or
claims which have been filed for work, labor or materials
affecting the Mortgaged Property which are or may be liens prior
to, or equal or coordinate with, the lien of the Mortgage,
unless such lien is insured against under the related title
insurance policy;
(viii) (A) Each building or other improvement located on any Mortgaged
Property was insured by a fire and extended perils insurance
policy, issued by an insurer or reinsured by an insurer meeting
the requirements of the Mortgage Loan documents, in an amount
not less than the replacement cost of the Mortgaged Property;
each Mortgaged Property was also covered by business
interruption insurance and comprehensive general liability
insurance in amounts generally required by institutional lenders
for similar properties; all premiums on such insurance policies
required to be paid as of the date hereof have been paid; such
insurance policies require prior notice to the insured of
termination or cancellation, and no such notice has been
received; and (B) the loan documents obligate the mortgagor to
maintain all such insurance and, at the mortgagor's failure to
do so, authorize the mortgagee to maintain such insurance at the
mortgagor's cost and expense and to seek reimbursement therefor
from such mortgagor;
(ix) As of the most recent date of inspection of each Mortgaged
Property by the Mortgage Loan Seller, based solely on the
Mortgage Loan Seller's review of the report prepared by the
engineer who inspected the structure, exterior walls, roofing,
interior construction, mechanical and electrical systems and
general conditions of the site, buildings and other improvements
with respect to the Mortgage Loan (which report indicated, where
appropriate, a variety of deferred maintenance items and
recommended capital improvements with respect to such Mortgaged
Property, as well as the estimated cost of such items and
improvements and the most recent visual inspection (as described
in (xviii) below) of the Mortgaged Property, no building or
other improvement on any Mortgaged Property has been affected in
any material manner or suffered any material loss as a result of
any fire, wind, explosion, accident, riot, war, or act of God or
the public enemy, and each Mortgaged Property is free of any
material damage that would affect materially and adversely the
value of the Mortgaged Property as security for the Mortgage
Loan and is in good repair. The Mortgage Loan Seller has neither
received notice, nor is otherwise aware, of any proceedings
pending for the total condemnation of any Mortgaged Property or
a partial condemnation of any portion material to the borrower's
ability to perform its obligations under its related Mortgage
Loan;
(x) To the Mortgage Loan Seller's best knowledge, after review of
compliance confirmations from applicable municipalities, surveys
and/or title insurance endorsements, none of the improvements
included for the purpose of determining the appraised value of
each Mortgaged Property at the time of the origination of the
Mortgage Loan lies outside of the boundaries and building
restriction lines of the Mortgaged Property, and no improvements
on adjoining properties materially encroach upon the Mortgaged
Property except those which are insured against by the title
insurance policy (including endorsements thereto) issued in
connection with the Mortgage Loan and all improvements on the
Mortgaged Property comply with the applicable zoning laws and/or
set-back ordinances in force when improvements were added;
(xi) The Mortgage Loan does not violate applicable usury laws;
(xii) Since the date of origination of the Mortgage Loan, the terms of
the Mortgage Loan have not been impaired, waived, altered,
satisfied, canceled, subordinated or modified in any respect
(except with respect to modifications the economic terms of
which are reflected in the mortgage loan schedule and which are
evidenced by documents in the Mortgage Loan file delivered to
the Trustee) and no portion of the Mortgaged Property has been
released from the lien of the Mortgage in any manner;
(xiii) All applicable mortgage recording taxes and other filing fees
have been paid in full or deposited with the issuer of the title
insurance policy issued in connection with the Mortgage Loan for
payment upon recordation of the relevant documents;
(xiv) Each assignment of leases and rents, if any, creates a valid
assignment of, or a valid security interest in, certain rights
under the related leases, subject only to a license granted to
the relevant mortgagor to exercise certain rights and to perform
certain obligations of the lessor under such leases, including
the right to operate the related Mortgaged Property, subject
only to those exceptions described in clause (vi) above. To the
best of the Mortgage Loan Seller's knowledge and without
affirmative investigation, no person other than the relevant
mortgagor owns any interest in any payments due under such
leases that is superior to or of equal priority with the
mortgagee's interest therein, subject only to those exceptions
described in clause (vi) above;
(xv) Each Mortgage, upon due recordation, is a valid and enforceable
first lien on the related Mortgaged Property, subject only to
those exceptions described in clause (vi) above;
(xvi) The Mortgage Loan Seller has not taken any action, nor has
knowledge that the mortgagor has taken any action, that would
cause the representations and warranties made by the mortgagor
in the Mortgage Loan documents not to be true;
(xvii) The proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder and the
Mortgage Loan Seller covenants that it will not make any future
advances under the Mortgage Loan to the mortgagor. Except for
the escrows and disbursements therefrom as contemplated by the
mortgage loan documents, any mortgagor requirements for on or
off-site improvements as to disbursement of any escrow funds
therefor have been complied with;
(xviii) The Mortgage Loan Seller has inspected or caused to be inspected
each Mortgaged Property within the past twelve months preceding
the date hereof;
(xix) The Mortgage Loan does not have a shared appreciation feature,
other contingent interest feature or negative amortization,
except with those Mortgage Loans that provide for Deferred
Interest;
(xx) The Mortgage Loan is a whole loan and contains no equity
participation (other than the Hancock Retained Interest) by the
lender;
(xxi) No fraudulent acts were committed by the Mortgage Loan Seller in
connection with the origination process of the Mortgage Loan;
(xxii) All taxes and governmental assessments that prior to the date of
origination of the Mortgage Loan became due and owing in respect
of each Mortgaged Property have been paid, or an escrow of funds
in an amount sufficient to cover such payments has been
established or are insured against by the title insurance policy
issued in connection with the origination of the Mortgage Loan;
(xxiii) To the extent required under applicable law, the Mortgage Loan
Seller was authorized to transact and do business in each
jurisdiction in which a Mortgaged Property is located at all
times when it held the Mortgage Loan;
(xxiv) To the best knowledge of the Mortgage Loan Seller, there is no
material default, breach, violation or event of acceleration
existing under any of the Mortgage Loan documents and the
Mortgage Loan Seller has not received actual notice of any event
(other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace
or cure period, would and does constitute a default, breach,
violation or event of acceleration; no waiver of the foregoing
exists and no person other than the holder of the Note may
declare any of the foregoing;
(xxv) Each Mortgage contains customary and enforceable provisions such
as to render the rights and remedies of the holder thereof
adequate for the realization against each related Mortgaged
Property of the material benefits of the security, including
realization by judicial or, if applicable, non-judicial
foreclosure, and there is no exemption available to the
mortgagor which would materially interfere with such right to
foreclosure;
(xxvi) (A) With respect to each Mortgaged Property, a Phase I
environmental report and, in certain cases, a Phase II
environmental report or an update to such Phase I report was
conducted by a licensed qualified engineer. The Mortgage Loan
Seller has reviewed each such report and update. (B) the
Mortgage Loan Seller, having made no independent inquiry other
than reviewing the environmental reports and updates referenced
herein and without other investigation or inquiry, has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not
disclosed in the related report and/or update. The Mortgage Loan
Seller has not received any actual notice of a material
violation of CERCLA or any applicable federal, state or local
environmental law with respect to any Mortgaged Property that
was not disclosed in the related report and/or update. (C) the
Mortgage Loan Seller has not taken any actions which would cause
any Mortgaged Property not to be in compliance with all federal,
state and local laws pertaining to environmental hazards;
(xxvii) The Mortgage Loan agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if (A) the mortgagor voluntarily transfers or
encumbers all or any portion of any related Mortgaged Property,
or (B) any direct or indirect interest in mortgagor is
voluntarily transferred or assigned, other than, in each case,
as permitted under the terms and conditions of the Mortgage Loan
documents;
(xxviii)To the best of the Mortgage Loan Seller's knowledge and without
affirmative investigation or inquiry, there is no pending
action, suit or proceeding, arbitration or governmental
investigation against the mortgagor or any Mortgaged Property an
adverse outcome of which could materially affect the mortgagor's
performance of its obligations under the Mortgage Loan
documents;
(xxix) The servicing and collection practices used by the Mortgage Loan
Seller, and to the best of the Mortgage Loan Seller's knowledge,
the origination practices of the related Originator, have been
in all respects legal, proper and prudent and have met customary
industry standards except to the extent that, in connection with
its origination, such standards were modified by the applicable
Originator in its reasonable discretion;
(xxx) In connection with the assignment, transfer or conveyance of any
individual Mortgage, the Note and Mortgage contain no provision
limiting the right or ability of the applicable Originator to
assign, transfer and convey the Mortgage to any other person or
entity;
(xxxi) If any Mortgaged Property is subject to any leases (other than
any ground lease referred to in (xxxv) below), to the best of
the Mortgage Loan Seller's knowledge, the mortgagor is the owner
and holder of the landlord's interest under any leases, and the
related Mortgage and Assignment of Leases, Rents and Profits, if
any, provides for the appointment of a receiver for rents or
allows the mortgagee to enter into possession to collect rent or
provide for rents to be paid directly to mortgagee in the event
of a default, subject to the exceptions described in clause (vi)
hereof;
(xxxii) If a Mortgage is a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly
designated and currently so serves and is named in the deed of
trust, and no fees or expenses are or will become payable to the
trustee under the deed of trust, except in connection with the
sale or release of the Mortgaged Property following default or
payment of the loan;
(xxxiii)Any insurance proceeds in respect of a casualty loss or taking
will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse
such proceeds (provided that such proceeds exceed the threshold
amount described in the loan documents) as the repair or
restoration progresses, or to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon, except to the extent of any excess proceeds
after restoration;
(xxxiv) Based on the Mortgage Loan Seller's review of the 100-year flood
plain map provided by FEMA, except for the Mortgaged Properties
set forth on Schedule 1, no Mortgaged Property is located in a
special flood hazard area (Zone A) as defined by the Federal
Insurance Administration and, with respect to the Mortgaged
Properties set forth on Schedule 1, flood insurance coverage has
been obtained;
(xxxv) With respect to any Mortgage which is secured in whole or in
part by the interest of a borrower as a lessee under a ground
lease and based upon the terms of the ground lease or an
estoppel letter from the ground lessor the following apply to
such ground lease:
(A) The ground lease or a memorandum thereof has been duly
recorded, the ground lease permits the interest of the
lessee thereunder to be encumbered by the related
Mortgage, does not restrict the use of the Mortgaged
Property by the lessee or its successors and assigns in
a manner that would adversely affect the security
provided by the related Mortgage, and there has not been
a material change in the terms of the ground lease since
its recordation, with the exception of written
instruments which are part of the related Mortgage Loan
documents delivered to the Trustee.
(B) The ground lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related ground lessor's
related fee interest.
(C) The borrower's interest in the ground lease is
assignable to the holder of the Mortgage upon notice to,
but without the consent of, the lessor thereunder and,
in the event that it is so assigned, it is further
assignable by the trustee and its successors and assigns
upon notice to, but without a need to obtain the consent
of, such lessor.
(D) To the best of the Mortgage Loan Seller's knowledge, as
of the origination date of the Mortgage Loan, the ground
lease was in full force and effect and no material
default had occurred under the ground lease and there
was no existing condition which, but for the passage of
time or the giving of notice, would result in a default
under the terms of the ground lease. No notice of
default under the ground lease has been received by the
Mortgage Loan Seller.
(E) The ground lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee;
and the ground lease, or an estoppel letter received by
the mortgagee from the lessor, further provides that
notice of termination given under the ground lease is
not effective against the mortgagee unless a copy of the
notice has been delivered to the mortgagee in the manner
described in such ground lease or estoppel letter.
(F) The mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under the
ground lease) to cure any default under the ground lease
which is curable after the receipt of notice of any
default, before the lessor thereunder may terminate the
ground lease.
(G) The ground lease either (i) has a term which extends not
less than 10 years beyond the maturity date of the
related Mortgage Loan or (ii) grants the lessee the
option to extend the term of the lease for a period (in
the aggregate) which exceeds ten years beyond the
maturity date of the related Mortgage Loan.
(H) The ground lease requires the lessor to enter into a new
lease with the mortgagee upon termination of the ground
lease for any reason, including rejection of the ground
lease in a bankruptcy proceeding, provided the mortgagee
cures the lessee's defaults to the extent they are
curable and succeeds to the interest of the mortgagee.
(I) Under the terms of the ground lease and the related
Mortgage, taken together, any related insurance proceeds
will be applied either to the repair or restoration of
all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right
to hold and disburse the proceeds as the repair or
restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon.
(J) Such ground lease does not impose any material
restrictions on subletting.
(K) Either the ground lease or the related Mortgage contains
the borrower's covenant that such ground lease shall not
be amended, canceled, or terminated without the prior
written consent of the mortgagee.
(L) Either the ground lease or an estoppel letter contains a
covenant that the lessor thereunder is not permitted in
the absence of an uncured default under the ground
lease, 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;
(xxxvi) (A) the Mortgage Loan is directly secured by a Mortgage on a
commercial real property, and (B) the fair market value of such
real property, as evidenced by an appraisal conducted within 12
months of the origination of the Mortgage Loan, or as determined
by the Mortgage Loan Seller based on market studies and pursuant
to its underwriting standards, was at least equal to 80% of the
principal amount of the Mortgage Loan (I) at origination (or if
the Mortgage Loan has been modified in a manner that constituted
a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last
such modification) or (II) at the Closing Date; provided that
the fair market value of the real property interest must first
be reduced by (1) the amount of any lien on the real property
interest that is senior to the Mortgage Loan (unless such senior
lien also secures a Mortgage Loan, in which event the
computation described in (I) and (II) shall be made on an
aggregated basis) and (2) a proportionate amount of any lien
that is in parity with the Mortgage Loan (unless such other lien
secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in (I)
and (II) shall be made on an aggregate basis); and
(xxxvii)To the best knowledge of the Mortgage Loan Seller, certificates
of occupancy and building permits, as applicable, have been
issued with respect to the Mortgaged Property;
(xxxviii) Any escrow accounts for taxes or other reserves required to be
funded on the date of origination of the Mortgage Loan pursuant
to the Mortgage Loan documents have been funded and all such
escrow accounts required to have been funded as of the Cut-Off
Date (taking into account any applicable notice and grace
period) have been funded;
(xxxix) The related Assignment of Mortgage constitutes a legal, valid
and binding assignment of such Mortgage to the Depositor, and
the related Reassignment of Assignment of Leases, Rents and
Profits, if any, constitutes a legal, valid and binding
assignment thereof to the Depositor;
(xl) The related Note is not, and has not been since the date of
origination of the Mortgage Loan, secured by any collateral
except the lien of the related Mortgage, any related Assignment
of Leases, Rents and Profits and any related security agreement
and escrow agreement; the security for the Mortgage Loan
consists only of the related Mortgaged Property or Properties,
any leases (including without limitation any credit leases)
thereof, and any appurtenances, fixtures and other property
located thereon; and such Mortgaged Property or Properties do
not secure any mortgage loan other than the Mortgage Loan being
transferred and assigned to the Depositor hereunder (except for
Mortgage Loans, if any, which are cross-collateralized with
other Mortgage Loans being conveyed to the Depositor or
subsequent transferee hereunder and identified on the Mortgage
Loan Schedule); and
(xli) To the Mortgage Loan Seller's knowledge, based on due diligence
that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage
Loan, the related Mortgagor was in possession of all material
licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as
it was then operated.
(xlii) The Mortgage Loan is directly secured by a first lien on one or
more parcels of real estate upon which is located one or more
commercial structures; and the Mortgage Loan was originated by a
savings and loan association, savings bank, commercial bank,
credit union, insurance company, or similar institution which is
supervised and examined by a Federal or State authority, or by a
mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National
Housing Act.
3. Notice of Breach; Cure and Repurchase. (a) Pursuant to the Pooling and
Servicing Agreement, the Mortgage Loan Seller and the Depositor shall be given
notice of any breach of a representation or warranty made with respect to, or
any defect that materially and adversely affects the value of, a Mortgage Loan
or the interests of the holders of the Certificates therein.
(b) Upon notice pursuant to Section 3(a) herein, the Mortgage Loan Seller
shall cure such breach or defect, as the case may be, in all material respects
or repurchase the affected Mortgage Loan in accordance with the terms set forth
in Section 2.03 of the Pooling and Servicing Agreement. If the affected Mortgage
Loan is to be repurchased, the Mortgage Loan Seller shall remit the Repurchase
Price in immediately available federal funds to the Master Servicer.
(c) Upon any repurchase of a Mortgage Loan contemplated by Section 3(b)
above, the Trustee, the Master Servicer and the Special Servicer shall each
tender to the Mortgage Loan Seller all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by it, as well as such
funds as pursuant to the Pooling and Servicing Agreement are to be paid to the
Mortgage Loan Seller in connection with such repurchase, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the Mortgage Loan
Seller.
(d) This Section 3 of this Agreement provides the sole remedy available to
the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any defect in a Mortgage File or any breach of any representation or
warranty set forth in or required to be made pursuant to Section 2 of this
Agreement.
(e) The Mortgage Loan Seller hereby acknowledges the assignment by the
Depositor to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Certificateholders, of the representations and warranties
contained herein and of the obligation of the Mortgage Loan Seller to repurchase
a Mortgage Loan pursuant to this Section. The Trustee or its designee may
enforce such obligations as provided in Section 8 hereof.
4. Representations, Warranties and Agreements of Depositor.
(a) The Depositor hereby represents and warrants to the Mortgage Loan
Seller, as of the date hereof (or such other date as is specified in the related
representation or warranty), as follows:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its assets and
conduct its business, is duly qualified as a foreign corporation
in good standing in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires
such qualification, except where the failure to be so qualified
would not have a material adverse effect on the ability of the
Depositor to perform its obligations hereunder, and the
Depositor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and
has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby;
(ii) This Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes a valid and binding obligation
of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, reorganization, insolvency, moratorium
and other similar laws affecting the enforcement of creditors'
rights generally and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) The execution and delivery of this Agreement by the Depositor
and the performance of its obligations hereunder will not
conflict with any provision of any law or regulation to which
the Depositor is subject, or conflict with, result in a breach
of or constitute a default under any of the terms, conditions or
provisions of any of the Depositor's organizational documents or
any agreement or instrument to which the Depositor is a party or
by which it is bound, or any order or decree applicable to the
Depositor, or result in the creation or imposition of any lien
on any of the Depositor's assets or property, in each case which
would materially and adversely affect the ability of the
Depositor to carry out the transactions contemplated by this
Agreement;
(iv) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Depositor, threatened against the
Depositor in any court or by or before any other governmental
agency or instrumentality which would materially and adversely
affect the validity of this Agreement or any action taken in
connection with the obligations of the Depositor contemplated
herein, or which would be likely to impair materially the
ability of the Depositor to perform under the terms of this
Agreement;
(v) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely
affect the condition (financial or other) or operations of the
Depositor or its properties or might have consequences that
would materially and adversely affect its performance hereunder;
and
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by the Depositor of or compliance by
the Depositor with this Agreement or the consummation of the
transactions contemplated by this Agreement other than those
that have been obtained by the Depositor.
(b) The Mortgage Loan Seller hereby covenants and agrees with the Depositor
that the Mortgage Loan Seller shall either (i) arrange for John Hancock to
subservice the North Shore Towers Loan or (ii) pay to GMAC Commercial Mortgage
Corporation ("GMACC") such amount that GMACC shall require in order for GMACC to
service the North Shore Towers Loan.
5. Depositor's Conditions to Closing. The obligations of the Depositor
under this Agreement shall be subject to the satisfaction, on the Closing Date,
or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be performed by
it at or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Mortgage Loan Seller under this Agreement shall be true and
correct as of the date hereof and as of the Closing Date, and no event shall
have occurred which, with notice or the passage of time, or both, would
constitute a default under this Agreement, and the Depositor shall have received
a certificate to that effect signed by an authorized officer of the Mortgage
Loan Seller.
(b) The Depositor or its designee shall have received all of the following
closing documents, in such forms as are agreed upon and acceptable to the
Depositor and in form and substance satisfactory to the Depositor, the
Underwriter and their respective counsel, duly executed by all signatories other
than the Depositor as required pursuant to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage Files shall be delivered to and held by the
Trustee on behalf of the Depositor;
(ii) the final Mortgage Loan Schedule;
(iii) an officer's certificate from the Mortgage Loan Seller dated as
of the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of Mortgage Loan Seller's counsel, subject to
customary exceptions and carve-outs, which state in substance
the opinions set forth on Exhibit C hereto, and, in addition, an
opinion delivered on the date of the Prospectus as to the
matters set forth in the last paragraph of Exhibit C hereto;
(v) such other documents, certificates and opinions as may be
necessary to secure for the Certificates the following ratings
from Fitch Investors Service, L.P. ("Fitch"), Moody's Investors
Service, Inc. ("Moody's") and Standard & Poor's Ratings Service
("S&P", and collectively with Fitch and Moody's, the "Rating
Agencies"), respectively: for each of the Class A-1, Class A-2,
Class A-3, a "AAA", "Aaa" and "AAA" rating; for the Class X
Certificates, a "AAA" rating from Fitch and a "Aaa" from
Moody's; for the Class B Certificates, a "AAA", "Aaa" and "AA+"
rating; for the Class C Certificates, a "AA+", "Aa1" and "AA"
rating; for the Class D Certificates, a "A+", "A2" and "A"
rating; for the Class E Certificates, a "BBB", "Baa2" and "BBB"
rating; for the Class F Certificates, a "BBB-" rating from
Fitch; for the Class G Certificates, a "BB", "Ba3" and "BB"
rating; for the Class H Certificates, a "B-", "B2" and "B"
rating; and
(vi) a letter from the independent accounting firm of KPMG Peat
Marwick LLP in form satisfactory to the Depositor, relating to
certain information regarding the Mortgage Loans as set forth in
the Prospectus Supplement and a letter from KPMG Peat Marwick
LLP regarding certain information regarding the Certificates as
set forth in the Prospectus Supplement;
(c) The Mortgage Loan Seller hereby agrees to furnish such other
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans or itself as may be reasonably requested by the Depositor in
order for the Depositor to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement, the Pooling and Servicing Agreement or this Agreement.
6. Accountants' Letters. The parties hereto shall cooperate with KPMG Peat
Marwick LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to deliver the letters required by the
Underwriting Agreement.
7. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Depositor, will be mailed, hand delivered,
couriered or sent by facsimile transmission to it at 1585 Broadway, New York,
New York 10036, attention of Cecilia Tarrant, fax number (212) 761-6028, or, if
sent to the Mortgage Loan Seller, will be mailed, hand delivered, couriered or
sent by facsimile transmission and confirmed to it at 1585 Broadway, New York,
New York 10036, attention of Cecilia Tarrant, fax number (212) 761-0525, in
either case with a copy to Gregory Walker, Esq., fax number (212) 761-8915.
8. Trust as Beneficiary. The representations, warranties and agreements
made by the Mortgage Loan Seller in this Agreement are made for the benefit of,
and, to the extent they are assigned by the Depositor to the Trustee under the
Pooling and Servicing Agreement, may be enforced by or on behalf of, the
Trustee, the Master Servicer or the Special Servicer, as provided in the Pooling
and Servicing Agreement, to the same extent that the Depositor has rights
against the Mortgage Loan Seller under this Agreement in respect of
representations, warranties and agreements made by the Mortgage Loan Seller
herein.
9. Miscellaneous. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, without regard to
conflicts of laws principles. 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 or waived in any manner which would
have a material adverse effect on Certificateholders without the prior written
consent of the Trustee. 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 herein.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or in
certificates of officers of the Mortgage Loan Seller and the Depositor submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive transfer and sale of the Mortgage Loans to the Depositor and by the
Depositor to the Trustee notwithstanding any language to the contrary contained
in any endorsement of any Mortgage Loan.
11. Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, this Agreement shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
12. Further Assurances. The Mortgage Loan Seller and the Depositor agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the Depositor and the Mortgage Loan Seller have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
MORGAN STANLEY CAPITAL I INC.
By: ______________________________________
Name: _______________________________
Title: _______________________________
MORGAN STANLEY MORTGAGE CAPITAL INC.
By: ______________________________________
Name:_________________________________
Title: _______________________________
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<PAGE>
Exhibit B-2
EXHIBIT B
FORM OF OFFICER'S CERTIFICATE
I, ________________, hereby certify that I am a duly elected and acting
____________________ of Morgan Stanley Mortgage Capital Inc. (the "Seller"), in
connection with the sale of certain mortgage loans to Morgan Stanley Capital I
Inc. (the "Depositor") pursuant to that certain Loan Sale Agreement, dated as of
October 1, 1997 (the "Loan Sale Agreement"), between the Depositor and the
Depositor, and hereby certify further as follows:
1. The Seller is a New York corporation duly organized and existing under
the laws of 1the State of New York.
2. Attached hereto as Exhibit A is a true and correct copy of the
Articles of Incorporation of the Seller.
3. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of the Seller, as in effect at all times on and after _____________,
____, through the date hereof.
4. The resolutions attached hereto as Exhibit C (the "Resolutions") were
adopted by unanimous consent of the board of directors of the Seller
as of _______________, 1997.
5. There have been no amendments, waivers or modifications of the
Articles of Incorporation other than as provided in Exhibit A, and no
action has been taken by the Seller or its shareholders, directors or
officers in contemplation of the filing of any such amendment or other
documents or in contemplation of the liquidation or dissolution of the
Seller;
6. The Resolutions (a) represent the only resolutions of the board of
directors or shareholders of the Seller relating to the sale of the
mortgage loans referred to in the Mortgage Loan Purchase and Sale
Agreement; (b) have not been amended, modified, rescinded or repealed
by any subsequent action of the Seller's board of directors or
shareholders; and (c) were in full force and effect at all times on
_________________, 1997 and thereafter through the date hereof;
7. Attached hereto as Exhibit D is a certificate of the Secretary of the
State of New York dated ___________________, 1997, with respect to the
good standing of the Seller in such State;
8. The representations and warranties of the Seller in the Loan Sale
Agreement are true and correct in all material respects on and as of
the date hereof.
9. On or prior to the date hereof, the Seller has complied with all
agreements and performed or satisfied all conditions on its part to be
performed or satisfied at or prior to the date hereof.
10. Each person who, as a partner, agent or representative of the Seller,
signed the Loan Sale Agreement or any other document or certificate
delivered on or before the date hereof in connection with the
transactions contemplated by the Loan Sale Agreement was, at the
respective times of such signing and delivery, and is now, duly
elected or appointed, qualified and acting as such partner, agent or
representative, and the signature of such persons appearing on such
documents are their genuine signatures.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, I have hereunto signed my name as of ________, 1997.
By: ______________________________
Name: ________________________
Title:________________________
<PAGE>
EXHIBIT C
FORM OF LEGAL OPINION
1. The Mortgage Loan Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York, with full
corporate power and authority to own its assets and conduct its business, is in
good standing in the State of New York, and the Mortgage Loan Seller has taken
all necessary action to authorize the execution, delivery and performance of the
Mortgage Loan Purchase and Sale Agreement by it, and has the power and authority
to execute, deliver and perform the Mortgage Loan Purchase and Sale Agreement
and all the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with the Mortgage Loan Purchase and Sale Agreement.
2. Assuming the due authorization, execution and delivery of the Mortgage
Loan Purchase and Sale Agreement by the Depositor, the Mortgage Loan Purchase
and Sale Agreement and all of the obligations of the Mortgage Loan Seller under
the Mortgage Loan Purchase and Sale Agreement are the legal, valid and binding
obligations of the Mortgage Loan Seller, enforceable against the Mortgage Loan
Seller in accordance with the terms of the Mortgage Loan Purchase and Sale
Agreement, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
and except to the extent rights to indemnity and contribution may be limited by
applicable law.
3. The execution and delivery of the Mortgage Loan Purchase and Sale
Agreement by the Mortgage Loan Seller and the performance of its obligations
under the Mortgage Loan Purchase and Sale Agreement will not conflict with any
provision of any law or regulation to which the Mortgage Loan Seller is subject,
or conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any of the Mortgage Loan Seller's
organizational documents or, to our knowledge, any agreement or instrument to
which the Mortgage Loan Seller is a party or by which it is bound, or any order
or decree applicable to the Mortgage Loan Seller, or result in the creation or
imposition of any lien on any of the Mortgage Loan Seller's assets or property,
in each case which would materially and adversely affect the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by the Mortgage
Loan Purchase and Sale Agreement.
4. To our knowledge, there is no action, suit, proceeding or investigation
pending or threatened in writing against the Mortgage Loan Seller in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Mortgage Loan Seller to carry out the transactions contemplated
by this Agreement.
5. To our knowledge, the Mortgage Loan Seller is not in default with
respect to any order or decree of any court or any order, regulation or demand
of any federal, state, municipal or governmental agency, which default might
have consequences that would materially and adversely affect the condition
(financial or other) or operations of the Mortgage Loan Seller or its properties
or might have consequences that would materially and adversely affect its
performance under the Mortgage Loan Purchase and Sale Agreement.
6. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Mortgage Loan Seller of or compliance by the Mortgage Loan
Seller with the Mortgage Loan Purchase and Sale Agreement or the consummation of
the transactions contemplated by the Mortgage Loan Purchase and Sale Agreement,
other than those which have been obtained by the Mortgage Loan Seller.
<PAGE>
SCHEDULE 1
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation Exception
(vii) Arrowhead Towne Center: there are two liens (each relating
to City of Glendale bond obligations) shown on the title
policy, one in the amount of approximately $5.6 million and
the other in the amount of approximately $9.5 million, each
payable in annual installments of principal, plus
semi-annual installments of interest at 6%.
(viii) Yorktown Shopping Center: the mortgage loan documents
obligate the mortgagor to maintain all insurance as
described in the loan documents, but do not specifically
authorize the mortgagee to pay for insurance at the
mortgagor's cost and expense and seek reimbursement.
Westgate Mall: the mortgage loan documents obligate the
mortgagor to maintain all insurance as described in the loan
documents, but do not specifically authorize the mortgagee
to pay for insurance at the mortgagor's cost and expense and
seek reimbursement.
Westshore Mall: certain insurers providing property damage
and rental loss insurance are rated by S&P lower than "AA,"
the rating required under the related mortgage, or have a
Best financial size category less than IX, as the mortgage
requires.
Fashion Mall: one insurer providing property damage and
rental loss insurance is rated by S&P lower than "AA," the
rating required under the related mortgage; and one insurer
providing liability insurance has a Best financial size
category less than IX, as the mortgage requires.
605 Third Avenue: most insurers providing property damage,
rental loss and liability insurance are rated by S&P lower
than "AA," the rating required under the related mortgage;
and one insurer providing property damage and rental loss
insurance has a Best financial size category less than IX,
as the mortgage requires.
(x) Grand Kempinski Hotel: (a) notwithstanding that a zoning
ordinance requires 1,438 parking spaces, the Grand Kempinski
Hotel has 861 parking spaces. A City of Addison informal
policy relating to hotel parking requirements, which de
facto supersedes the zoning ordinance in the city's
practical enforcement of parking requirements, would require
1,019 spaces. The City of Addison has confirmed in writing
that it does not consider the Grand Kempinski Hotel to be
non-conforming because of parking issues, and an unqualified
certificate of occupancy has been issued and is in effect;
(b) although the same zoning ordinance limits the height of
the Grand Kempinski Hotel to either 117 feet, or "as
approved by [the] FAA," the Grand Kempinski Hotel is 192
feet tall. However, the city has no documentation regarding
the FAA approval height, and the city has delivered a letter
stating that the structure's height is acceptable and does
not encroach onto air traffic.
(xviii) Mark Centers Trust Pool: The Mortgage Loan Seller caused the
Mark Centers Pool Properties to be inspected during the past
18 months preceding the date hereof, rather than the past 12
months.
(xxvii) Yorktown Shopping Center: (B) TIAA entered into letter
agreements which predate the mortgage and contemplate the
mortgage; such letter agreements include the basis upon
which TIAA would grant a waiver to certain terms of the
mortgage such as those relating to transfers of interest and
releases.
(xxx) 605 Third Avenue: the mortgagee may only assign or otherwise
transfer the mortgage loan (without the consent of the
mortgagor) (i) to Morgan Stanley Mortgage Capital Inc., (ii)
to any affiliate of the lender or Morgan Stanley Mortgage
Capital Inc., (iii) in connection with any securitization
(as defined in the loan documents) of the mortgage loan,
and/or (iv) to a Major Institutional Lender; a "Major
Institutional Lender" means: (i) Morgan Stanley Mortgage
Capital Inc. or any affiliate thereof, or (ii) an insurance
company, bank, savings and loan association, trust company,
commercial credit corporation, pension plan, pension fund or
pension fund advisory firm, mutual fund or other investment
company, governmental entity or plan, "qualified
institutional buyer" within the meaning of Rule 144A under
the Securities Act of 1933, as amended (other than a
broker/dealer) or an institution substantially similar to
any of the foregoing, in each case under this clause (ii)
having at least $250,000,000 in capital/statutory surplus or
shareholder's equity and at least $12,000,000,000 in total
assets, and being experienced in making commercial real
estate loans, or (iii) any entity wholly-owned by any one or
more institutions meeting the foregoing criteria. In
addition, from and after the occurrence of an event of
default, the mortgagee also has the right to make a transfer
of the 605 Third Avenue Loan to a person not described above
(an "Alternative Third Avenue Loan Transferee"), so long as
such transfer is made in accordance with the following
procedures: (i) The mortgagee shall obtain from the proposed
Alternative Third Avenue Loan Transferee a written term
sheet setting forth the material terms and conditions of
such proposed transfer, and shall deliver a copy of such
term sheet to the Borrower for the 605 Third Avenue Loan
(the "Third Avenue Borrower"); (ii) Within 15 days the Third
Avenue Borrower shall either (A) elect within such 15 day
period itself to purchase the 605 Third Avenue Loan on terms
identical to those in such term sheet, in which event the
Third Avenue Borrower shall deliver to the mortgagee within
such 15 day period (1) a term sheet executed by the Third
Avenue Borrower containing terms identical to such term
sheet delivered by the mortgagee and (2) a non-refundable
deposit in the amount of 5% of the purchase price or (B)
elect not to purchase the 605 Third Avenue Loan. In the
event the Third Avenue Borrower fails to deliver to the
mortgagee both the term sheet and the deposit within the 15
day period as described above, then the Third Avenue
Borrower shall be deemed to have elected not to purchase the
605 Third Avenue Loan, and the mortgagee shall have the
right to make the transfer to the proposed Third Avenue
Alternative Transferee on the terms set forth in the initial
term sheet; provided that such transfer must be made within
90 days of expiration of such 15 day period, and if not made
in such period the mortgagee will again have to undergo the
foregoing procedures in order to transfer the loan to an
Alternative Third Avenue Transferee. In the event the Third
Avenue Borrower delivers to the mortgagee both the term
sheet and the deposit within the 15 day period as described
above, then the Third Avenue Borrower shall have 90 days in
which to close its purchase of the 605 Third Avenue Loan.
(xxxiii) Edens & Avant Pool: Blockbuster Broad River (11) -- (a)
insurance proceeds may be disbursed to the mortgagor who may
restore the property, defease the mortgage loan with respect
to the related mortgaged property or substitute in a
qualified substitute property; or (B) if proceeds are
required to be paid to the mortgagee, the mortgagee must use
such proceeds to prepay the mortgage loan.
North Shore Towers: John Hancock entered into a letter agreement
whereby it agreed to permit the use of any fire insurance
loss proceeds received by it for restoration, provided the
North Shore Towers Loan is not in default at such time.
(xxxiv) Edens & Avant: Capital Square
Crossroads S/C
Edisto Village
Lawndale Village
Northside-Clinton
Shoppers Port
Trenholm Plaza
Woodberry Plaza
Ashford St. Petersburg Florida
Financial Pool: Woburn, Massachusetts Howard
Johnson
Mark Centers Northside Mall
Trust Pool: Ames Plaza
Kings Fairground
(xxxv) (A) Ashford Financial Pool: The Ashford Westbury Sublease is
silent as to whether the interest of the lessee thereunder
may be encumbered by the related Mortgage.
(B) Edens & Avant Pool: Ravenel Town Center (52) -- no
estoppel certificate was obtained with respect to the lease;
however, the lease provides that the leasehold estate is
indefeasible for the term and the lessor's sole and
exclusive remedy for a breach by the lessee is an action for
specific performance or damages.
(E) Ashford Financial Pool: The Ashford Westbury Sublease
does not provide the protections to the mortgagee set forth
in this subsection.
Edens & Avant Pool: Blockbuster Broad River (11) -- the
lease does not specifically provide that a notice of
termination is not effective against the mortgagee unless a
copy of the notice has been delivered to the mortgagee.
Edens & Avant Pool: Stephen's Plaza (6) -- neither the lease
nor the estoppel specifically provide that a notice of
termination is not effective against the mortgagee unless a
copy of the notice has been delivered to the mortgagee.
(F) Ashford Financial Pool: The Ashford Westbury Sublease
does not provide the protections to the mortgagee set forth
in this subsection.
(G) Ashford Financial Pool: Both the Ashford Westbury
Sublease and the Ashford Westbury Ground Lease expire, with
no further renewals, in 2014, which is prior to the Maturity
Date of the Ashford Financial Pool Loan. However,
thereafter, there will be no leasehold estate in the
applicable property and the mortgage will be secured by the
fee estate in such property.
(H) Ashford Financial Pool: The Ashford Westbury Sublease
does not provide the protections to the mortgagee set forth
in this subsection.
(I) Edens & Avant Pool: Blockbuster Broad River (11) -- the
lease does not specifically entitle the mortgagee or trustee
to casualty insurance proceeds; in addition see the
corresponding exception to (xxxiii).
Ashford Financial Pool: neither the Ashford Radisson Plaza
Ground Lease nor the Ashford Parking Garage Ground Lease
provides that the mortgagee has the right to supervise and
control the receipt and disbursement of the proceeds. In
addition, the Ashford Parking Garage Ground Lease provides
that the lessee shall be entitled to recover all insurance
proceeds if lessee is obligated to restore the property;
however, the lease provides that the insurance policy may
make the mortgagee the loss payee.
(xl) 605 Third Avenue: the note is also secured by a $5,000,000
letter of credit which increases to $15,000,000 over a six
year period; the letter of credit can be applied to
principal if the mortgage loan is not repaid by the
mortgagor by the Effective Maturity Date.
<PAGE>
EXHIBIT H
FORM OF SUMMARY REPORT
GMACCM# PROPERTY:
SUB-SERVICER NUMBER: INTEREST RATE:
P&I: QUARTER ENDED:
CURRENT PRINCIPAL BALANCE:
OCCUPANCY: VACANCY:
INCOME QUARTER/YEAR ENDED QUARTER/YEAR ENDED
GROSS INCOME
- --------------------------------------------------------------------------------
VACANCIES
- --------------------------------------------------------------------------------
BAD DEBT / UNCOLL.
- --------------------------------------------------------------------------------
ADDITIONAL INCOME
- --------------------------------------------------------------------------------
TOTAL INCOME
EXPENSES
REAL ESTATE TAXES
- --------------------------------------------------------------------------------
PROPERTY INSURANCE
- --------------------------------------------------------------------------------
MANAGEMENT FEES
- --------------------------------------------------------------------------------
UTILITIES
- --------------------------------------------------------------------------------
ADMINISTRATIVE
- --------------------------------------------------------------------------------
MAINTENANCE/REPAIRS
- --------------------------------------------------------------------------------
REPLACEMENT RESERVES
- --------------------------------------------------------------------------------
RR RELEASES
- --------------------------------------------------------------------------------
MISC.
- --------------------------------------------------------------------------------
NET EXPENSES
- --------------------------------------------------------------------------------
DEPRECIATION
- --------------------------------------------------------------------------------
AMORT./INTEREST
- --------------------------------------------------------------------------------
TOTAL EXPENSES
NET OPERATING INCOME
- --------------------------------------------------------------------------------
1ST MTG. DEBT SERVICE
- --------------------------------------------------------------------------------
NET INCOME/LOSS
- --------------------------------------------------------------------------------
DEBT COVERAGE
OTHER DEBT
- --------------------------------------------------------------------------------
NET INCOME/LOSS
- --------------------------------------------------------------------------------
NEW DEBT COVERAGE
- --------------------------------------------------------------------------------
EXPENSE RATIO
- --------------------------------------------------------------------------------
COMMENTS:
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
EXHIBIT I
FORM OF REPORT TO CERTIFICATEHOLDERS
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9 WAC:
Chicago, IL 60603 WAMM:
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
<S> <C> <C>
Number Of Pages
---------------
Table of Contents 1
REMIC Certificate Report 1
Other Related Information 2
Asset Backed Facts Sheets 1
Delinquency Loan Detail 1
Mortgage Loan Characteristics 2
Loan Level Listing 1
-
TOTAL PAGES INCLUDED IN THIS PACKAGE 9
=
Specially Serviced Loan Detail Appendix A
Modified Loan Detail Appendix B
Realized Loss Detail Appendix C
===================================================================================================================================
</TABLE>
Page 1 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9 WAC:
Chicago, IL 60603 WAMM:
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST INTEREST PASS-THROUGH
CLASS FACE VALUE(1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT ADJUSTMENT RATE(2)
CUSIP Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Next Rate(3)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
===================================================================================================================================
Total P&I Payment 0.00
===========================
Notes: (1) N denotes notional balance not included in total
(2) Interest Paid minus Interest Adjustment minus Deferred Interest equals Accrual
(3) Estimated
</TABLE>
Page 2 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 OTHER RELATED INFORMATION
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
===================================================================================================================================
Certificate Excess Prepay Unpaid App. Reduction Yield Maint.
Class Interest Shortfall Interest Cap. Amount Premiums
----------- ------------------ -------- -------------- ------------
-----------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------
Advances (INTEREST AT GROSS)
-----------------------------------------------------
Prior Outstanding Current Month Recovered Advances Outstanding
------------------------- ------------------------- ------------------------ --------------------------
Principal Interest Principal Interest Principal Interest Principal Interest
------------ ---------- ------------ ---------- ------------ ---------- ------------ -----------
Servicer:
Trustee:
Fiscal Agent:
---------------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------------------------
Current Period Collected Servicing Fees:
Current Period Special Servicing Fees:
Additional Servicing Compensation:
===================================================================================================================================
</TABLE>
Page 3 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 OTHER RELATED INFORMATION
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
Summary of REO Property:
---------------------------------------------------------------------------------------------------------------
Date of Amount
Principal Book Final of Agg. Other
Property Name Date of REO Balance Value Recovery Proceeds Rev. Collected
------------- ----------- --------- ----- -------- -------- --------------
<S> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------------------------
Appraised value of real estate acquired through foreclosure or grant ---------------
of a deed in lieu of foreclosure:
---------------
</TABLE>
<TABLE>
<CAPTION>
Summary of Appraisal Reductions:
---------------------------------------------------------------------------------------------------------------
Principal Appraisal Appraisal Date of
Property Name Loan Number Balance Reduction Amount Date Reduction
------------- ----------- --------- ---------------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00
---------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
Page 4 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
Delinq Delinq Delinq Foreclosure/ Modifi- Pre- Curr
1 Month 2 Months 3+ Months Bankruptcy REO cations payments Weighted Avg.
----------- ----------- ----------- ------------ ----------- ----------- ----------- --------------
Distribution
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance Coupon Remit
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
11/03/97 0 0 0 0 0 0 0 0 0 0 0 0 0 0
0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
Note: Foreclosure and REO Totals are Included in the Appropriate Delinquency Aging Category.
</TABLE>
Page 5 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 DELINQUENT LOAN DETAIL
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
Disclosure Paid Outstanding Out. Property Special
Doc Thru Current P&I P&I Protection Advance Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Description(1) Transfer Date Date Date Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
A. P&I Advance-Loan in Grace Period 1. P&I Advance-Loan delinquent 1 month 3. P&I Advance-Loan delinquent 3 months or More
B. P&I Advance-Late Payment but less 2. P&I Advance-Loan delinquent 2 months 4. Matured Balloon/Assumed Scheduled Payment
than one month delinquent
====================================================================================================================================
** Outstanding P&I Advances include the current period P&I Advance
</TABLE>
Page 6 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 POOL TOTAL
</TABLE>
DISTRIBUTION OF PRINCIPAL BALANCES
- -------------------------------------------------------------------------
(2) Current Scheduled Number (2) Scheduled Based on
Balances of Loans Balance Balance
=========================================================================
$0 to $500,000
$500,000 to $1,000,000
$1,000,000 to $1,500,000
$1,500,000 to $2,000,000
$2,000,000 to $2,500,000
$2,500,000 to $3,000,000
$3,000,000 to $3,500,000
$3,500,000 to $4,000,000
$4,000,000 to $5,000,000
$5,000,000 to $6,000,000
$6,000,000 to $7,000,000
$7,000,000 to $8,000,000
$8,000,000 to $9,000,000
$9,000,000 to $10,000,000
$10,000,000 to $11,000,000
$11,000,000 to $12,000,000
$12,000,000 to $13,000,000
$13,000,000 to $14,000,000
$14,000,000 to $15,000,000
$15,000,000 & Above
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
Average Scheduled Balance is 0
Maximum Scheduled Balance is 0
Minimum Scheduled Balance is 0
DISTRIBUTION OF PROPERTY TYPES
- -------------------------------------------------------------------------
Number (2) Scheduled Based on
Property Types of Loans Balance Balance
=========================================================================
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
DISTRIBUTION OF MORTGAGE INTEREST RATES
- -------------------------------------------------------------------------
Current Mortgage Number (2) Scheduled Based on
Interest Rate of Loans Balance Balance
=========================================================================
7.000% or less
7.000% to 7.125%
7.125% to 7.375%
7.375% to 7.625%
7.625% to 7.875%
7.875% to 8.125%
8.125% to 8.375%
8.375% to 8.625%
8.625% to 8.875%
8.875% to 9.125%
9.125% to 9.375%
9.375% to 9.625%
9.625% to 9.875%
9.875% to 10.125%
10.125% & Above
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
W/Avg Mortgage Interest Rate is 0.0000%
Minimum Mortgage Interest Rate is 0.0000%
Maximum Mortgage Interest Rate is 0.0000%
GEOGRAPHIC DISTRIBUTION
- -------------------------------------------------------------------------
Number (2) Scheduled Based on
Geographic Location of Loans Balance Balance
=========================================================================
California
Maryland
Virginia
Georgia
Florida
New Jersey
Arizona
Pennsylvania
Texas
Rhode Island
North Carolina
New York
Kentucky
Utah
Connecticut
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
Page 7 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 POOL TOTAL
</TABLE>
LOAN SEASONING
- -------------------------------------------------------------------------
Number (2) Scheduled Based on
Number of Years of Loans Balance Balance
=========================================================================
=========================================================================
- -------------------------------------------------------------------------
Weighted Average Seasoning is 0.0
DISTRIBUTION OF AMORTIZATION TYPE
- -------------------------------------------------------------------------
Number (2) Scheduled Based on
Amortization Type of Loans Balance Balance
=========================================================================
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
DISTRIBUTION OF REMAINING TERM
FULLY AMORTIZING
- -------------------------------------------------------------------------
Fully Amortizing Number (2) Scheduled Based on
Mortgage Loans of Loans Balance Balance
=========================================================================
60 months or less
61 to 120 months
121 to 180 months
181 to 240 months
241 to 360 months
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
Weighted Average Months to Maturity is 0
DISTRIBUTION OF REMAINING TERM
BALLOON LOANS
- -------------------------------------------------------------------------
Balloon Number (2) Scheduled Based on
Mortgage Loans of Loans Balance Balance
=========================================================================
12 months or less
13 to 24 months
25 to 36 months
37 to 48 months
49 to 60 months
61 to 120 months
121 to 180 months
181 to 240 months
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
Weighted Average Months to Maturity is 0
DISTRIBUTION OF DSCR
- -------------------------------------------------------------------------
Debt Service Number (2) Scheduled Based on
Coverage Ratio (1) of Loans Balance Balance
=========================================================================
0.500 or less
0.500 to 0.625
0.625 to 0.750
0.750 to 0.875
0.875 to 1.000
1.000 to 1.125
1.125 to 1.250
1.250 to 1.375
1.375 to 1.500
1.500 to 1.625
1.625 to 1.750
1.750 to 1.875
1.875 to 2.000
2.000 to 2.125
2.125 & above
Unknown
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
Weighted Average Debt Service Coverage Ratio is 0.000
NOI AGING
- -------------------------------------------------------------------------
Number (2) Scheduled Based on
NOI Date of Loans Balance Balance
=========================================================================
1 year or less
1 to 2 years
2 Years or More
Unknown
=========================================================================
Total 0 0 0.00%
- -------------------------------------------------------------------------
- ----------
(1) Debt Service Coverage Ratios are calculated as described in the prospectus,
values are updated periodically as new NOI figures became available from
borrowers on an asset level.
Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for
this calculation.
Page 8 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 LOAN LEVEL DETAIL
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
Appraisal Property Operating Ending Loan
Disclosure Reduction Type Maturity Statement Principal Note Scheduled Prepayment Status
Control # Amounts Code Date DSCR NOI Date Balance Rate P&I Prepayment Date Code (1)
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
================================================================================
* NOI and DSCR, if available and reportable under the terms of the trust
agreement, are based on information obtained from the related borrower, and
no other party to the agreement shall be held liable for the accuracy or
methodology used to determine such figures.
- --------------------------------------------------------------------------------
(1) Legend: A. P&I Adv in Grace Period 1. P&I Adv-delinquent 1 month
2. P&I Adv-delinquent 2 months
B. P&I Adv less than 3. P&I Adv - delinquent 3+ months
one month delinq. 4. Mat. Balloon/Assumed P&I
5. Prepaid in full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. DPO
11. Modification
================================================================================
Page 9 of 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 SPECIALLY SERVICED LOAN DETAIL
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
Beginning Specially
Disclosure Scheduled Interest Maturity Property Serviced
Control # Balance Rate Date Type Status Code (1) Comments
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
===================================================================================================================================
(1) Legend:
1) Request for waiver of Prepayment Penalty 4) Loan with Borrower Bankruptcy 7) Loans Paid Off
2) Payment default 5) Loan in Process of Foreclosure 8) Loans Returned to Master Servicer
3) Request for Loan Modification or Workout 6) Loan now REO Property
===================================================================================================================================
</TABLE>
APPENDIX A
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 MODIFIED LOAN DETAIL
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
Disclosure Modification Modification
Control # Date Description
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
===================================================================================================================================
</TABLE>
APPENDIX B
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO
LaSalle National Bank
MORGAN STANLEY CAPITAL I INC. Statement Date: 11/03/97
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER Payment Date: 11/03/97
Administrator: COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: NA
SERIES 1997-XL1 Record Date: 10/31/97
Alyssa Stahl (800) 246-5761
135 S. LaSalle Street Suite 1740 ABN AMRO ACCT: 99-9999-99-9
Chicago, IL 60603 REALIZED LOSS DETAIL
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
Beginning Gross Proceeds Aggregate Net Net Proceeds
Dist. Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation as a % of Realized
Date Control # Date Value Balance Proceeds Sched Principal Expenses * Proceeds Sched. Balance Loss
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Current Total 0.00 0.00 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00 0.00 0.00
===================================================================================================================================
* Aggregate liquidation expenses also include outstanding P&I advances and unpaid servicing fees, unpaid trustee fees, etc.
</TABLE>
APPENDIX C
